Articles, Essays, & Tributes
Major-Questions Lenity
By JOEL S. JOHNSON. Full Text. Both the historic rule of lenity and the new major questions doctrine rest on a fundamental commitment to the separation of powers for important policy questions. In light of that shared justification, the logic of the major questions doctrine in the administrative-law context has much to offer lenity in…
The Economic Structure of Trade Secret Law
By TUN-JEN CHIANG. Full Text. The standard economic account of trade secret law focuses on providing incentives for creating new inventions. The incentive-to-invent theory, however, provides little explanation for why the key doctrinal features of trade secret law are structured the way that they are. For example, providing ex ante incentives to invent does not…
Insurers as Contract Influencers
By DAVID A. HOFFMAN & RICK SWEDLOFF. Full Text. Contract boilerplate degrading consumers’ litigation options is omnipresent, but a little mysterious. And that’s not just because no one reads it. We know that terms mandating arbitration, exculpating liability, requiring individualized litigation, and shifting risk have proliferated in the last generation. But consumer contracts’ production and…
Notes
Exempt but Not Immune: Why the Section 501(c)(3) Tax Exemption Amounts to Federal Financial Assistance and Demands that Private Schools Comply with Title IX
By ELLEN BART. Full Text. Title IX of the Education Amendments Act of 1972 (Title IX) prohibits discrimination on the basis of sex in education programs and activities that receive federal financial assistance and ensures that federal funds are not used to support discriminatory practices. Independent, non-public, educational institutions try to escape compliance with Title…
Pressing Charges: Criminal Fees and the Excessive Fines Clause
By ANNEMARIE FOY. Full Text. Millions of people owe money to the government as a consequence of a criminal charge. But while some of that debt is tied to fines or restitution, much of it is levied as fees, or payments owed to the government for the administration of a defendant’s criminal proceedings. Criminal fees…
Immigration, Federalism, and the Invasion Clauses: Who Has a Seat at the Table in Disputes Over the State Power to Repel “Immigrant Invaders”
By MEGAN NIEMITALO. Full Text. In Arizona v. United States, the Supreme Court famously invalidated an Arizona statute that criminalized immigration violations and empowered state officials to enforce immigration law. Arizona seemed to settle the issue of whether states can regulate immigration for the following decade. In the last year, however, questions around the division…
Headnotes
Volume 110: Fall Issue
Exceptional Cases
By EMILY CAUBLE. Full Text.
Machine Gun Funk: The Unusual Analysis of “Dangerous and Unusual”
By GREGORY S. PARKS & VIVIAN BOLEN. Full Text.
Nipping it in the Bud: The Promise and Perils of Tort Litigation in Addressing the Health Harms of High-THC Products
By REBEKAH NINAN. Full Text.
Volume 108: Symposium Supplement
A Great American Gun Myth: Race and the Naming of the “Saturday Night Special”
By Jennifer L. Behrens and Joseph Blocher. Full Text. At a time when Second Amendment doctrine has taken a strongly historical turn and gun rights advocates have increasingly argued that gun regulation itself is historically racist, it is especially important that historical claims about race…
Refining the Dangerousness Standard in Felon Disarmament
By Jamie G. McWilliam. Full Text. To some, 18 U.S.C. 922(g) is a necessary safeguard that keeps guns out of the hands of dangerous persons. To others, it strips classes of non-violent people of their natural and constitutional rights. This statute makes it a crime…
“Proven” Safety Regulations: Massachusetts 1805 Proving Law As Historical Analogue for Modern Gun Safety Laws
By Billy Clark. Full Text. Concerned by the public health threats posed by certain firearms, the Massachusetts legislature enacts a law to set safety standards for firearms in the Commonwealth. Firearm dealers across the State, including some of the leading manufacturers of the day, not…
Curbing Gun Violence Under PLCAA and Bruen: State Attorney General–Driven Solutions to the Surging Epidemic
By David Lamb. Full Text. At the same time that the deadly toll of gun violence continues to grow in the U.S., now taking nearly 50,000 lives per year, federal lawmakers and courts have increasingly constrained government authorities’ tools for fighting the epidemic. Pursuant to…
De Novo Blog
WHY DOES THE UNITED STATES FAIL TO ADDRESS THE GREEN SUKUK AS AN IDEAL VEHICLE FOR ENVIRONMENT-FORWARD PROJECTS?
