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Tea and Donuts

By Derek E. Bambauer and Robert W. Woods | May 10, 2023

By Derek E. Bambauer and Robert W. Woods. Full Text. U.S. trademark law often permits simultaneous use of the same brand by multiple entities. Its approach to deciding when and how this concurrent use is permissible has become antiquated, rooted in outdated assumptions about trade and telecommunications. By using the physical location of mark-users as…

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Article

The Law Enforcement Lobby

By Zoë Robinson and Stephen Rushin | May 10, 2023

By Zoë Robinson and Stephen Rushin. Full Text. The law enforcement lobby represents one of the most important and undertheorized barriers to criminal justice reform. We define the law enforcement lobby as the constellation of entrenched actors within the justice system—particularly police unions, correctional officer unions, and prosecutor associations—that exert an outsized role in policy…

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Article

The Public Stakes of Consumer Law: The Environment, the Economy, Health, Disinformation, and Beyond

By Rory Van Loo | May 10, 2023

By Rory Van Loo. Full Text. Consumer law has a conflicted and narrow identity. It is most immediately a form of business law, governing market transactions between people and companies. Accordingly, the microeconomic analysis of markets is the dominant influence on consumer law. But consumer law is often described as, and assumed to be about,…

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Article

Automated Agencies

By Joshua D. Blank and Leigh Osofsky | May 10, 2023

By Joshua D. Blank and Leigh Osofsky. Full Text. When individuals have questions about federal benefits, services, and legal rules, they increasingly seek help from government chatbots, virtual assistants, and other automated tools. Most scholars who have studied artificial intelligence and federal government agencies have not focused on the government’s use of technology to offer…

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Article

Antitrust Federalism and the Prison-Industrial Complex

By Gregory Day | May 10, 2023

By Gregory Day. Full Text. States are not only prolific monopolists but also virtually unaccountable. Consider the prison-industrial complex, where states force inmates to pay monopoly prices while suppressing competition for commissary items, phone services, medicine, and more. While the Sherman Act would often ban these types of practices, states are immune from antitrust scrutiny…

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Note

Data Breach Class Actions: How Article III Standing Analysis Should Evolve After TransUnion, LLC v. Ramirez

By Caleb A. Johnson | May 10, 2023

By Caleb A. Johnson. Full Text. Data breaches have become a common occurrence for many people in America. Companies retain consumers’ personal information (SSN, DOB, bank account, credit card, biometrics, etc.) to better serve the consumers as well as to improve their company’s bottom line. Hackers get into those databases to fraudulently use existing consumer…

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Note

Freedom to Pray, Not to Protest

By Leah Reiss | May 10, 2023

By Leah Reiss. Full Text. The Supreme Court has never definitively ruled on the constitutionality of curfews that target political activity. Historically, curfews have been very difficult to challenge. They suffer from mootness issues because they tend to be temporary in nature, so associated harms are also temporary. Likely as a result, challenges to curfews…

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Note

In Defense of (Mental) Hearth and Home: Challenges to § 922(g)(4) in the Wake of New York State Rifle & Pistol Ass’n v. Bruen

By Zachary M. Robole | May 10, 2023

By Zachary M. Robole. Full Text. Individually, discussions about mental illness and firearm possession are at the forefront of American discourse. Intriguingly, the intersection of the two issues produces provocative social and legal questions. 18 U.S.C. § 922(g)(4) bans those who have been involuntarily committed to a mental institution from owning a firearm. This ban is…

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Articles, Essays, & Tributes

Antitrust Federalism and the Prison-Industrial Complex

By Gregory Day. Full Text. States are not only prolific monopolists but also virtually unaccountable. Consider the prison-industrial complex, where states force inmates to pay monopoly prices while suppressing competition for commissary items, phone services, medicine, and more. While the Sherman Act would often ban these types of practices, states are immune from antitrust scrutiny

Tea and Donuts

By Derek E. Bambauer and Robert W. Woods. Full Text. U.S. trademark law often permits simultaneous use of the same brand by multiple entities. Its approach to deciding when and how this concurrent use is permissible has become antiquated, rooted in outdated assumptions about trade and telecommunications. By using the physical location of mark-users as

The Law Enforcement Lobby

By Zoë Robinson and Stephen Rushin. Full Text. The law enforcement lobby represents one of the most important and undertheorized barriers to criminal justice reform. We define the law enforcement lobby as the constellation of entrenched actors within the justice system—particularly police unions, correctional officer unions, and prosecutor associations—that exert an outsized role in policy

The Public Stakes of Consumer Law: The Environment, the Economy, Health, Disinformation, and Beyond

By Rory Van Loo. Full Text. Consumer law has a conflicted and narrow identity. It is most immediately a form of business law, governing market transactions between people and companies. Accordingly, the microeconomic analysis of markets is the dominant influence on consumer law. But consumer law is often described as, and assumed to be about,

Automated Agencies

By Joshua D. Blank and Leigh Osofsky. Full Text. When individuals have questions about federal benefits, services, and legal rules, they increasingly seek help from government chatbots, virtual assistants, and other automated tools. Most scholars who have studied artificial intelligence and federal government agencies have not focused on the government’s use of technology to offer

Notes

In Defense of (Mental) Hearth and Home: Challenges to § 922(g)(4) in the Wake of New York State Rifle & Pistol Ass’n v. Bruen

