Articles, Essays, & Tributes
Aiming for Answers: Balancing Rights, Safety, and Justice in a Post-Bruen America
By CHAD NOWLAN. Full Text. A foreword to the symposium issue of Minnesota Law Review volume 108.
Firearms Carceralism
By JACOB D. CHARLES. Full Text. Gun violence is a pressing national concern. And it has been for decades. Throughout nearly all that time, the primary tool lawmakers have deployed to stanch the violence has been the machinery of the criminal law. Increased policing, intrusive surveillance, vigorous prosecution, and punitive penalties are showered on gun…
Firearms and the Homeowner: Defending the Castle, the Curtilage, and Beyond
By CYNTHIA LEE. Full Text. In the spring of 2023, a series of back-to-back shootings shook the nation. A Black teenager in Missouri trying to pick up his two younger siblings went to the wrong door and rang the doorbell. The homeowner came to the door with a gun and, without saying a word, fired…
Age Restrictions and the Right to Keep and Bear Arms, 1791–1868
By MEGAN WALSH AND SAUL CORNELL. Full Text. The disproportional misuse of firearms by eighteen-to-twenty-year-olds has long been a problem in America. The concerns are not novel. Nor are legislative responses to this problem a recent development in American law. These limitations are deeply rooted in American legal history. While minimum age gun laws routinely…
Scientific Context, Suicide Prevention, and the Second Amendment After Bruen
By ERIC RUBEN. Full Text. The Supreme Court declared in New York State Rifle & Pistol Ass’n v. Bruen that modern gun laws must be “consistent with this Nation’s historical tradition of firearm regulation” to survive Second Amendment challenges. Scholarship has shown how this test of historical analogy presents difficulties because of how technological, legal,…
Trouble’s Bruen: The Lower Courts Respond
By BRANNON P. DENNING AND GLENN H. REYNOLDS. Full Text. New York State Rifle & Pistol Ass’n v. Bruen revolutionized the understanding of how Second Amendment cases are to be adjudicated. Rejecting the tiered-scrutiny analysis around which the lower courts had coalesced since the 2008 Heller decision, the Court instructed courts to look to history…
The Second Amendment’s Racial Justice Complexities
By DANIEL S. HARAWA. Full Text. The relationship between the Second Amendment and racial justice is complicated. That’s because the relationship between pe- nal administration and racial justice is complicated. The briefing in New York State Rifle & Pistol Association v. Bruen perfectly proves this point. A group of public defenders favored striking down New…
Notes
Answering the Call: How Reconfiguration of the Nation’s Mental Health Crisis Call Line Can Facilitate Reimagination of Community Well-Being and Public Safety
By LUCY CHIN. Full Text. When the 988 Suicide and Crisis Lifeline went live in Summer 2022, communities across the country began to confront the question of how this new, expanded behavioral health resource would integrate into the country’s preexisting, emergency response systems. The program seemed to promise the solution to an increasingly visible problem—as…
The Mississippi River Basin Compact: A New Governance Structure to Save the Mississippi River
By JOHN STACK. Full Text. The Mississippi River is one of the most significant and yet one of the most imperiled water bodies in the United States. It faces a myriad of problems, from rampant pollution, widespread flooding, wildlife habitat loss, and considerable droughts. Indeed, this is a critical time for the Mississippi River. Fall…
States’ Obligation to Provide for Trans Youth: How Medicaid Requires (Most) States to Provide Access to Puberty Blockers
By GRACE WORCESTER. Full Text. Over the last few years, many states have endeavored to strip minor access to gender-affirming healthcare, and these efforts have seen considerable success. By the end of 2023, twenty-two states had enacted legislation that limits youth access to gender- affirming healthcare. In line with these efforts, many states have created…
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…
Erasing Racial Harms in CFPB v. Community Financial Services Association
By Callan Showers. Full Text. Professor Allan Freeman’s “perpetrator perspective” explains the normative American legal framework that casts racism as an intentional deviation from an otherwise neutral system. Freeman describes the perpetrator perspective as a negative, remedial dimension casting discrimination as an isolated action by…
Should Courts Make It Personal? Virtue-Dependent Doctrine and the Law of Executive Power
By Michael Coenen. Full Text. With The Virtuous Executive, Professor Alan Rozenshtein has given us an impressive and wide-ranging analysis of the relevance of Presidential character to the law of executive power. The article’s central claim is straightforward: The Constitution reflects a “commitment to proper…
Private-Law Attorneys General
By Molly Shaffer Van Houweling. Full Text. The Constitution empowers Congress to “promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The founding-era Congress quickly exercised this power…
