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
An Illusory Sanctuary
AN ILLUSORY SANCTUARY: HOW IMMIGRATION LAW AND POLICY FAIL TO PROTECT IMMIGRANTS FROM DEPORTATION By: Kayla Hoel, Volume 102 Staff Member At two in the morning on October 24, 2017, an ambulance carrying a ten-year-old child to an emergency surgery in Corpus Christi, Texas, was…
The Final Court to the Split
THE FINAL COURT TO THE SPLIT: COULD IN RE ARCHDIOCESE GIVE THE EIGHTH CIRCUIT A CHANCE TO WEIGH IN ON NONCONSENSUAL THIRD-PARTY RELEASES IN CHAPTER 11 BANKRUPTCY PROCEEDINGS? By: Emily Muirhead McAdam, Volume 102 Staff Member The United States Bankruptcy Court for the District of…
(In)definite Detention
(IN)DEFINITE DETENTION: JENNINGS AND THE BACKWARDS DETENTION SYSTEM FOR NON-CITIZENS SEEKING RELIEF By: Nathaniel Gier, Volume 102 Staff Member In the current fiscal year, there are 667,839 immigration cases pending,[1] and the average wait time for cases pending in immigration court was 691 days in…
Jesner v. Arab Bank
JESNER v. ARAB BANK: CORPORATE LIABILITY AND THE “TOUCH AND CONCERN” TEST By: Anthony Ufkin, Volume 102 Staff Member In Jesner v. Arab Bank,[1] the Supreme Court will likely answer the question of whether corporations may be held liable for alleged human rights violations under…
Cruz-Guzman and the Rise of Charter Schools
Cruz-Guzman and the Rise of Charter Schools: How Will the Minnesota Supreme Court Respond to the Resegregation of Schools in the Twin Cities? By: Charles W. Niemann, Volume 102 Staff Member A recent analysis by the Associated Press showed that charter schools are playing a…
Is Simple Better?
IS SIMPLE BETTER?: THE ANSWER TO PARTISAN GERRYMANDERING MAY LIE WITH BENISEK V. LAMONE RATHER THAN GILL V. WHITFORD By: Torie Abbott Watkins, Volume 102 Staff Member In today’s political discourse it is an all but impossible challenge to get Democrats and Republicans to agree…
Let’s Talk About Sex[ual Harassment]
LET’S TALK ABOUT SEX[UAL HARASSMENT]: THE INADEQUACY OF LEGAL PROTECTIONS FOR WORKPLACE SEXUAL HARASSMENT By: Sarah DeWitt, Volume 102 Staff Member Sexual harassment is not a new phenomenon.[1] Sexual harassment affects not only young woman in subservient positions,[2] but also in professional careers.[3] Sexual harassment…
After Marriage Equality
AFTER MARRIAGE EQUALITY: LGBT NONDISCRIMINATION LAWS IN MASTERPIECE CAKESHOP By: Joshua Preston, Volume 102 Staff Member Obergefell v. Hodges (2015) was a watershed moment in extending the full benefits of society to members of the LGBT community.[1] Though the freedom to marry was won, Obergefell…
Armstrong v. Exceptional Child Center
ARMSTRONG V. EXCEPTIONAL CHILD CENTER: WHO SHOULD ENFORCE MEDICAID EQUAL ACCESS? By: Jessica Wheeler, Volume 102 Staff Member Deamonte Driver, a twelve-year-old Medicaid beneficiary, died from an untreated tooth abscess when the infection spread to his brain.[1] His death could have been prevented had his…
What the Tax Bill Means for Students
WHAT THE “TAX CUTS AND JOBS ACT” MEANS FOR STUDENTS: DO WE WANT INCENTIVES OR SIMPLIFICATION? By: Melanie Pulles Benson, Volume 102 Staff Member The new House tax reform bill, the “Tax Cuts and Jobs Act” (“Act”), significantly departs from the current tax code.[1] The…
