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Citizenship Disparities

By Emily Ryo and Reed Humphrey | November 21, 2022

By Emily Ryo and Reed Humphrey. Full text.  Citizenship is “nothing less than the right to have rights,” wrote Chief Justice Warren in his Perez v. Brownell dissent. Yet no study to date has been able to systematically investigate agency decisions to grant or deny citizenship in an administrative process called naturalization adjudication. This Article…

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Article

Rethinking the Crime of Rioting

By Nick Robinson | November 21, 2022

By Nick Robinson. Full Text. The fear of riots has long loomed large in the public imagination. This fear is at least partly justified. Riots can present unique challenges, both in the harm they can cause and in the government’s ability to control them. However, from the American colonies to the Civil Rights era, there…

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Article

Unsexing Breastfeeding

By Naomi Schoenbaum | November 21, 2022

By Naomi Schoenbaum. Full Text.  For half a century, constitutional sex equality doctrine has been combating harmful sex stereotypes by invalidating laws that treat women as caregivers and men as breadwinners. Yet decades after the constitutional sex equality revolution unsexed parenting roles, one area of parenting has escaped this doctrine’s exacting gaze: breastfeeding. In the…

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Article

Killing the Motivation of the Minority Law Professor

By Goldburn P. Maynard Jr. | November 21, 2022

By Goldburn P. Maynard Jr. Full Text. This Essay hypothesizes that a significant number of minority junior scholars with radical or non-normative ideas forego those projects or mute them to fit their work within the dominant paradigm of legal scholarship. Even those who move forward and publish their radical or non-normative proposals spend significant time…

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Article

Optional Legislation

By Jacob Bronsther and Guha Krishnamurthi | November 21, 2022

By Jacob Bronsther and Guha Krishnamurthi. Full Text.  Not since the nineteenth century has partisanship been this intense. The only thing that Democrats and Republicans can agree upon, it seems, is that “Washington is broken.” Beyond the chimeras of bipartisanship or enduring one-party rule, this Article proposes a new solution to legislative dysfunction in Washington:…

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Note

Unprotected but Not Forgotten: A Call to Action to Help Federal Judiciary Employees Address Workplace Sexual Misconduct

By Theresa M. Green | November 21, 2022

By Theresa M. Green. Full Text.  Federal judiciary employees are not currently protected by Title VII of the Civil Rights Act of 1964—the federal statute that prohibits workplace discrimination, retaliation, and harassment based on, among other things, a person’s sex. In effect, this means federal judiciary employees are not adequately protected from sexual misconduct. Like…

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Note

The Diversity Formula: A Race-Neutral Playbook for Equitable Student Assignment and its Application to Magnet Schools

By Joshua Gutzmann | November 21, 2022

By Joshua Gutzmann. Full Text.  Contrary to the revisionist history told by some, Brown v. Board of Education did not mark a permanent end to school segregation. Indeed, by some measures, many school districts have experienced increases in racial and socioeconomic segregation over the past few decades. And the impact of this segregation manifests itself…

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Note

Gruel and Unusual: Prison Punishment Diets and the Eighth Amendment

By Jackie Cuellar | November 21, 2022

By Jackie Cuellar. Full Text.  For as long as prisons have existed, food has been used as a mechanism of prisoner control. One of the earliest forms of food as punishment was the aptly named “bread-and-water diet,” providing prisoners with just 700 calories per day. The diet was later deemed cruel and unusual in violation…

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Articles, Essays, & Tributes

Unsexing Breastfeeding

By Naomi Schoenbaum. Full Text.  For half a century, constitutional sex equality doctrine has been combating harmful sex stereotypes by invalidating laws that treat women as caregivers and men as breadwinners. Yet decades after the constitutional sex equality revolution unsexed parenting roles, one area of parenting has escaped this doctrine’s exacting gaze: breastfeeding. In the

Killing the Motivation of the Minority Law Professor

By Goldburn P. Maynard Jr. Full Text. This Essay hypothesizes that a significant number of minority junior scholars with radical or non-normative ideas forego those projects or mute them to fit their work within the dominant paradigm of legal scholarship. Even those who move forward and publish their radical or non-normative proposals spend significant time

Optional Legislation

By Jacob Bronsther and Guha Krishnamurthi. Full Text.  Not since the nineteenth century has partisanship been this intense. The only thing that Democrats and Republicans can agree upon, it seems, is that “Washington is broken.” Beyond the chimeras of bipartisanship or enduring one-party rule, this Article proposes a new solution to legislative dysfunction in Washington:

Citizenship Disparities

By Emily Ryo and Reed Humphrey. Full text.  Citizenship is “nothing less than the right to have rights,” wrote Chief Justice Warren in his Perez v. Brownell dissent. Yet no study to date has been able to systematically investigate agency decisions to grant or deny citizenship in an administrative process called naturalization adjudication. This Article

Rethinking the Crime of Rioting

By Nick Robinson. Full Text. The fear of riots has long loomed large in the public imagination. This fear is at least partly justified. Riots can present unique challenges, both in the harm they can cause and in the government’s ability to control them. However, from the American colonies to the Civil Rights era, there

Notes

Gruel and Unusual: Prison Punishment Diets and the Eighth Amendment

By Jackie Cuellar. Full Text.  For as long as prisons have existed, food has been used as a mechanism of prisoner control. One of the earliest forms of food as punishment was the aptly named “bread-and-water diet,” providing prisoners with just 700 calories per day. The diet was later deemed cruel and unusual in violation

The Diversity Formula: A Race-Neutral Playbook for Equitable Student Assignment and its Application to Magnet Schools

