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Article

Rescinding Rights

By Joseph Landau | July 18, 2022

By Joseph Landau. Full text. In the wake of the Trump Administration’s three Supreme Court appointments, many commentators are bracing for a rightward shift in jurisprudence that could undermine a litany of civil rights and equality protections—including reproductive rights, LGBTQ rights, race-and ethnicity-centered protections, voting rights, and more. Yet the Court’s apparent disinclination for advancing…

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Article

Renewable Energy Federalism

By Danielle Stokes | July 18, 2022

By Danielle Stokes. Full text. No one seriously questions that an improved and decarbonized energy supply system is a key component of climate change mitigation, but the United States’ system of federalism complicates the siting of utility-scale renewable energy facilities. The Biden Administration presents the United States with an opportunity to reimagine how this country…

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Article

The Costs of the Punishment Clause

By Cortney E. Lollar | July 18, 2022

By Cortney E. Lollar. Full Text. In recent years, scholars and advocates have drawn attention to the problematic use of fines and fees to keep those convicted of crimes enmeshed in the criminal legal system. A visible thread connects the imposition of modern criminal court debts to the costs inflicted on formerly enslaved individuals convicted…

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Article

Antitrust, Attention, and the Mental Health Crisis

By Gregory Day | July 18, 2022

By Gregory Day. Full Text. Competition for attention is causing a mental health crisis. At issue is that platforms, devices, and applications (“apps”) strive to maximize attention by, as examples, presenting users with curated streams of extremist content. The purpose of doing so is economic: a platform or app’s value is typically derived from the…

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Article

Inheriting Privilege

By Allison Anna Tait | July 18, 2022

By Allison Anna Tait. Full text. All families may be created equal, so to speak. But differences between families in terms of economic wealth, resource networks, and access to cultural capital are both severe and stark. A large part of what shapes this scenery of economic possibility is the legal framework of wealth transfer. Wealth…

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Note

Designer Minor: Creating a Better Legal Regime for Pediatric Cosmetic Procedures

By Hannah Oliason | July 18, 2022

By Hannah Oliason. Full Text. Each year, thousands of minors in the United States undergo elective cosmetic surgeries to “enhance” their appearances. In the case of young children, these surgeries are most often arranged by parents or guardians with little to no state oversight, despite the physical and psychological risks of such procedures. This Note…

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Note

Too Hot to Handle?: Native Advertising and the Firestone Dilemma

By Eliezer Joseph Silberberg | July 18, 2022

By Eliezer Joseph Silberberg. Full Text. Native advertisements are advertisements that mimic the format and content of unpaid-for content that surrounds them. Instead of interrupting the content being consumed, native advertisements become part of that content, and because of this unique format, consumers often want to engage with native advertisements. This reformulation of advertising has…

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Tribute

Remembrance of and Tribute to Walter F. Mondale

By Amy Klobuchar | July 21, 2022

By Amy Klobuchar. Full Text. This volume of Minnesota Law Review is dedicated to the memory of the Honorable Walter F. Mondale, former Vice President of the United States of America. A 1956 graduate of the University of Minnesota Law School and an editor of Minnesota Law Review Volume 39, Mondale was the 42nd Vice…

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Articles, Essays, & Tributes

Understanding Chilling Effects

By Jonathon W. Penney. Full Text. With digital surveillance and censorship on the rise, the amount of data available unprecedented, and corporate and governmental actors increasingly employing emerging technologies like artificial intelligence and facial recognition technology for surveillance and data analytics, concerns about “chilling effects,” that is, the capacity for these activities to “chill” or

Remembrance of and Tribute to Walter F. Mondale

By 30th Attorney General of Minnesota Keith Ellison. Full Text. This volume of Minnesota Law Review is dedicated to the memory of the Honorable Walter F. Mondale, former Vice President of the United States of America. A 1956 graduate of the University of Minnesota Law School and an editor of Minnesota Law Review Volume 39,

The Input Fallacy

By Talia B. Gillis. Full Text. Algorithmic credit pricing threatens to discriminate against protected groups. Traditionally, fair lending law has addressed such threats by scrutinizing inputs. But input scrutiny has become a fallacy in the world of algorithms. Using a rich dataset of mortgages, I simulate algorithmic credit pricing and demonstrate that input scrutiny fails

