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
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…
GUILTY UNTIL EXPUNGED: HOW MINNESOTA’S PUBLIC RECORDS POLICIES NEEDLESSLY BURDEN RENTERS
By: Ashley Meeder, Vol. 105 Staff Member If you have $285 for a filing fee and 20 minutes to fill out a form in Minnesota, you can ruin someone’s life.[1] Filing an eviction complaint starts a legal battle, but renters are wounded before they even…
THE LAW DOESN’T CARE ABOUT YOUR FEELINGS: BEN SHAPIRO’S UNSUCCESSFUL FIRST AMENDMENT SUIT AGAINST THE UNIVERSITY OF MINNESOTA AND THE CASE FOR PUBLIC SAFETY-BASED SPEECH RESTRICTIONS
By: Alenah Luthens, Volume 105 Staff Member “Facts don’t care about your feelings” is conservative pundit Ben Shaprio’s trademark phrase.[1] And he’s right. Indeed, the phrase proved particularly true in Young America’s Found. v. Kaler where Shapiro’s free speech lawsuit against the University of Minnesota…
CONTRACTS AND COVID-19: DEFENDING NONPERFORMANCE WITH FRUSTRATED PURPOSE AS A SHIELD
By: Brice Michka, Volume 105 Staff Member As the United States trudged through the most grueling months of the COVID-19 pandemic, countless contracts were affected. Many sporting organizations, including the National Basketball Association, Kentucky Derby, NASCAR, Indianapolis 500, Major League Soccer, National Hockey League, and…
NBA PLAYERS PROTEST: WHY THEIR REFUSAL TO PLAY COULD PROVOKE LEGAL RAMIFICATIONS
By: Jason Leadley, Volume 105 Staff Member On August 23, 2020, police officers shot Jacob Blake, a 29-year-old Black man from Kenosha, Wisconsin, sparking protests.[1] Following the shooting, the Milwaukee Bucks decided not to take the floor in their Game 5 playoff matchup against the…
TAKING CARE: HOW THE LAW CAN INCENTIVIZE PERSONAL RESPONSIBILITY IN AN AGE OF PANDEMICS
By: Nathan Webster, Volume 105 Managing Editor As the United States confronts the Coronavirus pandemic, experts are devoting considerable thought to discerning the best method for overcoming the crisis. While most overt discussions center on the ways medical science can help treat the disease,…
PRISONER’S DILEMMA? HOW THE EIGHTH CIRCUIT RESOLVED A JURISDICTIONAL ODDITY ARISING FROM FEDERAL HABEAS MOTIONS
By: Spencer Davis-Vanness, Volume 104 Staff Member In a recent case, Ralph Duke—prosecuted and convicted in Minnesota during the early 1990s as one of the state’s biggest-ever drug dealers—successfully challenged elements of his conviction under a habeas petition in federal district court in Wisconsin, where…
UNITED STATES V. NEWSOM: CALIFORNIA’S FIGHT AGAINST PRIVATIZED IMMIGRATION DETENTION
By: Natalie Feeney, Volume 104 Staff Member Private prisons have become a focal point of American criminal justice reform in recent years, especially in regard to solving the problem of mass incarceration.[1] According to data from 2017, the number of individuals incarcerated in privately-owned prisons…
CLIMATE CHANGE ISN’T MATERIAL?: HOW PEOPLE OF THE STATE OF NEW YORK V. EXXON MOBIL CORPORATION HIGHLIGHTS THE NEED FOR MANDATORY GREENHOUSE GAS EMISSION DISCLOSURES
By: Han Li, Volume 104 Staff Member Over the past three years, major climate disasters have cost the U.S. over $450 billion.[1] The rate of extreme weather events have doubled over the past five years, meaning these costs will only increase.[2] The threat is anything…
TAP A BUTTON, GET DENIED: UBER’S NONCOMPLIANCE WITH THE ADA
By: Carmen Carballo, Volume 104 Staff Member I. A CRASH COURSE ON UBER & SERVICE ANIMALS The basic idea behind Uber is simple — “tap a button, get a ride.”[1] With this simple concept, Uber grew from a small app-based company in San Francisco[2] to…
