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
Patent Apocalypse
PATENT APOCALYPSE: WILL OIL STATES RESURRECT THE VICTIMIZED PATENT RIGHTS OF IPR? By: Clint Maynard, Volume 102 Staff Member Where does a patent go to die? Some patent holders might say the Patent Trials and Appeals Board (PTAB). Since the enactment of the Leahy-Smith America…
“Uber” Uncertainty
“UBER” UNCERTAINTY: WHY COURTS ARE ILL-EQUIPPED TO DETERMINE COMPENSABILITY IN A GIG ECONOMY By: Joshua Greenberg, Volume 102 Staff Member In an increasingly digital world, people are finding new ways to earn a living. Specifically, the “gig economy,” also known as “on-demand employment,” continues to…
Alabama Prisoners’ Cry for Help
A COURT HEARS ALABAMA PRISONERS’ CRY FOR HELP By: J.D. Davis, Volume 102 Staff Member In June of 2017, Judge Myron Thompson issued his second major opinion in a three-part class action lawsuit.[1] This 302-page ruling came out of a massive 2014 lawsuit filed by…
The Algorithm Made Me Do It and Other Bad Excuses
THE ALGORITHM MADE ME DO IT AND OTHER BAD EXCUSES: UPHOLDING TRADITIONAL LIABILITY PRINCIPLES FOR ALGORITHM-CAUSED HARM By: Rebecca J. Krystosek, Volume 101 Staff Member As the outputs of algorithms increasingly pervade our everyday lives—from wayfinding apps and search engine autofill results to investment advice…
All (Privacy) Is Not Lost
ALL (PRIVACY) IS NOT LOST: ATTORNEYS GENERAL AND PRIVACY PROTECTION By: Mitchell Noordyke, Volume 101 Staff Member In March, the House and Senate voted to prevent portions of the FCC Privacy Rule from going into effect.[1] This rule would have required more demanding protocol from…
Pot, Printz, and Preemption
POT, PRINTZ, AND PREEMPTION: WHY STATES CAN “JUST SAY NO” TO JEFF SESSIONS AND THE CONTROLLED SUBSTANCES ACT By: Franklin R. Guenthner, Volume 101 Staff Member Attorney General Jeff Sessions is not a fan of marijuana. Before assuming his role at the Department of Justice,…
Keefe v. Adams
KEEFE V. ADAMS: OVERREGULATING OFF-CAMPUS SPEECH UNDER PROFESSIONAL CODES OF CONDUCT By: Maximilian Hall, Volume 101 Staff Member The Court of Appeals for the Eighth Circuit recently held that a student’s off-campus speech, which violated the American Nursing Association Code of Ethics, could be regulated…
Protecting Senior Citizens from Their Mail
Protecting Senior Citizens from Their Mail: The Growing Threat of Direct Mail Solicitation at Senior Living Communities By: Mike Sikora, Volume 101 Staff Member Many of us hear stories of scammers targeting the elderly: fake grandsons trapped in jail, fake nieces stranded at airports, and…
Much Ado About Nothing
MUCH ADO ABOUT NOTHING: ELIMINATING CHEVRON DEFERENCE WOULD LIKELY HAVE A MINIMAL IMPACT ON SUPREME COURT JURISPRUDENCE By: Jessica Sharpe, Volume 101 Staff Member Neil Gorsuch’s nomination to the Supreme Court was confirmed by the Senate in recent weeks.[1] Throughout his confirmation hearings, his views…
Educational Privileges
EDUCATIONAL PRIVILEGES: A PERPSECTIVE ON U.S. DEPARTMENT OF EDUCATION REGULATIONS BANNING PRE-DISPUTE, MANDATORY ARBITRATION IN UNIVERSITIES By: Kate Kelzenberg, Volume 101 Staff Member During the Senate confirmation hearing of Supreme Court nominee Neil Gorsuch, Sen. Al Franken (D-Minn.) questioned the nominee on his opinions about…
