Articles, Essays, & Tributes
If Lived Experience Could Speak: A Method for Repairing Epistemic Violence in Law and the Legal Academy
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…
Informed Bystanders’ Duty to Warn
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
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
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
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”
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
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
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
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
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?
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”
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
HABITABILITY DEFENSE ON THE FRITZ: RENT POSTING REQUIREMENTS AND CHALLENGES IN MINNESOTA
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…
CLARITY AT A COST: HOW NEW REGULATIONS MAY PUT WELL-INTENTIONED GUN OWNERS AT RISK OF CIVIL AND CRIMINAL CHARGES
By: Nick Grossardt, Volume 107 Staff Member At the end of January 2023, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE) promulgated a final rule outlining a series of factoring criteria for regulating firearms with affixed “stabilizing braces.”[1] Various models of these braces had…
KEEP ROLLING: AFTER PROVIDING AUTOMATIC EXPUNGEMENT FOR CERTAIN MARIJUANA OFFENSES MINNESOTA SHOULD ENACT AUTOMATIC EXPUNGEMENT FOR OTHER CRIMINAL RECORDS
By: Abby Ward, Volume 107 Staff Member The racially discriminatory impact from the War on Drugs is clear,[1] and while marijuana legalization is one step in addressing the inequities of America’s criminal justice system, the work does not end there. States should also enact broader…
CALIBRATING THE SCOPE OF DISCLOSURE: PREVIEWING THE SUPREME COURT’S OPPORTUNITY TO CLARIFY PATENT LAW’S ENABLEMENT STANDARD
By: Maxwell H. Terry, Volume 107 Staff Member While the technical subject matter of a patent can grow inordinately complex, the predominant theory underlying patent law is relatively straightforward. In exchange for the right to exclude others from making, using, or selling the invention claimed…
THE MOST IMPORTANT DECISION NO ONE IS TALKING ABOUT: WHAT CUMMINGS MEANS FOR THE FUTURE OF CIVIL RIGHTS
By: Amy Cohen, Volume 107 Staff Member In what seems like a never-ending string of catastrophic rulings implicating our nation’s future and individual rights,[1] about ten months ago the Supreme Court laid down a major decision altering the availability of remedies for civil rights claimants…
LIFE-OR-DEATH LEGALESE: THE EXECUTION OF MATTHEW REEVES AND THE DIRE CONSEQUENCES OF POORLY TARGETED LEGAL DRAFTING
By: Earl Lin, Volume 107 Staff Member It is a well-known phenomenon that lawyers often communicate in their own “peculiar language . . . characterized by antique jargon, pomposity, affected displays of precision, ponderous abstractions, and hocus-pocus incantations.”[1] Indeed, lawyers are so notorious for their…
CONTRACTUAL CONUNDRUM: HOW HEALTH AND HOSPITAL CORPORATION V. TALEVSKI HAS THE POTENTIAL TO GUT FEDERAL SAFETY NET LEGISLATION
By: Grace Worcester, Volume 107 Staff Member The Supreme Court recently heard oral arguments in Health and Hospital Corporation of Marion County v. Talevski,[1] a case with the potential to strip over eighty million Americans[2] of the ability to seek recourse in the federal courts…
NOT FLYING SOLO: HOW SOUTHWEST’S MASSIVE FLIGHT CANCELLATIONS LED TO SEVERAL CLASS ACTION LAWSUITS
By: Kyra Honkanen, Volume 107 Staff Member I. BACKGROUND Making headlines across the country, Southwest Airlines, the largest domestic airline in the U.S.,[1] canceled over 15,000 of its flights leaving more than one million people[2] stranded or left to find alternative transportation during the peak…
THE SUPREME COURT ‘DIGS’ IN RE GRAND JURY: ITS DECISION TO DISMISS THE CASE AND LEAVE ATTORNEY-CLIENT PRIVILEGE IN THE THREE-CIRCUIT BALANCE
By: E. Isabel Park, Volume 107 Staff Member After the Supreme Court heard oral arguments in In re Grand Jury[1] on January 9, 2023, all that remained was for the Court to decide the case.[2] Instead, two weeks later, the Court dismissed the case as…
A RACE-SYMPATHETIC PATH FORWARD: FOURTH AMENDMENT SEIZURE LAW AND THE CIRCUIT SPLIT ON THE RELEVANCE OF RACE
By: Marina Berardino, Volume 107 Staff Member Despite it being well known that an individual’s race impacts his or her perceptions of and experiences with the police,[1] U.S. Supreme Court jurisprudence remains unclear on the role of race in Fourth Amendment seizure inquiries. Fourth Amendment…
