Skip to content
Headnote

Teaching “Is This Case Rightly Decided?”

By Steven Arrigg Koh | April 15, 2024

By Steven Arrigg Koh. Full Text. “Is this case rightly decided?” From the first week of law school, every law student must grapple with this classroom question. This Essay argues that this vital question is problematically under-specified, creating imprecision in thinking about law. This Essay thus advocates that law professors should present students with a…

Read More
Headnote

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

By Jennifer L. Behrens and Joseph Blocher | 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 and guns be taken seriously and vetted appropriately. In this…

Read More
Headnote

Erasing Racial Harms in CFPB v. Community Financial Services Association

By Callan Showers | May 29, 2024

By Callan Showers. Full Text. Professor Allan Freeman’s “perpetrator perspective” explains the normative American legal framework that casts racism as an intentional deviation from an otherwise neutral system. Freeman describes the perpetrator perspective as a negative, remedial dimension casting discrimination as an isolated action by a perpetrator onto a victim. By conflating the concept of…

Read More
Headnote

Should Courts Make It Personal? Virtue-Dependent Doctrine and the Law of Executive Power

By Michael Coenen | May 29, 2024

By Michael Coenen. Full Text. With The Virtuous Executive, Professor Alan Rozenshtein has given us an impressive and wide-ranging analysis of the relevance of Presidential character to the law of executive power. The article’s central claim is straightforward: The Constitution reflects a “commitment to proper presidential character,” and scholars of and participants within the U.S.…

Read More
Headnote

Private-Law Attorneys General

By Molly Shaffer Van Houweling | May 29, 2024

By Molly Shaffer Van Houweling. Full Text. The Constitution empowers Congress to “promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The founding-era Congress quickly exercised this power by enacting copyright and patent laws that track the constitutional…

Read More
Headnote

Twins at Bat(son), Strikes Are Out: Minnesota’s Opportunity to Restore Batson v. Kentucky by Eliminating Peremptory Strikes

By Samuel Buisman | May 29, 2024

By Samuel Buisman. Full Text. While the Supreme Court’s decision in Batson v. Kentucky is widely hailed by scholars and jurists alike as a triumph of American egalitarianism, time and trial have unmasked its protections as a paper tiger. Despite its purported protections against racially and sexually discriminatory peremptory juror strikes, the Court’s abysmal standard…

Read More
Headnote

American Fiction: Overturning the Doctrine of Immigration Entry Fiction as Established in Shaughnessy v. Mezei

By Dahlia Wilson | May 29, 2024

By Dahlia Wilson. Full Text. In 1886, the Supreme Court decided a case called Yick Wo v. Hopkins, which held that any person physically within the United States’ territory would enjoy the protections of the Fourteenth Amendment, regardless of their immigration or citizenship status. In a racist and nationalistic reaction, this decision gave rise to…

Read More
Headnote

Bounded Entities and (Some of) Their Discontents

By Saurabh Vishnubhakat | May 29, 2024

By Saurabh Vishnubhakat. Full Text.  In his new article An Organizational Theory of International Technology Transfer, Professor Peter Lee offers two richly detailed accounts at once. One is a novel theoretical framework of “bounded entities” that generalizes both from the classic theory of the firm and, of more recent vintage, from the knowledge-based theory of…

Read More
Article

Aiming for Answers: Balancing Rights, Safety, and Justice in a Post-Bruen America

By Chad Nowlan | June 7, 2024

By CHAD NOWLAN. Full Text. A foreword to the symposium issue of Minnesota Law Review volume 108.  

Read More
Article

Firearms Carceralism

By Jacob D. Charles | June 7, 2024

By JACOB D. CHARLES. Full Text. Gun violence is a pressing national concern. And it has been for decades. Throughout nearly all that time, the primary tool lawmakers have deployed to stanch the violence has been the machinery of the criminal law. Increased policing, intrusive surveillance, vigorous prosecution, and punitive penalties are showered on gun…

Read More

Articles, Essays, & Tributes

Firearms Carceralism

June 7, 2024

By JACOB D. CHARLES. Full Text. Gun violence is a pressing national concern. And it has been for decades. Throughout nearly all that time, the primary tool lawmakers have deployed to stanch the violence has been the machinery of the criminal law. Increased policing, intrusive surveillance, vigorous prosecution, and punitive penalties are showered on gun…

Firearms and the Homeowner: Defending the Castle, the Curtilage, and Beyond

June 7, 2024

By CYNTHIA LEE. Full Text. In the spring of 2023, a series of back-to-back shootings shook the nation. A Black teenager in Missouri trying to pick up his two younger siblings went to the wrong door and rang the doorbell. The homeowner came to the door with a gun and, without saying a word, fired…