By Zachary M. Robole. Full Text. Individually, discussions about mental illness and firearm possession are at the forefront of American discourse. Intriguingly, the intersection of the two issues produces provocative social and legal questions. 18 U.S.C. § 922(g)(4) bans those who have been involuntarily committed to a mental institution from owning a firearm. This ban is

Freedom to Pray, Not to Protest

By Leah Reiss. Full Text. The Supreme Court has never definitively ruled on the constitutionality of curfews that target political activity. Historically, curfews have been very difficult to challenge. They suffer from mootness issues because they tend to be temporary in nature, so associated harms are also temporary. Likely as a result, challenges to curfews

Data Breach Class Actions: How Article III Standing Analysis Should Evolve After TransUnion, LLC v. Ramirez

By Caleb A. Johnson. Full Text. Data breaches have become a common occurrence for many people in America. Companies retain consumers’ personal information (SSN, DOB, bank account, credit card, biometrics, etc.) to better serve the consumers as well as to improve their company’s bottom line. Hackers get into those databases to fraudulently use existing consumer

Headnotes

Tattoos, Norms, and Implied Licenses

By Aaron Perzanowski. Full Text. This Essay considers the legal questions raised by a recent flurry of tattoo copyright disputes and their intersection with industry norms. In particular, Perzanowski argues that public displays, reproductions, derivative works, and other uses of tattoo designs fall within the scope of a broad implied license when they are employed

The Ethics of Abortion Ban Exceptions: Is the “Life-Threatening” Exception Threatening Lives?

By Mary E. Fleming. Full Text. Forty-three states have laws that outlaw abortion except when necessary to save the life of the mother. The exact language used in each state’s respective law varies, but for ease, this Essay will refer to all variations as “life-threatening” exceptions to abortion prohibitions. Prior to 2022, issues with life-threatening

Interstate Cannabis Compacts: The Road to a Regional Legal Cannabis Economy

By Michael J.K.M. Kinane. Full Text. Since the passage of the Controlled Substances Act in 1970, cannabis has been a Schedule I drug. Yet twenty-one states, two territories, and the District of Columbia have legalized recreational cannabis, and even more have legalized it for medical  use. Despite Supreme Court precedent holding the conduct of these

The Battle for the Soul of the GDPR: Clashing Decisions of Supervisory Authorities Highlight Potential Limits of Procedural Data Protection

By Jordan Francis. Full Text. For privacy professionals, 2023 got off to a big start as the Irish Data Protection Commission (DPC) announced €390 million in fines against Meta Platforms Ireland Limited (“Meta”) for General Data Protection Regulation (GDPR) violations by its services Facebook and Instagram. Meta is no stranger to GDPR enforcement, having accumulated

De Novo Blog

CALIBRATING THE SCOPE OF DISCLOSURE: PREVIEWING THE SUPREME COURT’S OPPORTUNITY TO CLARIFY PATENT LAW’S ENABLEMENT STANDARD

March 20, 2023

By: Maxwell H. Terry, Volume 107 Staff Member While the technical subject matter of a patent can grow inordinately complex, the predominant theory underlying patent law is relatively straightforward. In exchange for the right to exclude others from making, using, or selling the invention claimed by a patent, the inventor must disclose the invention to…

THE MOST IMPORTANT DECISION NO ONE IS TALKING ABOUT: WHAT CUMMINGS MEANS FOR THE FUTURE OF CIVIL RIGHTS

February 27, 2023

By: Amy Cohen, Volume 107 Staff Member In what seems like a never-ending string of catastrophic rulings implicating our nation’s future and individual rights,[1] about ten months ago the Supreme Court laid down a major decision altering the availability of remedies for civil rights claimants that has largely gone unnoticed by the public. When petitioner…

A CONVERSATION WITH THE CHIEF: A MODERN REFLECTION ON THE HAPPINESS, HEALTH, AND ETHICS OF THE LEGAL PROFESSION WITH CHIEF JUDGE PATRICK J. SCHILTZ

February 24, 2023

By: Katheryn Furlong, Volume 107 Staff Member Dear Law Student: I have good news and bad news. The bad news is that the profession that you are about to enter is one of the most unhappy and unhealthy on the face of the earth–and, in the view of many, one of the most unethical. The…

LIFE-OR-DEATH LEGALESE: THE EXECUTION OF MATTHEW REEVES AND THE DIRE CONSEQUENCES OF POORLY TARGETED LEGAL DRAFTING

February 23, 2023

By: Earl Lin, Volume 107 Staff Member It is a well-known phenomenon that lawyers often communicate in their own “peculiar language . . . characterized by antique jargon, pomposity, affected displays of precision, ponderous abstractions, and hocus-pocus incantations.”[1] Indeed, lawyers are so notorious for their clumsy writing that a whole cottage industry of gag gifts…

CONTRACTUAL CONUNDRUM: HOW HEALTH AND HOSPITAL CORPORATION V. TALEVSKI HAS THE POTENTIAL TO GUT FEDERAL SAFETY NET LEGISLATION

February 21, 2023

By: Grace Worcester, Volume 107 Staff Member The Supreme Court recently heard oral arguments in Health and Hospital Corporation of Marion County v. Talevski,[1] a case with the potential to strip over eighty million Americans[2] of the ability to seek recourse in the federal courts for state civil rights violations. Talevski originated when the family…