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Headnote

Defining Common and Individual Issues in Class Actions: What a Reasonable Jury Could Do

By Aaron D. Van Oort and John L. Rockenbach | October 30, 2024

Defining Common and Individual Issues in Class Actions: What a Reasonable Jury Could Do By Aaron D. Van Oort and John L. Rockenbach Full essay here. The distinction between common and individual issues is the single most important concept in the modern class action, and it is the one that most bedevils courts in practice.…

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Headnote

The Supreme Court’s Opinion in SEC v. Jarkesy Has the Potential To Be Extremely Destructive

By Richard J. Pierce, Jr. | October 30, 2024

The Supreme Court’s Opinion in SEC v. Jarkesy Has the Potential To Be Extremely Destructive By Richard J. Pierce, Jr. Full essay here. In this essay, Professor Pierce describes the legal framework within which the Supreme Court decided whether an agency could adjudicate a class of disputes prior to its 2024 opinion in SEC. v…

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Article

Substance over Symbolism: Do We Need Benefit Corporation Laws?

By Author Name | October 31, 2024

BY CHENG-CHI (KIRIN) CHANG. Full essay here. Benefit corporation laws have gained traction as mechanisms to integrate societal and environmental objectives into business operations, yet they are arguably superfluous within the existing legal framework. The prevailing belief that corporations must prioritize shareholder wealth above all is not a legal imperative, as evidenced by the flexibility…

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Article

If Lived Experience Could Speak: A Method for Repairing Epistemic Violence in Law and the Legal Academy

By Terrell Carter and Rachel López | November 30, 2024

BY TERRELL CARTER and RACHEL LÓPEZ. Full text. Terrell Carter grew up only a stone’s throw from Drexel University, the institution of higher learning where the other coauthor of this Article, Rachel López, would find her academic home years later. Even as a child, Terrell remembers feeling like other institutions that were miles away, like…

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Article

Informed Bystanders’ Duty to Warn

By Gilat J. Bachar | November 30, 2024

By GILAT J. BACHAR. Full text. Should bystanders with credible knowledge about prospective harm owe a duty of care to future victims? This urgent question comes up in various contexts, from former employers who withhold information about a serial harasser to data brokers who are silent about stalkers that track personal information. Under established common…

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Article

Lawyering in the Age of Artificial Intelligence

By Jonathan H. Choi, Amy B. Monahan, and Daniel Schwarcz | November 30, 2024

By JONATHAN H. CHOI, AMY B. MONAHAN, AND DANIEL SCHWARCZ. Full text. We conducted the first randomized controlled trial to study the effect of AI assistance on human legal analysis. We randomly assigned law school students to complete realistic legal tasks either with or without the assistance of GPT-4, tracking how long the students took…

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Article

Repurposed Energy

By Alexandra B. Klass & Hannah Wiseman | November 30, 2024

By ALEXANDRA B. KLASS & HANNAH WISEMAN. Full Text. Wildfires, weather extremes, and other conditions induced partially by climate change add urgency to the project of accelerating the clean energy transition from fossil fuels to zero-carbon energy infrastructure. Yet the hurdles to accomplishing such a massive industrial-scale transition are daunting. Indeed, large renewable energy generation…

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Article

Reconstruction, and the Unfulfilled Promise of Antitrust

By Bennett Capers and Gregory Day | November 30, 2024

By BENNETT CAPERS and GREGORY DAY. Full Text. Wealth inequality remains as wide, and as troubling, as it was a half-century ago. While scholars have offered various explanations, there is a contributor that has escaped serious scrutiny: state monopoly power. It is not just that there is a long history of states and municipalities using…

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Note

Definite Convictions: United States v. Alt and the Seventh Circuit’s Prohibition on Defining “Beyond a Reasonable Doubt”

By Samuel Buisman | November 30, 2024

By SAMUEL BUISMAN. Full Text. The Seventh Circuit prohibits judges and attorneys from defining “beyond a reasonable doubt” to jurors. While United States v. Alt crystalized this prohibition in early 2023, the circuit has effectively banned definition of the phrase for much longer. Yet, a growing consensus of psychological research into the standard reveals that…

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Note

As Punishment for Arrests: Involuntary Servitude Under the Housekeeping Exception to the Thirteenth Amendment

By Elissa Bowling | November 30, 2024

By ELISSA BOWLING. Full Text. The Thirteenth Amendment reads: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” Yet, in contemporary American jails and prisons, pretrial detainees have been forced to perform…

