Articles, Essays, & Tributes
Bankruptcy as a National Security Risk
By JASON JIA-XI WU. Full Text. Defense contractors lie at the heart of the U.S. national security regime. Each year, over half of the federal defense budget is allocated to contracts outsourcing military operations, projects, and services to private companies. However, defense outsourcing carries a ticking time bomb: mounting private debt. Today, the defense industry…
The Innocence Trap
By CAITLIN GLASS & JULIAN GREEN. Full Text. What makes a conviction wrongful? Developments in DNA science have led to a wave of exonerations over the past thirty years, revealing sources of error in the criminal legal process. Innocence organizations proliferated to represent people whose convictions could be overturned by newly discovered evidence. This is…
Regulatory History and Judicial Review
By TODD PHILLIPS & ANTHONY MOFFA. Full Text. The Administrative Procedure Act (APA) requires federal agencies to simply “incorporate in the rules adopted a concise general statement of their basis and purpose” after they receive comments from the public, and the Supreme Court ruled in Overton Park that courts are to adjudicate whether rules are…
The Crisis in U.S. Cancer Care: Law, Markets, and Privatization
By DANIEL G. AARON. Full Text. Cancer is surging among youth and young adults in the United States, yet, instead of public regulation addressing its root causes, we have outsourced the management of cancer to the private sector. A suite of laws, embodying faith that corporations will cure cancer, has subsidized the cancer biomedical enterprise…
The Poly Problem in Zoning: Redefining “Family” for a Changing Society
By ARIC SHORT & TANYA PIERCE. Full Text. Single-family zoning has long dictated not only where people may live but also with whom. Although extensively critiqued for perpetuating racial and economic exclusion, these laws also privilege relationships defined by blood, marriage, or adoption and marginalize nontraditional families. This Article focuses on a particularly overlooked group:…
Notes
Waging the Battle for Society’s Soul: The Constitutionality of Juvenile Transfer Legislation in the Wake of Jones v. Mississippi
By LOGAN KNUTSON. Full Text. Trying juvenile defendants as adults is a cruel, yet enduring practice in U.S. criminal law. If convicted, these youthful offenders face brutal conditions in adult prison and a lifelong stigma. Although these devastating consequences of conviction are readily apparent, juvenile transfer is insidious even absent a prison sentence or criminal…
The Skidmore Compromise: Interpreting Skidmore as a Tiebreaker to Preserve Judicial Wisdom in the Era of Loper Bright
By MITCHELL ZAIC. Full Text. ‘Law must be stable, and yet it cannot stand still.’ Here is the great antinomy confronting us at every turn. Rest and motion, unrelieved and unchecked, are equally destructive. The law, like human kind, if life is to continue, must find some path of compromise. – Judge Cardozo In the…
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
FOOD FOR THOUGHT: THE EMERGENCE OF RIGHT-TO-FOOD LEGISLATION IN THE UNITED STATES
By: Randa Larsen, Volume 107 Staff Member On November 2, 2021, Maine voters did something no other state in the United States has done—they approved an amendment that sets out a constitutional right to food.[1] This Amendment did not come out of thin air. Before…
THE “MAJOR QUESTIONS” SHACKLES: PREDICTING THE OUTCOME OF DEPARTMENT OF EDUCATION v. BROWN AND A WARNING ON THE POTENTIAL CONSEQUENCES OF A CONSTRAINED ADMINISTRATIVE STATE
By: James Carlton, Volume 107 Staff Member On February 28th, the Supreme Court will hear arguments in two cases that will decide the constitutionality of President Biden’s student loan forgiveness program: Department of Education v. Brown and Biden v. Nebraska.[1] While the immediate ramifications of…
OBJECTIVELY REASONABLE FRAUD?: THE SUPREME COURT’S UPCOMING FCA DECISION WILL RESOLVE CIRCUIT SPLIT OVER SCIENTER ELEMENT
By: Carly Heying, Volume 107 Staff Member On January 13, 2023, after urging by the U.S. Solicitor General and Senator Chuck Grassley (R-Iowa),[1] the Supreme Court agreed to take up a pair of consolidated False Claims Act cases addressing “whether and when a defendant’s contemporaneous…
THOMAS ON TRIAL: HOW SUPREME COURT JUSTICE CLARENCE THOMAS HAS INFLUENCED THE CURRENT AFFIRMATIVE ACTION CASES BEFORE THE COURT
By: Dahlia Wilson, Volume 107 Staff Member In the 2022–23 term, the Supreme Court is faced with two seminal cases regarding universities’ uses of “affirmative action”—a.k.a. the consideration of race—in their admissions practices. Both Students for Fair Admissions v. University of North Carolina[1] and Students…
READING TO BECOME A DIFFERENT TYPE OF “PRACTICE-READY” LAWYER: WHAT NO MORE POLICE CAN TEACH LAW STUDENTS ABOUT THEIR ROLE IN THE MOVEMENT FOR PRISON-INDUSTRIAL-COMPLEX ABOLITION
By: Lucy Chin, Volume 107 Staff Member A small minority of the 1.3 million lawyers in the country engage in work that explicitly concerns community-based advocacy and movement lawyering.[1] And yet, our profession—like most in the past few years—has been unable to avoid confronting fundamental…
NOVEL REGULATIONS AND HISTORICAL ANALOGUES: A SAN JOSÉ ORDINANCE TESTS THE BOUNDARIES OF THE SECOND AMENDMENT
By: Toph Beach, Volume 107 Staff Member On June 23, 2022, the Supreme Court decided New York State Rifle & Pistol Association v. Bruen, striking down a New York firearm restriction and pioneering a new test for Second Amendment cases.[1] Under Bruen, gun regulations must…
COVERED BY CANNABIS?: MINNESOTA SUPREME COURT RULES THAT WORKERS’ COMPENSATION WILL NOT COVER MEDICAL MARIJUANA
By: Chelsea M. Trudgeon, Volume 107 Staff Member I. MINNESOTA SUPREME COURT RULINGS In October 2021, the Minnesota Supreme Court issued decisions in Musta v. Mendota Heights Dental Center[1] and Bierbach v. Digger’s Polaris[2] addressing reimbursement of medical marijuana under workers’ compensation claims.[3] Under the…
THE TRY GUYS TRY RESPONDING TO A RELATIONSHIP AT WORK: THE LEGAL IMPLICATIONS OF CONSENSUAL WORKPLACE RELATIONSHIPS
By: Mollie Clark Ahsan, Volume 107 Staff Member Over the past few months, famous YouTube creators The Try Guys have navigated a worldwide scandal surrounding one of the co-owners of their media company.[1] The scandal highlights the legal ambiguity that exists when workplace relationships take…
BACK FOR SECONDS: PREDICTING THE OUTCOME OF UNITED STATES v. TEXAS BASED ON BIDEN v. TEXAS
By: Maya Wells Hermerding, Volume 107 Staff Member In its second major immigration-related case of the term, the Supreme Court will weigh the executive branch’s authority to regulate immigration policy as conservative states contend that the Biden administration’s policies put them at a disadvantage.[1] In…
HOLLOW STATEMENT OR EMPTY PROMISE: OREGON’S “RIGHT TO HEALTHCARE” AMENDMENT IS NOT EQUIPPED TO ACHIEVE ITS GOALS, WHATEVER THEY ARE
By: Patrick Ebeling, Volume 107 Staff Member In the November 8, 2022, election, Oregon voters narrowly approved Senate Joint Resolution 12 (SJR 12), the Right to Healthcare Amendment.[1] SJR 12 amends the Oregon state constitution to read: (1) It is the obligation of the state…