Contractual Depth

By Cathy Hwang & Matthew Jennejohn. Full Text. Who is the intended audience of a contract? A court, who may be called upon to resolve a dispute, is one audience. Another is commercial communities, who punish breach with reputational sanctions, per the longstanding literature on informal enforcement. This Article shows how modern contracts have more

Lifting Labor’s Voice: A Principled Path Toward Greater Worker Voice and Power Within American Corporate Governance

By Leo E. Strine, Jr., Aneil Kovvali & Oluwatomi O. Williams. Full Text. In view of the decline in gainsharing by corporations with American workers over the last forty years, advocates for American workers have expressed growing interest in allowing workers to elect representatives to corporate boards. Board level representation rights have gained appeal because

Patent Law’s Deference Paradox

By Paul R. Gugliuzza. Full Text.  Courts frequently defer to the decisions of administrative agencies, particularly when the decision is thoroughly deliberated and within the agency’s realm of technical and legal expertise. Conversely, when an agency gives little thought to a matter or brings no special knowledge to bear, the agency gets little or no

Notes

Too Hot to Handle?: Native Advertising and the Firestone Dilemma

By Eliezer Joseph Silberberg. Full Text. Native advertisements are advertisements that mimic the format and content of unpaid-for content that surrounds them. Instead of interrupting the content being consumed, native advertisements become part of that content, and because of this unique format, consumers often want to engage with native advertisements. This reformulation of advertising has

Designer Minor: Creating a Better Legal Regime for Pediatric Cosmetic Procedures

By Hannah Oliason. Full Text. Each year, thousands of minors in the United States undergo elective cosmetic surgeries to “enhance” their appearances. In the case of young children, these surgeries are most often arranged by parents or guardians with little to no state oversight, despite the physical and psychological risks of such procedures. This Note

Headnotes

K Is for Contract―Why Is It, Though? A K’s Study on the Origins, Persistence and Propagation of Legal Konventions

By Hanjo Hamann. Full Text. Just like Supreme Court Justices, law school students in the United States almost universally abbreviate the word “contract” using the capital letter “K.” Despite this consensus, no one ever sought to explain why a word that starts with “C” should get shortened to “K” instead. This Essay investigates this question.

Chilling Effects and Unequal Subjects: A Response to Jonathon Penney’s Understanding Chilling Effects

By Karen Levy. Full Text. The mark of a strong theoretical argument is that it opens our minds to new empirical questions. In his generative article Understanding Chilling Effects, Jonathon Penney provides a persuasive and nuanced argument for interpreting chilling effects through the lens of social conformity, rather than self-censorship of lawful conduct. Penney’s own

Introduction to The Bremer-Kovacs Collection: Historic Documents Related to the Administrative Procedure Act of 1946 (HeinOnline 2021)

By Emily S. Bremer & Kathryn E. Kovacs. Full Text. Few statutes have a legislative history as rich, varied, and sprawling as the Administrative Procedure Act of 1946 (APA). In recent years, courts and scholars have shown increased interest in understanding this history. This is no mean feat. The APA’s history spans nearly two decades,

K Is for Contract―Why Is It, Though? A K’s Study on the Origins, Persistence and Propagation of Legal Konventions

By Hanjo Hamann. Full Text. Just like Supreme Court Justices, law school students in the United States almost universally abbreviate the word “contract” using the capital letter “K.” Despite this consensus, no one ever sought to explain why a word that starts with “C” should get shortened to “K” instead. This Essay investigates this question.