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Articles, Essays, & Tributes

Informed Bystanders’ Duty to Warn

November 30, 2024

By GILAT J. BACHAR. Full text. Should bystanders with credible knowledge about prospective harm owe a duty of care to future victims? This urgent question comes up in various contexts, from former employers who withhold information about a serial harasser to data brokers who are silent about stalkers that track personal information. Under established common…

Lawyering in the Age of Artificial Intelligence

November 30, 2024

By JONATHAN H. CHOI, AMY B. MONAHAN, AND DANIEL SCHWARCZ. Full text. We conducted the first randomized controlled trial to study the effect of AI assistance on human legal analysis. We randomly assigned law school students to complete realistic legal tasks either with or without the assistance of GPT-4, tracking how long the students took…

Repurposed Energy

November 30, 2024

By ALEXANDRA B. KLASS & HANNAH WISEMAN. Full Text. Wildfires, weather extremes, and other conditions induced partially by climate change add urgency to the project of accelerating the clean energy transition from fossil fuels to zero-carbon energy infrastructure. Yet the hurdles to accomplishing such a massive industrial-scale transition are daunting. Indeed, large renewable energy generation…

Reconstruction, and the Unfulfilled Promise of Antitrust

November 30, 2024

By BENNETT CAPERS and GREGORY DAY. Full Text. Wealth inequality remains as wide, and as troubling, as it was a half-century ago. While scholars have offered various explanations, there is a contributor that has escaped serious scrutiny: state monopoly power. It is not just that there is a long history of states and municipalities using…

Notes

Definite Convictions: United States v. Alt and the Seventh Circuit’s Prohibition on Defining “Beyond a Reasonable Doubt”

November 30, 2024

By SAMUEL BUISMAN. Full Text. The Seventh Circuit prohibits judges and attorneys from defining “beyond a reasonable doubt” to jurors. While United States v. Alt crystalized this prohibition in early 2023, the circuit has effectively banned definition of the phrase for much longer. Yet, a growing consensus of psychological research into the standard reveals that…

As Punishment for Arrests: Involuntary Servitude Under the Housekeeping Exception to the Thirteenth Amendment

November 30, 2024

By ELISSA BOWLING. Full Text. The Thirteenth Amendment reads: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” Yet, in contemporary American jails and prisons, pretrial detainees have been forced to perform…

May Contain Peanuts, Eggs, and a “Natural” Solution: How to Challenge Food Manufacturers’ Harmful Use of Precautionary Allergen Labels

November 30, 2024

By JJ MARK. Full Text. Food allergies are one of the most pressing health issues of our time. Around thirty-three million Americans currently have food allergies, thirteen million of which are severe or life-threatening. These numbers continue to increase at alarming rates, with an estimated one in thirteen children being diagnosed with food allergies every…

Headnotes

Defining Common and Individual Issues in Class Actions: What a Reasonable Jury Could Do

October 30, 2024

Defining Common and Individual Issues in Class Actions: What a Reasonable Jury Could Do By Aaron D. Van Oort and John L. Rockenbach Full essay here. The distinction between common and individual issues is the single most important concept in the modern class action, and…

The Supreme Court’s Opinion in SEC v. Jarkesy Has the Potential To Be Extremely Destructive

October 30, 2024

The Supreme Court’s Opinion in SEC v. Jarkesy Has the Potential To Be Extremely Destructive By Richard J. Pierce, Jr. Full essay here. In this essay, Professor Pierce describes the legal framework within which the Supreme Court decided whether an agency could adjudicate a class…

Substance over Symbolism: Do We Need Benefit Corporation Laws?

October 31, 2024

BY CHENG-CHI (KIRIN) CHANG. Full essay here. Benefit corporation laws have gained traction as mechanisms to integrate societal and environmental objectives into business operations, yet they are arguably superfluous within the existing legal framework. The prevailing belief that corporations must prioritize shareholder wealth above all…

A Great American Gun Myth: Race and the Naming of the “Saturday Night Special”

May 29, 2024

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

June 10, 2024

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

June 10, 2024

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

June 10, 2024

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

MICHIGAN’S NEW POINT OF NO RETURN: EVOLVING AGE RESTRICTIONS ON MANDATORY LIFE WITHOUT PAROLE

November 14, 2023

By Chad Berryman, Volume 108 Staff Member In July 2022, the Michigan Supreme Court decided People v. Parks, in which it held that mandatory life without parole sentences for eighteen-year-olds convicted of first-degree murder violate the Michigan Constitution’s prohibition of cruel or unusual punishment.[1] This ruling…