Twins at Bat(son), Strikes Are Out: Minnesota’s Opportunity to Restore Batson v. Kentucky by Eliminating Peremptory Strikes
By Samuel Buisman. Full Text. While the Supreme Court’s decision in Batson v. Kentucky is widely hailed by scholars and jurists alike as a triumph of American egalitarianism, time and trial have unmasked its protections as a paper tiger. Despite its purported protections against racially…
American Fiction: Overturning the Doctrine of Immigration Entry Fiction as Established in Shaughnessy v. Mezei
By Dahlia Wilson. Full Text. In 1886, the Supreme Court decided a case called Yick Wo v. Hopkins, which held that any person physically within the United States’ territory would enjoy the protections of the Fourteenth Amendment, regardless of their immigration or citizenship status. In…
Bounded Entities and (Some of) Their Discontents
By Saurabh Vishnubhakat. Full Text. In his new article An Organizational Theory of International Technology Transfer, Professor Peter Lee offers two richly detailed accounts at once. One is a novel theoretical framework of “bounded entities” that generalizes both from the classic theory of the firm…
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
HAS THAT NATION SIGNED?: HOW THE TENTH CIRCUIT’S DECISION IN MOBLEY CAN RESULT IN SERIOUS IMPLICATIONS FOR INTERNATIONAL PARENTAL KIDNAPPING
By: Cole Benson, Volume 105 staff member The case of United States v. Mobley was decided by the Tenth Circuit on August 21, 2020.[1] Mobley held that defendant parents who are found guilty for international kidnapping are not liable for restitution under 18 U.S.C. §…
STOPPING GAMESTOP’S “GAMESTONK”: WHY COURTS MUST CONFRONT GAMESTOP COLLUDERS AND PROHIBIT OPEN-MARKET MANIPULATION
By: Casey Epstein, Vol. 105 Note & Comment Editor INTRODUCTION Throughout January and into February, online traders frantically purchased GameStop stock, driving the down-on-its-luck company’s stocks into the stratosphere.[1] The GameStop investors—primarily small-scale Reddit users—have openly colluded against large hedge funds with short positions…
TWIST IT, PULL IT, BOT IT: DEVUMI, BOTS, AND THE END OF THE FTC’S POLITICAL NEUTRALITY
By: Lee Silberberg, Vol. 105 Staffer The FTC has broad authority under § 5(a) of the Federal Trade Commission Act to protect consumers from, “unfair or deceptive acts or practices in or affecting commerce[.]”[1] Under this grant of power, the FTC has the broad power…
NOBODY WINS WITH SILENCE: WHY STATE GOVERNMENTS SHOULD LEVERAGE COVID-19 RELIEF TO DETER WORKPLACE GAG ORDERS
By: Frances Daniels, Volume 105 Staff Member INTRODUCTION The year 2020 has brought an unprecedented level of stress into the life of the average U.S. citizen;[1] a global pandemic, a highly polarized political election, civil unrest in the wake of the killing of George Floyd,…
DEFAMATION IN 280 CHARACTERS OR LESS: HOW DEFAMATION CASE LAW SHOULD EVOLVE TO HOLD POLICE ACCOUNTABLE FOR HARMFUL TWEETS
By: Eura Chang, Volume 105 Staff Member On June 1, 2020, people across the nation took to the streets to protest the murder of George Floyd at the hands of Minneapolis police and police brutality.[1] That same day, the Columbus Police Department (CPD), located in…
ACCESS DENIED: @REALDONALDTRUMP AND THE FIRST AMENDMENT
By: Emilie Erickson, Volume 105 Staff Member Although former-President Obama revolutionized using social media for political mobilization,[1] President Trump’s use evolved Twitter into a real political tool “fully integrated . . . into the very fabric of his administration.”[2] From claiming voter fraud[3] to announcing…
WHEN VIRAL VIDEOS BECOME A NATIONAL SECURITY THREAT: TIKTOK INC. V. TRUMP
By: Haille Laws, Volume 105 Staff Member On August 23, 2019, President Donald Trump tweeted that “American companies are hereby ordered to immediately start looking for an alternative to China, including bringing . . . your companies [home] and making products in the USA.”[1] In…
BUT I WANT TO BE FIRST: A COURT’S CURIOUS CHOICE OF REMEDY TO MINNESOTA’S CHALLENGED BALLOT ORDER STATUTE
By: Billy Price, Volume 105 Staffer Before a single general election ballot was cast, commentators were already referring to the 2020 election as “on track to the be the most litigated ever,”[1] thanks in large part to lawsuits concerning the complexities of voting during the…
AN UNEQUAL RIGHT TO VOTE: WHY COURTS SHOULD HOLD THAT DISPROPORTIONATE ALLOCATIONS OF BALLOT DROP BOXES AND POLLING PLACES VIOLATE THE EQUAL PROTECTION CLAUSE
By: Elliot Ergeson, Volume 105 Staff Member Voter suppression is a prominent issue in American elections.[1] One mechanism by which States engage in voter suppression is by closing or limiting the number of polling places in certain areas.[2] During the COVID-19 pandemic, however, many voters…
IS THE GREEN NEW DEAL DEAD ON ARRIVAL? THE CASE FOR “JUSTICE-PROOFING” PROGRESSIVE CLIMATE LEGISLATION IN THE NEW ACB-ERA
By: Alexandria Dolezal, Volume 105 Staff Member On September 18, 2020, Justice Ruth Bader Ginsburg died at age 87, after a long battle with pancreatic cancer.[1] Days before her death she communicated to her granddaughter that her “most fervent wish [was] that [she] not be…
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…