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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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Note

“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

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

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

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

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

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,

De Novo Blog

Re-Introducing “Stop and Frisk” or Revisiting It?

January 23, 2017

RE-INTRODUCING “STOP AND FRISK” OR REVISITING IT? By: Anabel Cassady, Volume 101 Staff Member On the evening of August 20, 2008, Leroy Downs was stopped by two plainclothes officers outside his home while making a phone call to a friend.[1] Downs was a black male in his mid-thirties living in Staten Island and working as…

DACA on the Docket

January 19, 2017

DACA ON THE DOCKET By: Nicholas R. Bednar, Volume 100 Lead Articles Editor [1] On December 9, 2016, Senators Lindsey Graham and Dick Durbin introduced the Bridge Act, which would provide temporary protection for undocumented children and young adults who have received immigration benefits under President Obama’s 2012 directive, Deferred Action for Childhood Arrivals (DACA).[2] Under…

Frozen Embryo Forum Shopping

January 18, 2017

FROZEN EMBRYO FORUM SHOPPING: HOW CONFLICTS OF LAW INHIBIT THE LAWSUIT AGAINST SOFIA VERGARA By: Joseph T. Janochoski, Volume 101 Staff Member In December 2016, actress Sofía Vergara[1] was named as the sole defendant in a Louisiana lawsuit filed by her own frozen embryos.[2] The embryos “Emma” and “Isabella” sought to “remedy the prevention of…

Inclusive Communities and the Question of Impact

December 8, 2016

INCLUSIVE COMMUNITIES AND THE QUESTION OF IMPACT: PRO-PLAINTIFF? By: Lauren Clatch, Volume 101 Staff Member In the summer of 2015, the Supreme Court ruled in Texas Dep’t of Housing & Community Affairs v. Inclusive Communities Project, Inc. regarding the viability of disparate impact claims under the Fair Housing Act (FHA).[1] Many have heralded the Court’s…

Phasing Out Private Prisons Is an Important Symbolic Gesture

December 6, 2016

PHASING OUT PRIVATE PRISONS IS AN IMPORTANT SYMBOLIC GESTURE By: Claire Williams, Volume 101 Staff Member On August 18th, the Department of Justice (DOJ) announced that it would begin to phase out its use of private prisons, “either declin[ing] to renew that contract or substantially reduc[ing] its scope in a manner consistent with law and…