Age Restrictions and the Right to Keep and Bear Arms, 1791–1868

June 7, 2024

By MEGAN WALSH AND SAUL CORNELL. Full Text. The disproportional misuse of firearms by eighteen-to-twenty-year-olds has long been a problem in America. The concerns are not novel. Nor are legislative responses to this problem a recent development in American law. These limitations are deeply rooted in American legal history. While minimum age gun laws routinely…

Scientific Context, Suicide Prevention, and the Second Amendment After Bruen

June 7, 2024

By ERIC RUBEN. Full Text.  The Supreme Court declared in New York State Rifle & Pistol Ass’n v. Bruen that modern gun laws must be “consistent with this Nation’s historical tradition of firearm regulation” to survive Second Amendment challenges. Scholarship has shown how this test of historical analogy presents difficulties because of how technological, legal,…

Trouble’s Bruen: The Lower Courts Respond

June 7, 2024

By BRANNON P. DENNING AND GLENN H. REYNOLDS. Full Text. New York State Rifle & Pistol Ass’n v. Bruen revolutionized the understanding of how Second Amendment cases are to be adjudicated. Rejecting the tiered-scrutiny analysis around which the lower courts had coalesced since the 2008 Heller decision, the Court instructed courts to look to history…

The Second Amendment’s Racial Justice Complexities

June 7, 2024

By DANIEL S. HARAWA. Full Text. The relationship between the Second Amendment and racial justice is complicated. That’s because the relationship between pe- nal administration and racial justice is complicated. The briefing in New York State Rifle & Pistol Association v. Bruen perfectly proves this point. A group of public defenders favored striking down New…

Notes

Answering the Call: How Reconfiguration of the Nation’s Mental Health Crisis Call Line Can Facilitate Reimagination of Community Well-Being and Public Safety

May 22, 2024

By LUCY CHIN. Full Text. When the 988 Suicide and Crisis Lifeline went live in Summer 2022, communities across the country began to confront the question of how this new, expanded behavioral health resource would integrate into the country’s preexisting, emergency response systems. The program seemed to promise the solution to an increasingly visible problem—as…

States’ Obligation to Provide for Trans Youth: How Medicaid Requires (Most) States to Provide Access to Puberty Blockers

May 22, 2024

By GRACE WORCESTER. Full Text. Over the last few years, many states have endeavored to strip minor access to gender-affirming healthcare, and these efforts have seen considerable success. By the end of 2023, twenty-two states had enacted legislation that limits youth access to gender- affirming healthcare. In line with these efforts, many states have created…

Headnotes

Thirty-Five Years of Inaction: The Unfulfilled Promise of the Medicaid Equal Access Provision

March 2, 2024

By Delaram Takyar. Full Text. In 1989, Congress amended the Social Security Act to ensure that Medicaid recipients would have the same access to medical providers as people covered by private insurance and Medicare. This was meant to remedy the wide disparities in access to…

Teaching “Is This Case Rightly Decided?”

April 15, 2024

By Steven Arrigg Koh. Full Text. “Is this case rightly decided?” From the first week of law school, every law student must grapple with this classroom question. This Essay argues that this vital question is problematically under-specified, creating imprecision in thinking about law. This Essay…

Erasing Racial Harms in CFPB v. Community Financial Services Association

May 29, 2024

By Callan Showers. Full Text. Professor Allan Freeman’s “perpetrator perspective” explains the normative American legal framework that casts racism as an intentional deviation from an otherwise neutral system. Freeman describes the perpetrator perspective as a negative, remedial dimension casting discrimination as an isolated action by…

Should Courts Make It Personal? Virtue-Dependent Doctrine and the Law of Executive Power

May 29, 2024

By Michael Coenen. Full Text. With The Virtuous Executive, Professor Alan Rozenshtein has given us an impressive and wide-ranging analysis of the relevance of Presidential character to the law of executive power. The article’s central claim is straightforward: The Constitution reflects a “commitment to proper…

Private-Law Attorneys General

May 29, 2024

By Molly Shaffer Van Houweling. Full Text. The Constitution empowers Congress to “promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The founding-era Congress quickly exercised this power…

Twins at Bat(son), Strikes Are Out: Minnesota’s Opportunity to Restore Batson v. Kentucky by Eliminating Peremptory Strikes

May 29, 2024

By Samuel Buisman. Full Text. While the Supreme Court’s decision in Batson v. Kentucky is widely hailed by scholars and jurists alike as a triumph of American egalitarianism, time and trial have unmasked its protections as a paper tiger. Despite its purported protections against racially…

