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
PICKING UP THE FLAG ON ILLEGAL PROCEDURE: WHY RULE 41 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE NEEDS TO BE UPDATED WITH THE TIMES
By: Geoff Koslig, Volume 104 Staff Member The Fourth Amendment’s drafters could have scarcely imagined social media and the internet.[1] For decades, courts have struggled to apply the Amendment to searches of or utilizing new technologies.[2] Recently, courts have struggled with how the Fourth Amendment…
THE BUILDING BLOCKS OF LIFE: CYBER-TRESPASS, THE FOURTH AMENDMENT, AND PUBLIC ANCESTRY DATABASES
By: William C. G. Wright, Volume 104 Staff Member With the advent of affordable commercial DNA testing services such as 23andMe, Ancestry, and MyHeritage, people are flocking to discover the secrets of their genetic code in unprecedented numbers.[1] Researchers expect more than 74 million people…
TITS UP: WHY IT’S TIME FOR THE SUPREME COURT TO RULE ON TOPLESS ORDINANCES
By: Kathryn Campbell, Volume 104 Staff Member The United States loves to exercise control over cis-women’s bodies.[1] Notably, both federal and state governments seemingly fear the exposure of a cis-woman’s exposed “erogenous” areola—although men have them as well.[2] Perhaps the most archaic way in which…
CAKING ON THE MAKEUP: INCREASED REGULATIONS OF SPECIAL EVENTS HAIR AND MAKEUP ARTISTS IN MINNESOTA
By Michaela Liesenberg, Volume 104 Staff Member Nationwide, the wedding industry generates annual revenue of over $78 billion.[1] As weddings are highly photographed events, spouses-to-be spend an average of $225 on hair and makeup services for their special day.[2] In 2019, Minnesota hosted 31,712 weddings…
LET THEM MAKE WINE: DOES THE MINNESOTA FARM WINERY ACT VIOLATE THE DORMANT COMMERCE CLAUSE?
By: Jenni Oprosko, Volume 104 Staff Member Minnesota has a long and complex history with liquor laws. In the 1800’s, Minneapolis created a quasi-zoning scheme to create areas where existing anti-salon laws would not apply.[1] In 1919 a Minnesotan, Andrew Volstead, introduced the act in…
CHAMBER OF COMMERCE FOR GREATER PHILADELPHIA v. CITY OF PHILADELPHIA: UNSUPPORTED AS A MATTER OF FACT, UNJUSTIFIED AS A MATTER OF LAW
By: Nathan Webster, Volume 104 Staff Member The pay-gap between men and women in the United States is well-established. Hispanic women make 58 cents for every dollar a white man makes.[1] Black women make 67 cents for every dollar earned by a white man.[2] White…
DIRECTIONLESS DIRECTIVES: WHY MINNESOTA SHOULD ESTABLISH AN ADVANCE DIRECTIVE REGISTRY
By: Kaitie Eke, Volume 104 Staff Member In recent decades, advance care planning[1] (“ACP”) has gained momentum in the United States.[2] Through advance directives, a person can communicate their preferences and designate agents to make healthcare decisions on their behalf should the individual become incapacitated.[3]…
WHAT’S THE BEEF? CONTROVERSY SURROUNDING THE LABELING OF PLANT-BASED AND CELL-BASED MEAT
By Lexi Pitz, Volume 104 Staff Member Meat consumption is a long-engrained tradition in the American diet. Recently, many American meat consumers are motivated to consume plant-based meat for reasons such as health, animal welfare,[1] and environmental impact.[2] The booming meat alternative industry lacks federal…
STAR WARS?: THE RISE OF THE SPACE FORCE
By: Sarah Nelson, Volume 104 Staff Member George Lucas’s “Episode IV – A New Hope” served as the impetus for what would become the second-highest grossing movie franchise of all time: Star Wars.[1] The 1977 would-be saga that enthralled audiences worldwide featured Jedi Knights and…
STATES CRYING WOLF: MANUFACTURED CRISIS AND EMERGENCY POWER MANIPULATION
By: Abby Oakland, Volume 104 Staff Member Hong Kong was under siege. Mass protests had been ongoing for months, and the government’s attempts to resolve the dispute had fallen short.[1] Tensions between police and protesters continued to escalate, and in a move sparking global criticism,…