By Joshua Gutzmann. Full Text.  Contrary to the revisionist history told by some, Brown v. Board of Education did not mark a permanent end to school segregation. Indeed, by some measures, many school districts have experienced increases in racial and socioeconomic segregation over the past few decades. And the impact of this segregation manifests itself

Unprotected but Not Forgotten: A Call to Action to Help Federal Judiciary Employees Address Workplace Sexual Misconduct

By Theresa M. Green. Full Text.  Federal judiciary employees are not currently protected by Title VII of the Civil Rights Act of 1964—the federal statute that prohibits workplace discrimination, retaliation, and harassment based on, among other things, a person’s sex. In effect, this means federal judiciary employees are not adequately protected from sexual misconduct. Like

Headnotes

Term Limits and Embracing a Political Supreme Court

By Guha Krishnamurthi. Full Text. In the run up to the 2020 Presidential election, then-candidate Joseph R. Biden, Jr. lamented the increasing dysfunction of the United States Supreme Court and campaigned on rectifying the august institution. This was indeed part of Biden’s general message: a return to norms, normalcy, and mutual respect. The problems with

A Century of Business in the Supreme Court, 1920–2020

By Lee Epstein and Mitu Gulati. Full Text.  A decade and a half into its life, we ask: how pro-business is the Roberts Court? Using a simple objective measure—how often does business win in the Court when it is fighting a non-business—we find that the Roberts Court may be the most pro-business Court in a

Handling the Mayo Powder Keg: Emphasizing Preemption in § 101 Biotechnology Inquiries

By Zachary M. Robole. Full Text.  To incite a jury’s emotions, attorneys have stated that the “clear and convincing” evidentiary standard required to invalidate a patent is the same standard of proof required to justify taking a child away from a parent. Although such statements are likely an evidentiary rule violation, the point is illustrative

“What Has Always Been True”: The Washington Supreme Court Decides That Seizure Law Must Account for Racial Disparity in Policing

By Aliza Hochman Bloom. Full Text. In June, the Washington Supreme Court held that courts must consider an individual’s race as part of the totality of circumstances when determining whether that individual has been seized by a police officer. Like the Fourth Amendment of the U.S. Constitution, Washington’s parallel constitutional provision requires that the determination

Antitrust Reformers Should Consider the Consequences of Mandatory Treble Damages: What the Admonition Against Putting New Wine in Old Wineskins Can Teach Us About Antitrust Reform

By Henry J. Hauser, Tiffany L. Lee, and Thomas G. Krattenmaker. Full Text. The debate over antitrust reform is reaching a crescendo. Several proposals have been introduced in Congress and state legislatures to expand the scope of substantive antitrust rules governing marketplace behavior. Missing from the current discussion, however, is careful consideration of whether these

De Novo Blog

HARD LUXURY: MATERIAL ADVERSE EFFECT IN THE LVMH AND TIFFANY MERGER

May 10, 2022

By: Rachel Wynn, Business Law Clinic Student Director & Emily Buchholz, Executive Director of the Corporate Institute Since the COVID-19 pandemic, material adverse effect claims have increased in Delaware courts. A material adverse effect (“MAE”) is a change in circumstances that is reasonably expected to significantly diminish the value of a company. MAE clauses are…

STEALING FROM YOUR STUDENTS: THE HIDDEN KEY IN THE HIGHER EDUCATION ACT TO HOLD LEADERS OF FOR-PROFIT COLLEGES PERSONALLY LIABLE FOR FRAUD

April 6, 2022

By: Kylee Evans, Volume 106 Staff Member Student debt in the United States has hit a historic high.[1] The estimated total student loan debt as of March 2022 is $1.749 trillion.[2] Of that, the federal government owns about $1.61 trillion.[3] Legal scholars have long compared this debt to the mortgage bubble that led to the…

MEANINGFUL BUT NOT PERFECT REVIEW: IMPLIED PRECLUSION OF FEDERAL JURISDICTION AND AXON ENTERPRISE, INC. V. FTC

April 4, 2022

By: Jason Gutierrez, Vol. 106 Staff Member I. BACKGROUND, DOCTRINE, AND AXON’S ARGUMENT May a party arguing that the structure of the Federal Trade Commission (FTC) violates the constitution bypass the FTC’s administrative review process and bring suit in federal court? Last summer, Axon Enterprise, Inc. presented this question to the United States Supreme Court…

COPPER-NICKEL MINING AND THE MINNESOTA DEPARTMENT OF NATURAL RESOURCES’ DUAL MANDATE: HOW TO ENSURE ENVIRONMENTAL CONSEQUENCES IN THE INDUSTRY CAN BE ALLEVIATED

April 1, 2022

By: Ben Gleekel, Vol. 106 Staff Member Northeast Minnesota may soon host an industrialized corridor of copper-nickel mining operations. The region is the home of the Duluth Complex—a geological formation containing an estimated 4.4 billion tons of copper, nickel, and other precious metals,[1] making it one of the largest untapped copper deposits in the world.[2]…

SCOTUS TAKES ON WOTUS: PREVIEWING SACKETT V. EPA AND ITS CONSEQUENCES FOR THE CLEAN WATER ACT

March 30, 2022

By: Sean Downey, Volume 106 Staff Member With its grant of certiorari in Sackett v. EPA, the Supreme Court will take its fourth try at resolving a question that has vexed courts, agencies, lawyers, and landowners: what are “Waters of the United States (WOTUS)?”[1] The Clean Water Act (CWA) prohibits the discharge of pollutants into…