Articles, Essays, & Tributes
Diversity Messaging After Affirmative Action
By NANCY LEONG. Full Text. Appendix here. Many colleges and universities communicate publicly that they value racial diversity—a practice this Article will call diversity messaging. Yet growing hostility to race-consciousness by courts, legislators, and other public figures has made diversity messaging increasingly fraught. This Article examines empirically whether law schools changed their diversity messaging following…
Investor Justice
By NICOLE IANNARONE. Full Text. There is a systemic flaw in the investor protection landscape. Unrepresented investors face off against well-resourced repeat- player firms that almost always have lawyers. While consumers face similar challenges in civil courts, in forced securities arbitration, the decisionmaker may not have a law degree, is prohibited from conducting any outside…
Unpunishment Purposes
By MEREDITH ESSER. Full Text. Sentencing scholarship often begins by exploring the traditional purposes of punishment: deterrence, retribution, incapacitation, and rehabilitation. However, little scholarship exists addressing how these four punishment purposes apply in the post- sentencing or second-look contexts. Further, abstract theories of sentencing can often seem sterile and disconnected from the realities of how…
Debt, Work, and the State
By KATE ELENGOLD. Full Text. In every state and the District of Columbia, an individual who owes a debt to the state can lose their license to work. Without the ability to make a living, it is much harder to pay off debt. Although using occupational license restrictions as a debt collection tool appears nonsensical,…
Law for the Rich
By ALEX RASKOLNIKOV. Full Text. With top incomes and wealth reaching historic highs, scholars and politicians have proposed new taxes and novel legal rules aimed at reversing the emergence of the new Gilded Age. Yet while new taxes target the rich directly by imposing greater burdens only on those with incomes or wealth above multi-million-dollar…
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
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…