GRISHAM FLEXES HER GUNS: HOW TO FIRE BACK AT STATE EXECUTIVE ACTION

November 14, 2023

By: Sam Black, Volume 108 Staff Member On Friday, September 8th, New Mexico Governor Michelle Lujan Grisham issued an emergency order suspending the right to carry firearms in public across Albuquerque and the surrounding county for at least thirty days in response to a spate…

WHEN TOTAL DOESN’T MEAN COMPLETE: WHY COURTS SHOULD ADOPT THE STATE CREATED NEED THEORY

April 19, 2023

By: Dylan Schepers, Volume 107 Staff Member Introduction It was the black of midnight in mid-March 2020. Four police officers approached the front door of an apartment in Louisville Kentucky prepared to execute a drug-related search warrant.[1] Breonna Taylor and her boyfriend Kenneth Walker were…

STATE CONSTITUTIONAL A(MN)DMENTS: NOW IS THE TIME FOR THE MINNESOTA LEGISLATURE TO AMEND THE MINNESOTA CONSTITUTION WITH THE EQUAL RIGHTS AMENDMENT

April 18, 2023

By: Evan Dale, Volume 107 Staff Member As the U.S. Supreme Court has retreated on its protection of individual rights,[1] state constitutions have taken on a renewed interest. This became as evident as ever in 2022. With the Supreme Court stripping the rights of women…

MIFPA WITHOUT ICWA: ASSESSING THE FATE OF THE MINNESOTA INDIAN FAMILY PRESERVATION ACT IF THE INDIAN CHILD WELFARE ACT IS OVERTURNED IN BRACKEEN v. HAALAND

April 14, 2023

 By: Ryan Liston, Volume 107 Staff Member The United States and the colonies that predated it have a sordid past when it comes to the treatment of Indigenous people.[1] Among the countless examples of mistreatment, one particularly shameful practice was separating Indigenous children from their…

A TEST OF PRECEDENT, POLICY & HUMANITY: AN ANALYSIS OF FLORIDA’S PROPOSED EXPANSIONS TO STATE CAPITAL PUNISHMENT LAW

April 10, 2023

By: Adam Kolb, Volume 107 Staff Member The death penalty is primitive.[1] The death penalty is ineffective and garners increasing disapproval.[2] The death penalty—though constitutionally challenged and curtailed[3]—is legal in the United States.[4] Now, the extent of its legality is set to be tested yet…

THE CONFEDERATE STAKES OF AMERICAN LAW: THE PARTISAN RISK TO THE FULL FAITH AND CREDIT CLAUSE AND A CONSTITUTIONAL CRISIS IN THE MAKING

April 7, 2023

By: Jordan Boudreaux, Volume 107 Staff Member Article IV, Section 1 of the Constitution requires that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other state.”[1] Conceptually, the Full Faith and Credit Clause…

FREE SPEECH ON CAMPUS SIDEWALKS: SUPREME COURT MAY TAKE AIM AT FIRST AMENDMENT FORUM BALANCING TEST IN KEISTER

April 6, 2023

By: John M. Stack, Volume 107 Staff Member Keister v. Bell is the latest major case petitioned to the Supreme Court to confront classifying the status of a public forum for First Amendment purposes.[1] While the Court is unlikely to grant certiorari, if they do…

I (DON’T) KNOW IT WHEN I SEE IT: THE DANGERS OF DEEPFAKES

April 5, 2023

By: Ryken Kreps, Vol. 107 Staff Member[1] Deepfakes are images, videos, or audio clips created by artificial intelligence that show people doing whatever the deepfake creator wants to show them doing with eerie accuracy.[2] Part I of this Post discusses the background of deepfakes and…

HABITABILITY DEFENSE ON THE FRITZ: RENT POSTING REQUIREMENTS AND CHALLENGES IN MINNESOTA

April 3, 2023

Lucy Dougherty, Volume 107 Staff Member When tenants face an eviction for non-payment of rent in Hennepin County, they may have an affirmative defense to the eviction action if the landlord has broken the covenant of habitability.[1] The covenant of habitability is a statutory right…