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Can the Excessive Fines Clause Mitigate the LFO Crisis? An Assessment of the Caselaw

By Michael O'Hear | February 21, 2024

By Michael O’Hear. Full Text. The nation’s increasing use of fees, fines, forfeiture, and restitution has resulted in chronic debt burdens for millions of poor and working-class Americans. These legal financial obligations (LFOs) likely entrench racial and socioeconomic divides and contribute to the breakdown of trust in the police and courts in disadvantaged communities. One…

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Article

Subjective Costs of Tax Compliance

By Jonathan H. Choi and Ariel Jurow Kleiman | February 21, 2024

By Jonathan H. Choi and Ariel Jurow Kleiman. Full Text. This Article introduces and estimates the “subjective costs” of tax compliance, which are costs of tax compliance that people experience directly and individually. To measure these costs, we conducted a survey experiment assessing how much taxpayers would pay to reduce the unpleasantness associated with filing…

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Article

Making Whole, Making Better, and Accommodating Resilience

By Erik Encarnacion | February 21, 2024

By Erik Encarnacion. Full Text. The conventional story about compensatory damages is that they aim to make plaintiffs whole, but not better off. This make-whole ideal implies that courts should subtract material gains from compensatory awards because otherwise plaintiffs would be unjustly enriched. This Article undermines this conventional wisdom in three ways. First, it highlights…

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Article

The Roberts Court and the Unraveling of Labor Law

By Courtlyn G. Roser-Jones | February 21, 2024

By Courtlyn G. Roser-Jones. Full Text. Labor law comprises several doctrines and procedures that oversee the relationships between employers, unions, and the workers they represent. These doctrines—the duty of fair representation, exclusivity, good-faith bargaining, captive-audience speech, and rights of equal access—are all component threads to a tapestry designed to facilitate widespread organizing and collective bargaining.…

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Article

Multi-Parent Custody

By Jessica Feinberg | February 21, 2024

By Jessica Feinberg. Full Text. In recent years, a number of jurisdictions have enacted laws recognizing that a child may have more than two legal parents (multi-parentage). Recognition of multi-parentage represents a significant change to the legal framework governing parentage— for most of U.S. history, it was well established that a child could have a…

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Note

Throuples and Family Law

By Philip de Sa e Silva | February 21, 2024

By Philip de Sa e Silva. Full Text. As throuples and other forms of polyamorous relationships gain visibility and acceptance, courts will have to confront the legal issues that will likely arise when a throuple forms and when it dissolves. How should courts determine child custody for three equally situated parents? How should courts divide…

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Note

Americon Dream: Social Pressures and Lackluster Regulation Allow Multi-Level Marketing Companies to Function as De Facto Pyramid Schemes

By Lindsay R. Maher | February 21, 2024

By Lindsay R. Maher. Full Text. The entrepreneurial spirit goes to the heart of the American Dream. Pull yourself up by the bootstraps. Put your nose to the grindstone. If you could just be given the tools to get started, you, too, can make something of yourself with hard work and perseverance. This mindset drives…

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Note

In Defense of Pickering: When a Public Employee’s Social Media Speech, Particularly Political Speech, Conflicts with Their Employer’s Public Service

By Abby Ward | February 21, 2024

By Abby Ward. Full Text. With the rise of social media and the United States’ increasing political polarization, public employees take to social media to post about political issues such as race and policing. But when public employees make posts on political issues in an inflammatory or controversial way, public employers often discipline or fire…

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Headnote

Teaching “Is This Case Rightly Decided?”

By Steven Arrigg Koh | April 15, 2024

By Steven Arrigg Koh. Full Text. “Is this case rightly decided?” From the first week of law school, every law student must grapple with this classroom question. This Essay argues that this vital question is problematically under-specified, creating imprecision in thinking about law. This Essay thus advocates that law professors should present students with a…

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Articles, Essays, & Tributes

Can the Excessive Fines Clause Mitigate the LFO Crisis? An Assessment of the Caselaw

February 21, 2024

By Michael O’Hear. Full Text. The nation’s increasing use of fees, fines, forfeiture, and restitution has resulted in chronic debt burdens for millions of poor and working-class Americans. These legal financial obligations (LFOs) likely entrench racial and socioeconomic divides and contribute to the breakdown of trust in the police and courts in disadvantaged communities. One…

Subjective Costs of Tax Compliance

February 21, 2024

By Jonathan H. Choi and Ariel Jurow Kleiman. Full Text. This Article introduces and estimates the “subjective costs” of tax compliance, which are costs of tax compliance that people experience directly and individually. To measure these costs, we conducted a survey experiment assessing how much taxpayers would pay to reduce the unpleasantness associated with filing…

