Articles, Essays, & Tributes
Animal Plaintiffs
By Matthew Liebman. Full Text. From endangered Hawaiian songbirds to dolphins deafened by Navy sonar to a neglected horse named Justice, nonhuman animals increasingly appear as plaintiffs in lawsuits alleging their subjection to extinction, abuse, and other injustices. These cases are far more than mere novelties or publicity stunts; they raise important jurisprudential questions about…
Article III and Indian Tribes
By Grant Christensen. Full Text. Among the most basic principles of our federal courts is that they are courts of limited jurisdiction, exercising only those powers delegated to them in Article III. In 1985 the Supreme Court inexplicably created an exception to this constitutional tenet and unilaterally declared a plenary judicial power to review the…
Contract Customization, Sex, and Islamic Law
By Rabea Benhalim. Full Text. Common law has historically deemed marriage and sex outside the right to contract. Yet, couples increasingly use contracts to provide legal rights to the unmarried in a variety of contexts ranging from same-sex relationships to surrogacy. Islamic law, on the other hand, has always conceived of marriage and sexual relationships…
Fixing Disparate Prosecution
Shima Baradaran Baughman and Jensen Lillquist. Full Text. America’s system of public prosecution is broken. Prosecutors who charge harshly or disparately are shielded from any consequences or recourse, and defendants are left with few options. This asymmetry in power results in prosecutors singlehandedly maintaining mass incarceration in the United States and leads to some states…
Platform Unions
By Charlotte Garden. Full Text. How should we regulate social media platforms to prevent harmful treatment of users? Regulators, advocates, and scholars have grappled with this problem for years. Many proposed solutions, ranging from improving privacy disclosures, to promoting competition between platforms, to requiring platforms to pay users for their data, are at best incomplete.…
Notes
Two Is Not Always Better than One: Concurrent Criminal Jurisdiction in Indian Country and the Withering of Tribal Sovereignty Following McGirt and Castro-Huerta
By Marina Berardino. Full Text. There is a violence epidemic plaguing the Native American population across the country. Native women are disproportionality victimized by both sexual and non-sexual violence—over eighty-five percent of Native women are expected to be victims of intimate partner violence, stalking, or sexual violence at some point in their life. Most often,…
The Good, the Bad, and the Unconstitutional: State Attempts to Solve the Defendant Class Action Problem
By Tyler Blackmon. Full Text. While the overwhelming majority of class action lawsuits filed in this country are plaintiff class actions—with named plaintiffs representing larger classes of plaintiffs—Rule 23 of the Federal Rules of Civil Procedure technically permits plaintiffs to sue a named defendant representing a class of defendants as well. However, such suits are…
Modern Statutory Interpolation: Correcting Court-Made Deficiencies in Title VII Law
By Jordan Boudreaux. Full Text. Title VII of the Civil Rights Act of 1964 is a monumentally important piece of legislation that ensures all Americans can enjoy a fair workplace, free of discrimination. Even so, the federal circuits remain split on a significant aspect of Title VII’s interpretation. Notably, in some circuits, employees can still…
Headnotes
Teaching “Is This Case Rightly Decided?”
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
KEEP ROLLING: AFTER PROVIDING AUTOMATIC EXPUNGEMENT FOR CERTAIN MARIJUANA OFFENSES MINNESOTA SHOULD ENACT AUTOMATIC EXPUNGEMENT FOR OTHER CRIMINAL RECORDS
By: Abby Ward, Volume 107 Staff Member The racially discriminatory impact from the War on Drugs is clear,[1] and while marijuana legalization is one step in addressing the inequities of America’s criminal justice system, the work does not end there. States should also enact broader…
CALIBRATING THE SCOPE OF DISCLOSURE: PREVIEWING THE SUPREME COURT’S OPPORTUNITY TO CLARIFY PATENT LAW’S ENABLEMENT STANDARD
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…
THE MOST IMPORTANT DECISION NO ONE IS TALKING ABOUT: WHAT CUMMINGS MEANS FOR THE FUTURE OF CIVIL RIGHTS
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…
A CONVERSATION WITH THE CHIEF: A MODERN REFLECTION ON THE HAPPINESS, HEALTH, AND ETHICS OF THE LEGAL PROFESSION WITH CHIEF JUDGE PATRICK J. SCHILTZ
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…
LIFE-OR-DEATH LEGALESE: THE EXECUTION OF MATTHEW REEVES AND THE DIRE CONSEQUENCES OF POORLY TARGETED LEGAL DRAFTING
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…
CONTRACTUAL CONUNDRUM: HOW HEALTH AND HOSPITAL CORPORATION V. TALEVSKI HAS THE POTENTIAL TO GUT FEDERAL SAFETY NET LEGISLATION
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…
NOT FLYING SOLO: HOW SOUTHWEST’S MASSIVE FLIGHT CANCELLATIONS LED TO SEVERAL CLASS ACTION LAWSUITS
By: Kyra Honkanen, Volume 107 Staff Member I. BACKGROUND Making headlines across the country, Southwest Airlines, the largest domestic airline in the U.S.,[1] canceled over 15,000 of its flights leaving more than one million people[2] stranded or left to find alternative transportation during the peak…
THE SUPREME COURT ‘DIGS’ IN RE GRAND JURY: ITS DECISION TO DISMISS THE CASE AND LEAVE ATTORNEY-CLIENT PRIVILEGE IN THE THREE-CIRCUIT BALANCE
By: E. Isabel Park, Volume 107 Staff Member After the Supreme Court heard oral arguments in In re Grand Jury[1] on January 9, 2023, all that remained was for the Court to decide the case.[2] Instead, two weeks later, the Court dismissed the case as…
A RACE-SYMPATHETIC PATH FORWARD: FOURTH AMENDMENT SEIZURE LAW AND THE CIRCUIT SPLIT ON THE RELEVANCE OF RACE
By: Marina Berardino, Volume 107 Staff Member Despite it being well known that an individual’s race impacts his or her perceptions of and experiences with the police,[1] U.S. Supreme Court jurisprudence remains unclear on the role of race in Fourth Amendment seizure inquiries. Fourth Amendment…
FOOD FOR THOUGHT: THE EMERGENCE OF RIGHT-TO-FOOD LEGISLATION IN THE UNITED STATES
By: Randa Larsen, Volume 107 Staff Member On November 2, 2021, Maine voters did something no other state in the United States has done—they approved an amendment that sets out a constitutional right to food.[1] This Amendment did not come out of thin air. Before…
Thirty-Five Years of Inaction: The Unfulfilled Promise of the Medicaid Equal Access Provision
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…