American Fiction: Overturning the Doctrine of Immigration Entry Fiction as Established in Shaughnessy v. Mezei

May 29, 2024

By Dahlia Wilson. Full Text. In 1886, the Supreme Court decided a case called Yick Wo v. Hopkins, which held that any person physically within the United States’ territory would enjoy the protections of the Fourteenth Amendment, regardless of their immigration or citizenship status. In…

Bounded Entities and (Some of) Their Discontents

May 29, 2024

By Saurabh Vishnubhakat. Full Text.  In his new article An Organizational Theory of International Technology Transfer, Professor Peter Lee offers two richly detailed accounts at once. One is a novel theoretical framework of “bounded entities” that generalizes both from the classic theory of the firm…

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

See You in Court

March 8, 2017

SEE YOU IN COURT: ANALYZING JUDGE GORSUCH’S VIEWS ON THE SEPARATION OF POWERS By: Nathan Rice, Volume 101 Staff Member Judge Neil M. Gorsuch has been cast into a political warzone since his nomination on January 31 to fill the late Antonin Scalia’s now long-vacant…

Comparing and Contrasting the Legal Challenges to President Trump’s Travel Ban

March 1, 2017

COMPARING AND CONTRASTING THE LEGAL CHALLENGES TO PRESIDENT TRUMP’S TRAVEL BAN By: Richard Canada, Volume 101 Staff Member In the whirlwind first month of Donald Trump’s tenure as President, perhaps no issue has been as controversial or received as much attention as the Executive Order…

Legal Analysis of Trump Executive Order on Refugees

February 27, 2017

LEGAL ANALYSIS OF TRUMP EXECUTIVE ORDER ON REFUGEES By: Stephen Meili, Clinical Professor in Law, University of Minnesota Law School† On January 27, 2017, President Trump issued an Executive Order (“Order”) curtailing entry to the U.S. by immigrants, non-immigrants and refugees in three significant ways:…

Defying Conservationist Ethics

February 24, 2017

DEFYING CONSERVATIONIST ETHICS: A LOOK AT PRESIDENT TRUMP’S ENERGY PLAN By Karrah Johnston, Volume 101 Staff Member Over the course of his presidential campaign, President Donald Trump routinely championed former President Theodore Roosevelt’s conservation legacy. Trump continually asserted that he would follow in the “great…

Microsoft Corp. v. United States

February 23, 2017

MICROSOFT CORP. V. UNITED STATES: SHOULD CONGRESS REVISE THE STORED COMMUNICATIONS ACT? By: Adam Frudden, Volume 101 Staff Member On July 14, 2016, the Court of Appeals for the Second Circuit issued its ruling in the case of Microsoft Corp. v. United States.[1] The long-awaited…

The Presidential Clemency Power and Chelsea Manning

February 14, 2017

THE PRESIDENTIAL CLEMENCY POWER AND CHELSEA MANNING: AN ORIGINALIST PERSPECTIVE By: Caitlin Opperman, Volume 101 Staff Member On his last day in office, President Obama commuted the sentences of 330 people serving time for drug offenses, bringing the total number of commutations issued throughout his…

Unprecedented

February 1, 2017

UNPRECEDENTED: PRESIDENT TRUMP’S DIVIDED LOYALTIES By: Emily Atmore, Volume 101 Staff Member Donald Trump’s prominence as an international businessman has raised widespread concerns about conflicts of interest in his newest venture: as President of the United States.[1] Legal experts have relied on a little known…

Reading the Tea Leaves of Pretextual Protectionism

January 26, 2017

READING THE TEA LEAVES OF PRETEXTUAL PROTECTIONISM: THE FUTURE OF THE U.S.-CUBA RELATIONSHIP By: Charles Barrera Moore, Volume 101 Lead Online Editor In the wake of the death of Cuban dictator Fidel Castro, both President Obama and President Trump acknowledged that the United States is…

When Food Turns Deadly

January 25, 2017

WHEN FOOD TURNS DEADLY: CRIMINAL LIABILITY FOR RESTAURATEURS THAT DISREGARD PATRONS FOOD ALLERGIES By: Taylor Gess, Volume 101 Staff Member On January 28, 2016, the mother of a five-year-old girl used Panera’s online ordering system to purchase a grilled cheese sandwich for her peanut-allergic daughter.[1]…

Elon Take the Wheel

January 24, 2017

ELON TAKE THE WHEEL: MAJOR CHALLENGES THAT AUTONOMOUS CARS WILL PRESENT TO THE LEGAL SYSTEM By: Stephen Maier, Volume 101 Staff Member In May 2016, 40-year-old Joshua Brown was driving a Tesla Model S in “Autopilot mode” when a semi turned in front of him.[1]…