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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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Article

Animal Plaintiffs

By Matthew Liebman | April 26, 2024

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…

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Article

Article III and Indian Tribes

By Grant Christensen | April 26, 2024

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…

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Article

Contract Customization, Sex, and Islamic Law

By Rabea Benhalim | April 26, 2024

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…

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Article

Fixing Disparate Prosecution

By Shima Baradaran Baughman and Jensen Lillquist | April 26, 2024

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…

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Article

Platform Unions

By Charlotte Garden | April 26, 2024

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.…

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Note

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 | April 26, 2024

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,…

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Note

The Good, the Bad, and the Unconstitutional: State Attempts to Solve the Defendant Class Action Problem

By Tyler Blackmon | April 26, 2024

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…

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Note

Modern Statutory Interpolation: Correcting Court-Made Deficiencies in Title VII Law

By Jordan Boudreaux | April 26, 2024

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…

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Articles, Essays, & Tributes

Animal Plaintiffs

April 26, 2024

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

April 26, 2024

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

April 26, 2024

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

April 26, 2024

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

April 26, 2024

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

April 26, 2024

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,…

Modern Statutory Interpolation: Correcting Court-Made Deficiencies in Title VII Law

April 26, 2024

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

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

LEGAL LIMBO: THE STATE OF ABORTION CARE FOR MINORS IN MINNESOTA AFTER DOE v. STATE OF MINNESOTA

November 15, 2022

By: Mary Fleming, Volume 107 Staff Member Even before Dobbs v. Jackson Women’s Health Organization brought abortion to center stage at the U.S. Supreme Court, Minnesota abortion law was being litigated in state court.[1] In May of 2019, two advocacy organizations, the Lawyering Project and…

HOW COMPELLING DOES COMPELLING HAVE TO BE?: A MISSED OPPORTUNITY TO REFRAME A COMPELLING GOVERNMENTAL INTEREST IN AFFIRMATIVE ACTION IN THE STUDENTS FOR FAIR ADMISSIONS CASES

November 3, 2022

By: Chad Nowlan, Volume 107 Staff Member This fall the Supreme Court heard oral arguments in two cases brought by Students for Fair Admissions (SFFA), a self-described “nonprofit membership group of . . . students, parents, and others who believe that racial classifications and preferences…

THE ONUS OF TRANSPARENCY: STATE OF WASHINGTON v. META PLATFORMS, INC. ILLUSTRATES THE FIGHT OVER REASONABLE CAMPAIGN FINANCE DISCLOSURE LAW AND FIRST AMENDMENT PROTECTED SPEECH VIOLATIONS

November 2, 2022

By: Lindsay Maher, Volume 107 Staff Member Campaign finance disclosure laws are being questioned and limited in states across the country. In many states, legislatures have passed laws to prevent future requests for disclosure to non-profit organizations that donate to political candidates or parties.[1] In…

MIXED MESSAGING: PREVIEWING 303 CREATIVE AND ITS PLACE IN CURRENT FREE SPEECH JURISPRUDENCE

November 1, 2022

By: Samuel E. Ferguson, Volume 107 Staff Member This term, the Supreme Court of the United States will decide 303 Creative LLC v. Elenis.[1] The Court will decide whether a Colorado public accommodation law violates the Free Speech Clause of the First Amendment by compelling…

UN(PrEP)ARED: HOW BRAIDWOOD v. BECERRA COULD LEAVE PUBLIC HEALTH OFFICIALS SCRAMBLING

October 31, 2022

By: Tyler Blackmon, Volume 107 Staff Member On September 7, 2022, a federal district court granted summary judgment to an employer who refused to cover an anti-HIV, pre-exposure prophylaxis drug (PrEP) because doing so would make that employer “complicit in facilitating homosexual behavior.”[1] The judge,…

NO REASSURANCE FROM INSURANCE: INSURANCE COMPANIES ARE TRYING TO AVOID BIPA LITIGATION BY USING ROBUST EXCLUSION CLAUSES AND COURTS ARE UNIMPRESSED

October 25, 2022

By: Katherine Vu, Volume 107 Staff Member Insurance companies are the new plaintiffs taking center stage in recent litigation under the Illinois Biometric Information Privacy Act (BIPA).[1] Enacted in 2008, BIPA aims to protect individuals by regulating the collection and dissemination of their biometric data…

HARD LUXURY: MATERIAL ADVERSE EFFECT IN THE LVMH AND TIFFANY MERGER

May 10, 2022

By: Rachel Wynn, Business Law Clinic Student Director & Emily Buchholz, Executive Director of the Corporate Institute Since the COVID-19 pandemic, material adverse effect claims have increased in Delaware courts. A material adverse effect (“MAE”) is a change in circumstances that is reasonably expected to…

STEALING FROM YOUR STUDENTS: THE HIDDEN KEY IN THE HIGHER EDUCATION ACT TO HOLD LEADERS OF FOR-PROFIT COLLEGES PERSONALLY LIABLE FOR FRAUD

April 6, 2022

By: Kylee Evans, Volume 106 Staff Member Student debt in the United States has hit a historic high.[1] The estimated total student loan debt as of March 2022 is $1.749 trillion.[2] Of that, the federal government owns about $1.61 trillion.[3] Legal scholars have long compared…

MEANINGFUL BUT NOT PERFECT REVIEW: IMPLIED PRECLUSION OF FEDERAL JURISDICTION AND AXON ENTERPRISE, INC. V. FTC

April 4, 2022

By: Jason Gutierrez, Vol. 106 Staff Member I. BACKGROUND, DOCTRINE, AND AXON’S ARGUMENT May a party arguing that the structure of the Federal Trade Commission (FTC) violates the constitution bypass the FTC’s administrative review process and bring suit in federal court? Last summer, Axon Enterprise,…

COPPER-NICKEL MINING AND THE MINNESOTA DEPARTMENT OF NATURAL RESOURCES’ DUAL MANDATE: HOW TO ENSURE ENVIRONMENTAL CONSEQUENCES IN THE INDUSTRY CAN BE ALLEVIATED

April 1, 2022

By: Ben Gleekel, Vol. 106 Staff Member Northeast Minnesota may soon host an industrialized corridor of copper-nickel mining operations. The region is the home of the Duluth Complex—a geological formation containing an estimated 4.4 billion tons of copper, nickel, and other precious metals,[1] making it…