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
MARRIAGE MIGHT GET MORE EXPENSIVE: CAN BANKS REQUIRE SPOUSES TO GUARANTEE LOANS?
By: Alec Mitchell, Volume 104 Staff Member I. INTRODUCTION The basic concept of a loan is simple: an individual walks into a bank and the bank gives them money on their promise to pay it back, with interest. But what if the bank is worried…
DIGITAL ASYLUM: WHAT CAN ONLINE SOCIAL GROUPS TELL US ABOUT THE CURRENT STATE OF U.S. ASYLUM LAW?
By: Cooper Christiancy, Volume 104 Staff Member In William Gibson’s 1984 cyberpunk novel Neuromancer, a dystopian technological landscape bounds social identity around lines of class, legality, and cyber-implants.[1] Neuromancer follows the trail of a washed-up antihero whose identity is structured around his interactions with “the…
PUBLIC HEALTH—1, ANTI-VAXXERS—0: WHY YOUR RELIGIOUS BELIEFS SHOULDN’T JEOPARDIZE OUR CHILDREN’S HEALTH AND SAFETY
By: Jessica Szuminski, Volume 104 Staff Member What’s more important: the right to freely practice religion, or the right of children to not die from deadly but eradicable diseases? The state of New York determined that the latter was more pressing on August 23, 2019,…
CRIMINAL PROCEDURE AT 30,000 FEET: FINDING A PROPER VENUE FOR CRIMES COMMITTED DURING AIR TRAVEL
By: Ryan Plasencia, Volume 104 Staff Member Commercial air travel is ubiquitous and essential to the American traveler. Indeed, in 2017 alone, United States citizens accounted for 632 million flight passengers.[1] Outside of the occasional delay or cancellation, the vast majority of these flights were…
GIVE ME YOUR TIRED, YOUR HUNGRY, WHO CAN AFFORD RENT: WHY THE PUBLIC CHARGE RULE IS ARBITRARY AND CAPRICIOUS
By: Mimi Alworth, Volume 104 Staff Member Since the late 1800s, the United States’ immigration policy has maintained that a foreign person seeking to enter the United States can be turned away if she is a “Public Charge.” The definition historically includes only the most…
HOUSING IS JUSTICE: THE MINNEAPOLIS RENTERS PROTECTION ORDINANCE IS A STEP IN THE RIGHT DIRECTION FOR CRIMINAL JUSTICE REFORM
By: Olivia Levinson, Volume 104 Staff Member A single interaction with the criminal justice system can permanently label someone a “dangerous neighbor” and unwanted in communities.[1] Over the summer of 2019, the Minneapolis City Council recently debated how criminal records can be a barrier to…
THE PATH IS CLEARED: A GROWING BODY OF CASE LAW UPHOLDS STATES’ REMOVAL OF NON-MEDICAL VACCINATION EXEMPTIONS; MINNESOTA SHOULD BE NEXT
By: Meredith Gingold, Volume 104 Staff Member INTRODUCTION So far in 2019, two events have taken place: (1) more than 1,200 cases of measles have been reported in the United States, in 31 states so far,[1] and (2) 20 states have introduced legislation to expand…
CARPENTER V. MURPHY: A REEXAMINATION OF THE CREEK NATION IN OKLAHOMA
By: Aron Mozes, Volume 104 Staff Member The pending Supreme Court case Carpenter v. Murphy[i] presents an intersection of the history, laws, and legislative actions surrounding the Creek Nation in Oklahoma, as well as a broader re-examination of the relationship between Native American tribes and…
NO LEG TO STAND ON: HOW THE FEDERAL CIRCUIT IMPROPERLY RESTRICTED THE APPLICATION OF THE COMPETITOR STANDING DOCTRINE TO PATENT CHALLENGERS WHEN ESTABLISHING ARTICLE III STANDING UPON APPEALING AN INTER PARTES REVIEW
By: Ryan Fitzgerald, Volume 104 Staff Member The Federal Circuit’s recent holding in General Electric Co. v United Technologies Corp.[i] increases the difficulty for competitors to challenge the validity of a patent in court after an adverse inter partes review (IPR) decision.[ii] An IPR allows…
A REGULATORY FUMBLE: THE CHANGING REGULATORY SCHEME SURROUNDING GAMBLING AND DAILY FANTASY SPORTS
By: Paul Strey, Volume 104 Staff Member INTRODUCTION On September 26, 2019, the National Football League formally announced that DraftKings would be the official daily fantasy provider for professional football.[1] The partnership allows DraftKings to use the official NFL logo, special highlight reels, and the…
