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
ANTITRUST ENFORCEMENT BY ARBITRATION: DOJ’S USE OF ARBITRATION IN UNITED STATES V. NOVELIS PUTS MATTER OF CONSUMER PROTECTION IN QUESTIONABLE HANDS
By: Hugh Fleming, Volume 104 Staff Member The suit filed by the United States Department of Justice (DOJ) Antitrust Division against Novelis, Inc. began like any other antitrust enforcement action under the Clayton Act,[1] but quickly took an unusual turn: the parties decided to submit…
THE INTERNATIONAL SPECIAL PROSECUTOR’S OFFICE: MINIMIZING PRESIDENTIAL INFLUENCE IN PROSECUTION OF POLITICAL CRIMES AND CORRUPTION
By: Rachel Wydra, Volume 104 Staff Member I. ROGER STONE AND PRESIDENTIAL INFLUENCE OVER CRIMINAL PROSECUTIONS One of the more recent developments in the long saga of the Mueller investigation was the filing of two different government recommendations for the sentencing of Roger Stone.[1] Stone, …
CASH NOT WELCOME HERE: THE TREND (AND BACKLASH) TOWARDS CASHLESS RETAIL
By: Matthew Cavanaugh, Volume 104 Staff Member Michael Rosen really wanted a pair of headphones. So much so, in fact, that he filed a lawsuit against Continental Airlines (now United Airlines).[1] In 2011, Rosen, an attorney, brought four separate claims against the airline based on…
WHEN CROSS-EXAMINATION INTO A VICTIM’S IMMIGRATION STATUS CROSSES THE LINE: THE RELEVANCY AND RISK OF PREJUDICE OF U VISA EVIDENCE
By: Nick Wolfson, Volume 104 Staff Member Although undocumented immigrants are more likely than citizens to be the victims of crimes committed in the United States, undocumented immigrants are less likely to report those crimes to law enforcement.[1] Fear of removal (deportation) is one reason…
ESPORTS AND THE DUAL DISTRIBUTION PROBLEM
By: Michael Arin, Volume 104 Editor Riot Games, the publisher of the games League of Legends and Valorant, recently released their North America Community Competition Guidelines,[1] which detail conditions for the use of their intellectual property during third-party organized competition.[2] The guidelines include restraints on…
WHEN FINAL MEANS FINAL: AN OVERVIEW OF WHEN A CRIMINAL SENTENCE IS IMPOSED WITH THE FIRST STEP ACT
By: Dan Otsuki, Volume 104 Staff Member Take a moment and consider you are watching a high-profile, maybe even celebrity criminal trial streaming online. Imagine further the jury, after months of listening to testimony and days of deliberating, comes back with a guilty verdict. We…
TELESCOPE MEDIA GROUP V. LUCERO: EIGHT CIRCUIT STRENGTHENS RELIGIOUS FREEDOM ARGUMENTS WHILE UNDERMINING IMPORTANT ANTI-DISCRIMINATION STATUTE
By: Cat Ulrich, Volume 104 Staff Member Minnesota has a long tradition of protecting minorities from discrimination[1], including those in the LGBTQ+ community.[2] One of the most important tools Minnesota has to protect against discrimination is the Minnesota Human Rights Act (MHRA).[3] MHRA states that…
SECOND CHANCES: MINNESOTA SHOULD BAN DE FACTO LIFE SENTENCES FOR JUVENILE OFFENDERS
By: Alina Yasis, Volume 104 Staff Member In the past few decades, advances in psychology and neuroscience have provided us with empirical data supporting the commonsense notion that the brain of a child or adolescent differs significantly from an adult brain.[1] Since the landmark decisions…
FACEBOOK AND THE FRAGMENTED FREE MARKETPLACE OF IDEAS
By: Jonathan Baker, Volume 104 Staff Member When the Framers adopted formal protections to free speech with the ratification of the Bill of Rights in 1791, information exchange and dissemination primarily occurred through “individuals talking one to another, . . . addressing town meetings[,]” or the publication…
NO MORE POLITICAL ADS! WHY TWITTER’S DECISION TO BAN ALL POLITICAL AND CAUSE-BASED ADS IS REALLY OKAY
By: Jenna Hensel, Volume 104 Staff Member “Confirm Judge Brett Kavanaugh!” said President Donald Trump in a political ad posted to Facebook.[1] This is one of many political ads posted on social media by politicians. Social media companies such as Twitter are not regulated by…
