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A Hill to Die On: Federal Court Reform in the 2020s

By Daniel P. Suitor | September 7, 2022

Symposium Foreword by Daniel P. Suitor. Full Text. Is the Federal Judiciary broken and, if so, what can we do to fix it? To that end, Minnesota Law Review hosted its annual Symposium on March 25, 2022. Titled “A Hill to Die On: Federal Court Reform in the 2020s,” the event gathered some of the…

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Nonpartisan Supreme Court Reform and the Biden Commission

By Daniel Epps | September 7, 2022

By Daniel Epps. Full Text. Prior to his election to the Presidency, Joe Biden promised to create a bipartisan commission that would consider and evaluate reforms to the Supreme Court of the United States. Shortly after his inauguration, he did just that, announcing a thirty-six-member Commission on the Supreme Court. Made up of distinguished scholars…

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Reflections of a Supreme Court Commissioner

By William Baude | September 7, 2022

By William Baude. Full Text. The Presidential Commission on the Supreme Court of the United States was given a fundamentally frustrating task: bipartisan expert analysis of an institution whose greatest challengers are political. I served on that commission and offer my own views on Supreme Court reform: Court packing is lawful but unjustified. Term limits,…

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Note

One Nation Subsidizing God: How the Implementation of the Paycheck Protection Program Revealed the Deteriorating Wall Between Church and State

By Elliot Ergeson | September 7, 2022

By Elliot Ergeson. Full Text. The wall separating Church and State is at risk of collapse. The Religion Clauses of the United States Constitution act in tandem to en- sure that the freedom of religion is protected. Over the past three decades, however, the Supreme Court has steadily chipped away at the Establishment Clause while…

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“Black First, Children Second”: Why Juvenile Life Without Parole Violates the Equal Protection Clause

By Avery Katz | September 7, 2022

By Avery Katz. Full Text. The United States is the only country in the world that allows imposition of juvenile life without parole (LWOP) sentences. This sentencing scheme was born out of the 1990’s “tough on crime” era, when society held the belief that juvenile offenders were “super-predators” and should face adult time for adult…

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Articles, Essays, & Tributes

Nonpartisan Supreme Court Reform and the Biden Commission

By Daniel Epps. Full Text. Prior to his election to the Presidency, Joe Biden promised to create a bipartisan commission that would consider and evaluate reforms to the Supreme Court of the United States. Shortly after his inauguration, he did just that, announcing a thirty-six-member Commission on the Supreme Court. Made up of distinguished scholars

Reflections of a Supreme Court Commissioner

By William Baude. Full Text. The Presidential Commission on the Supreme Court of the United States was given a fundamentally frustrating task: bipartisan expert analysis of an institution whose greatest challengers are political. I served on that commission and offer my own views on Supreme Court reform: Court packing is lawful but unjustified. Term limits,

A Hill to Die On: Federal Court Reform in the 2020s

Symposium Foreword by Daniel P. Suitor. Full Text. Is the Federal Judiciary broken and, if so, what can we do to fix it? To that end, Minnesota Law Review hosted its annual Symposium on March 25, 2022. Titled “A Hill to Die On: Federal Court Reform in the 2020s,” the event gathered some of the

Notes

“Black First, Children Second”: Why Juvenile Life Without Parole Violates the Equal Protection Clause

By Avery Katz. Full Text. The United States is the only country in the world that allows imposition of juvenile life without parole (LWOP) sentences. This sentencing scheme was born out of the 1990’s “tough on crime” era, when society held the belief that juvenile offenders were “super-predators” and should face adult time for adult

One Nation Subsidizing God: How the Implementation of the Paycheck Protection Program Revealed the Deteriorating Wall Between Church and State

By Elliot Ergeson. Full Text. The wall separating Church and State is at risk of collapse. The Religion Clauses of the United States Constitution act in tandem to en- sure that the freedom of religion is protected. Over the past three decades, however, the Supreme Court has steadily chipped away at the Establishment Clause while

Headnotes

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

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.

Who Decides Where the Renewables Should Go?: A Response to Danielle Stokes’ Renewable Energy Federalism

By Michael B. Gerrard. Full Text. One of the central tasks in addressing the climate crisis is transitioning from an energy system based on fossil fuels to one that mainly uses renewable energy. In her article “Renewable Energy Federalism,” Professor Danielle Stokes has highlighted one of the key impediments to this transition—delays in state and

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

De Novo Blog

The Presidential Clemency Power and Chelsea Manning

February 14, 2017

THE PRESIDENTIAL CLEMENCY POWER AND CHELSEA MANNING: AN ORIGINALIST PERSPECTIVE By: Caitlin Opperman, Volume 101 Staff Member On his last day in office, President Obama commuted the sentences of 330 people serving time for drug offenses, bringing the total number of commutations issued throughout his presidency to 1,715.[1] Issued mostly throughout his second term, President…

Unprecedented

February 1, 2017

UNPRECEDENTED: PRESIDENT TRUMP’S DIVIDED LOYALTIES By: Emily Atmore, Volume 101 Staff Member Donald Trump’s prominence as an international businessman has raised widespread concerns about conflicts of interest in his newest venture: as President of the United States.[1] Legal experts have relied on a little known section of the Constitution, the Emoluments Clause, in calling on…

Reading the Tea Leaves of Pretextual Protectionism

January 26, 2017

READING THE TEA LEAVES OF PRETEXTUAL PROTECTIONISM: THE FUTURE OF THE U.S.-CUBA RELATIONSHIP By: Charles Barrera Moore, Volume 101 Lead Online Editor In the wake of the death of Cuban dictator Fidel Castro, both President Obama and President Trump acknowledged that the United States is faced with a crucial moment in its relationship with the…

When Food Turns Deadly

January 25, 2017

WHEN FOOD TURNS DEADLY: CRIMINAL LIABILITY FOR RESTAURATEURS THAT DISREGARD PATRONS FOOD ALLERGIES By: Taylor Gess, Volume 101 Staff Member On January 28, 2016, the mother of a five-year-old girl used Panera’s online ordering system to purchase a grilled cheese sandwich for her peanut-allergic daughter.[1] The order’s special instructions section stated “peanut allergy is having…

Elon Take the Wheel

January 24, 2017

ELON TAKE THE WHEEL: MAJOR CHALLENGES THAT AUTONOMOUS CARS WILL PRESENT TO THE LEGAL SYSTEM By: Stephen Maier, Volume 101 Staff Member In May 2016, 40-year-old Joshua Brown was driving a Tesla Model S in “Autopilot mode” when a semi turned in front of him.[1] The self-driving computer did not recognize the truck against the…