By: Sarah Snebold, Volume 105 Staff Member Within a globalized economy, it would be foolish to turn a blind eye to Islamic finance and its respective market. Islamic finance presents the ability to tap into emerging markets within the Middle East, Africa and Asia.[1] Citigroup…
A GALAXY NOT SO FAR AWAY: THE STATES STRIKE BACK AT BIG TECH OVER GOOGLE AND FACEBOOK’S ALLEGED “JEDI BLUE” PRICE-FIXING SCHEME
By: Avery Bennett, Volume 105 Staff Member INTRODUCTION Recently, mounting scrutiny and criticism of technology companies’ business practices have led to well publicized calls for investigations and probes into potentially anticompetitive behavior.[1] Amid these calls to curb the industry’s power, state officials have revealed a…
PRESERVING THE E-MARKET OF IDEAS: HOW A NARROW “RIGHT TO BE FORGOTTEN” EXCEPTION TO SECTION 230 CAN COMBAT DIGITAL HARASSMENT WITHOUT DECIMATING DIGITAL DISCOURSE
By: Jordan Francis, Volume 105 Staff Member Depending on who you ask, we have either handed the levers of public discourse over to the maleficent interests of “Big Tech,” thereby making the Mark Zuckerbergs of the world the arbiters of truth and justice, or we…
PATENT PLEDGING PROBLEMS: THE OPEN COVID PLEDGE AND LONG-TERM SOLUTIONS TO LICENSING INTELLECTUAL PROPERTY IN GLOBAL EMERGENCIES
By: Marra Clay, Volume 105 Staff Member The American intellectual property system has a single primary goal: to encourage creators to make new things that benefit society in exchange for an exclusive right to use and license the creation for a limited time.[1] The United…
A POLL TAX BY ANY OTHER NAME: HOW THE ELEVENTH CIRCUIT ERRED IN UPHOLDING FLORIDA’S PAY-TO-VOTE REQUIREMENT AND WHAT COMES NEXT
By: Dina Kostrow, Volume 105 Staff Member Until recently, Florida was one of only a few states in which citizens convicted of a felony permanently lost the right to vote.[1] In 2018, it looked like the tide was turning. A 64.55% super-majority of Florida voters…
CRUEL AND UNUSUAL: THE SUPREME COURT’S FAILURE TO PROTECT DEATH ROW PRISONERS DURING THE GOVERNMENT’S RECENT RUSH OF EXECUTIONS
By: Julia Potach, Volume 105 Staff Member On July 14, 2020, the federal government executed death row prisoner, Daniel Lewis Lee, and carried out its first federal execution in 17 years.[1] One year earlier, former Attorney General William Barr cleared the way for the government…
RITTMANN V. AMAZON.COM: A WRONG TURN FOR GIG WORKERS LOOKING FOR CLARITY IN THE FEDERAL ARBITRATION ACT
By Zach Krenz, Volume 105 Staffer The Federal Arbitration Act (FAA) makes arbitration clauses enforceable. Section 2, which outlines the breadth of the Act, states that arbitration provisions in contracts “involving commerce . . . shall be valid, irrevocable, and enforceable. . . .”[1] Section…
GETTING WHAT’S DUE: INCARCERATED INDIVIDUALS AND COVID STIMULUS PAYMENTS
By: Mollie Wagoner, Vol. 105 Staff Member In the wake of the pandemic, Congress issued two rounds of payments, commonly referred to as stimulus checks, to a large swath of the American public in an attempt to offset the economic struggles caused by COVID. While…
THE UBIQUITY OF SOCIAL MEDIA DICTATES THE RESULT: WHY THE SUPREME COURT SHOULD AFFIRM THE THIRD CIRCUIT IN MAHANOY AREA SCHOOL DISTRICT V. B.L. AS A MATTER OF NON-DISCRIMINATION
By: Miriam Solomon, Volume 105 Staff Member In B.L. v. Mahanoy Area School District, the plaintiff, a sophomore in high school, was removed from the school cheerleading team after the team coaches learned of a post B.L. made on Snapchat. After participating on the school’s…
THE CASE FOR A CONSTITUTIONAL CHANGE TO TRANSFORM BLACK EDUCATION IN MINNESOTA
Brandie Burris, Volume 105 Staff Member and Incoming EIC for Volume 106 INTRODUCTION Although elected officials and community leaders regularly celebrate Minnesota’s recognition as a leader in public education,[1] these awards and statements hide the true picture.[2] In reality, Minnesota’s public schools, even in…