Racial Bias in Algorithmic IP

By Dan L. Burk. Full Text. Machine learning systems, a form of artificial intelligence (AI), are increasingly being deployed both for the creation of innovative works and the administration of intellectual property (IP) rights associated with those works. At the same time, evidence of racial bias in IP systems is manifest and growing. Legal scholars

Introduction to The Bremer-Kovacs Collection: Historic Documents Related to the Administrative Procedure Act of 1946 (HeinOnline 2021)

By Emily S. Bremer & Kathryn E. Kovacs. Full Text. Few statutes have a legislative history as rich, varied, and sprawling as the Administrative Procedure Act of 1946 (APA). In recent years, courts and scholars have shown increased interest in understanding this history. This is no mean feat. The APA’s history spans nearly two decades,

Sprinting a Marathon: Next Steps for Gender Equity in Criminal Law Employment

By Maryam Ahranjani. Full Text. In an era when women’s hard-fought and hard-earned participation in the workforce is in peril, the ABA Criminal Justice Section’s Women in Criminal Justice Task Force (TF) continues its groundbreaking work of documenting challenges in hiring, retention, and promotion of women criminal lawyers. Sprinting a Marathon follows up on the

Fighting Orthodoxy: Challenging Critical Race Theory Bans and Supporting Critical Thinking in Schools

By Joshua Gutzmann. Full Text. Fox News mentioned critical race theory (CRT) more than 1,900 times from April to mid-July of 2021, marking CRT as a new focus of Republicans and conservative donors and sparking a movement to ban teaching of the theory in schools. Nine states have already passed legislation intended to ban the

Me, Myself, and My Digital Double: Extending Sara Greene’s Stealing (Identity) From the Poor to the Challenges of Identity Verification

By Michele Estrin Gilman. Full Text. Identity is an essential part of the human condition. When one's identity is stolen or when a state rejects a citizen's identity, the consequences can be devastating to one's notion of selfhood as well as undermine their economic security. In Stealing (Identity) from the Poor, Sara Greene explores the

De Novo Blog

A $9 BILLION SURPLUS, YET “KIDS CAN’T READ”: MINNESOTA TEACHER STRIKES MAY VIOLATE STUDENTS’ RIGHTS UNDER THE STATE CONSTITUTION AND THE LEGISLATURE HAS A DUTY TO FIX IT

March 24, 2022

By: Joshua Gutzmann, Volume 106 Staff Member  After almost a full week of no school for over 31,000 students,[1] because teachers are on strike in Minneapolis,[2] the Minneapolis Federation of Teachers President declared that they were “ready to go for as long as it takes.”[3] The strikes—authorized by a vote of over 97% in favor[4]—are…

REMEDYING DECADES OF DISPARITIES IN DRUG SENTENCING: HOW CONCEPCION v. UNITED STATES OPENS THE DOOR FOR BROADER RELIEF IN FIRST STEP ACT RESENTENCING PROCEEDINGS

March 23, 2022

By: Rhianna Torgerud, Volume 106 Staff Member From 1986 to 2010, one gram of crack cocaine was treated as equivalent to 100 grams of powder cocaine when setting federal statutory minimum and maximum sentences.[1] This 100-to-1 sentencing disparity was widely criticized as discriminatory against African Americans, and other minorities, who are more likely to be…

THE UNITED STATES WANTED TO HAVE ITS CAKE, EAT IT, AND AVOID ITS CLEANUP COSTS, TOO

March 22, 2022

By: Olivia Carroll, Volume 106 Staff Member In 2017, the Territory of Guam brought suit against the United States under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), seeking to recover costs spent on the cleanup of a contaminated site that had been previously used for hazardous waste disposal by the U.S.…

WAR POWERS UNDER ATTACK

March 21, 2022

By: Jesse Noltimier, Volume 106 Staff Member On March 29, 2022, the Supreme Court will hear oral arguments in Torres v. Texas Department of Public Safety.[1] The Court will decide whether a veteran can sue the state of Texas, his former employer, for discrimination. Beyond this employment discrimination claim, Torres raises important questions concerning Congress’…

THE SUPREME COURT DILUTES MINORITY VOTER RIGHTS: THE FATE OF THE VOTER RIGHTS ACT FOLLOWING MERRILL V. MILLIGAN

March 16, 2022

By: Justin Oakland, Volume 106 Staff Member Following the 2020 census, a Republican-majority Alabama state legislature voted to redraw congressional districts to functionally dilute the voting power of Black residents.[1] Despite Black voters making up 26.8 percent of Alabama’s population, the redrawn districts only grant Black voters one district of significant representation with the remaining…