Making Whole, Making Better, and Accommodating Resilience

February 21, 2024

By Erik Encarnacion. Full Text. The conventional story about compensatory damages is that they aim to make plaintiffs whole, but not better off. This make-whole ideal implies that courts should subtract material gains from compensatory awards because otherwise plaintiffs would be unjustly enriched. This Article undermines this conventional wisdom in three ways. First, it highlights…

The Roberts Court and the Unraveling of Labor Law

February 21, 2024

By Courtlyn G. Roser-Jones. Full Text. Labor law comprises several doctrines and procedures that oversee the relationships between employers, unions, and the workers they represent. These doctrines—the duty of fair representation, exclusivity, good-faith bargaining, captive-audience speech, and rights of equal access—are all component threads to a tapestry designed to facilitate widespread organizing and collective bargaining.…

Multi-Parent Custody

February 21, 2024

By Jessica Feinberg. Full Text. In recent years, a number of jurisdictions have enacted laws recognizing that a child may have more than two legal parents (multi-parentage). Recognition of multi-parentage represents a significant change to the legal framework governing parentage— for most of U.S. history, it was well established that a child could have a…

Notes

Throuples and Family Law

February 21, 2024

By Philip de Sa e Silva. Full Text. As throuples and other forms of polyamorous relationships gain visibility and acceptance, courts will have to confront the legal issues that will likely arise when a throuple forms and when it dissolves. How should courts determine child custody for three equally situated parents? How should courts divide…

In Defense of Pickering: When a Public Employee’s Social Media Speech, Particularly Political Speech, Conflicts with Their Employer’s Public Service

February 21, 2024

By Abby Ward. Full Text. With the rise of social media and the United States’ increasing political polarization, public employees take to social media to post about political issues such as race and policing. But when public employees make posts on political issues in an inflammatory or controversial way, public employers often discipline or fire…

Headnotes

Thirty-Five Years of Inaction: The Unfulfilled Promise of the Medicaid Equal Access Provision

March 2, 2024

By Delaram Takyar. Full Text. In 1989, Congress amended the Social Security Act to ensure that Medicaid recipients would have the same access to medical providers as people covered by private insurance and Medicare. This was meant to remedy the wide disparities in access to…

Teaching “Is This Case Rightly Decided?”

April 15, 2024

By Steven Arrigg Koh. Full Text. “Is this case rightly decided?” From the first week of law school, every law student must grapple with this classroom question. This Essay argues that this vital question is problematically under-specified, creating imprecision in thinking about law. This Essay…

De Novo Blog

Hiring Shouldn’t Give License for Firing

March 9, 2017

HIRING SHOULDN’T GIVE LICENSE FOR FIRING: AFFORDING THE SAME ACTOR INFERENCE APPROPRIATE WEIGHT By: Bailey Drexler, Volume 101 Staff Member In 1991 the Fourth Circuit Court of Appeals articulated what would come to be known as the “same actor inference” in the context of employment…

See You in Court

March 8, 2017

SEE YOU IN COURT: ANALYZING JUDGE GORSUCH’S VIEWS ON THE SEPARATION OF POWERS By: Nathan Rice, Volume 101 Staff Member Judge Neil M. Gorsuch has been cast into a political warzone since his nomination on January 31 to fill the late Antonin Scalia’s now long-vacant…

Comparing and Contrasting the Legal Challenges to President Trump’s Travel Ban

March 1, 2017

COMPARING AND CONTRASTING THE LEGAL CHALLENGES TO PRESIDENT TRUMP’S TRAVEL BAN By: Richard Canada, Volume 101 Staff Member In the whirlwind first month of Donald Trump’s tenure as President, perhaps no issue has been as controversial or received as much attention as the Executive Order…

Legal Analysis of Trump Executive Order on Refugees

February 27, 2017

LEGAL ANALYSIS OF TRUMP EXECUTIVE ORDER ON REFUGEES By: Stephen Meili, Clinical Professor in Law, University of Minnesota Law School† On January 27, 2017, President Trump issued an Executive Order (“Order”) curtailing entry to the U.S. by immigrants, non-immigrants and refugees in three significant ways:…

Defying Conservationist Ethics

February 24, 2017

DEFYING CONSERVATIONIST ETHICS: A LOOK AT PRESIDENT TRUMP’S ENERGY PLAN By Karrah Johnston, Volume 101 Staff Member Over the course of his presidential campaign, President Donald Trump routinely championed former President Theodore Roosevelt’s conservation legacy. Trump continually asserted that he would follow in the “great…

Microsoft Corp. v. United States

February 23, 2017

MICROSOFT CORP. V. UNITED STATES: SHOULD CONGRESS REVISE THE STORED COMMUNICATIONS ACT? By: Adam Frudden, Volume 101 Staff Member On July 14, 2016, the Court of Appeals for the Second Circuit issued its ruling in the case of Microsoft Corp. v. United States.[1] The long-awaited…

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…

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…

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…

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]…