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
READY FOR LANDING: AFTER CONCLUDING “PILOT PROGRAM,” MINNESOTA’S ENVIRONMENTAL QUALITY BOARD DELIBERATES LONG AWAITED ENVIRONMENTAL REVIEW CLIMATE CONSIDERATION REQUIREMENTS
By: Giuseppe Tumminello, Volume 107 Staff Member On October 19, 2022, the Minnesota Environmental Quality Board (EQB) hosted a public Environmental Review Implementation Subcommittee (ERIS) meeting. The ERIS reviewed the results from a Pilot Program it organized in order to incorporate climate change considerations on…
LEGAL LIMBO: THE STATE OF ABORTION CARE FOR MINORS IN MINNESOTA AFTER DOE v. STATE OF MINNESOTA
By: Mary Fleming, Volume 107 Staff Member Even before Dobbs v. Jackson Women’s Health Organization brought abortion to center stage at the U.S. Supreme Court, Minnesota abortion law was being litigated in state court.[1] In May of 2019, two advocacy organizations, the Lawyering Project and…
HOW COMPELLING DOES COMPELLING HAVE TO BE?: A MISSED OPPORTUNITY TO REFRAME A COMPELLING GOVERNMENTAL INTEREST IN AFFIRMATIVE ACTION IN THE STUDENTS FOR FAIR ADMISSIONS CASES
By: Chad Nowlan, Volume 107 Staff Member This fall the Supreme Court heard oral arguments in two cases brought by Students for Fair Admissions (SFFA), a self-described “nonprofit membership group of . . . students, parents, and others who believe that racial classifications and preferences…
THE ONUS OF TRANSPARENCY: STATE OF WASHINGTON v. META PLATFORMS, INC. ILLUSTRATES THE FIGHT OVER REASONABLE CAMPAIGN FINANCE DISCLOSURE LAW AND FIRST AMENDMENT PROTECTED SPEECH VIOLATIONS
By: Lindsay Maher, Volume 107 Staff Member Campaign finance disclosure laws are being questioned and limited in states across the country. In many states, legislatures have passed laws to prevent future requests for disclosure to non-profit organizations that donate to political candidates or parties.[1] In…
MIXED MESSAGING: PREVIEWING 303 CREATIVE AND ITS PLACE IN CURRENT FREE SPEECH JURISPRUDENCE
By: Samuel E. Ferguson, Volume 107 Staff Member This term, the Supreme Court of the United States will decide 303 Creative LLC v. Elenis.[1] The Court will decide whether a Colorado public accommodation law violates the Free Speech Clause of the First Amendment by compelling…
UN(PrEP)ARED: HOW BRAIDWOOD v. BECERRA COULD LEAVE PUBLIC HEALTH OFFICIALS SCRAMBLING
By: Tyler Blackmon, Volume 107 Staff Member On September 7, 2022, a federal district court granted summary judgment to an employer who refused to cover an anti-HIV, pre-exposure prophylaxis drug (PrEP) because doing so would make that employer “complicit in facilitating homosexual behavior.”[1] The judge,…
NO REASSURANCE FROM INSURANCE: INSURANCE COMPANIES ARE TRYING TO AVOID BIPA LITIGATION BY USING ROBUST EXCLUSION CLAUSES AND COURTS ARE UNIMPRESSED
By: Katherine Vu, Volume 107 Staff Member Insurance companies are the new plaintiffs taking center stage in recent litigation under the Illinois Biometric Information Privacy Act (BIPA).[1] Enacted in 2008, BIPA aims to protect individuals by regulating the collection and dissemination of their biometric data…
HARD LUXURY: MATERIAL ADVERSE EFFECT IN THE LVMH AND TIFFANY MERGER
By: Rachel Wynn, Business Law Clinic Student Director & Emily Buchholz, Executive Director of the Corporate Institute Since the COVID-19 pandemic, material adverse effect claims have increased in Delaware courts. A material adverse effect (“MAE”) is a change in circumstances that is reasonably expected to…
STEALING FROM YOUR STUDENTS: THE HIDDEN KEY IN THE HIGHER EDUCATION ACT TO HOLD LEADERS OF FOR-PROFIT COLLEGES PERSONALLY LIABLE FOR FRAUD
By: Kylee Evans, Volume 106 Staff Member Student debt in the United States has hit a historic high.[1] The estimated total student loan debt as of March 2022 is $1.749 trillion.[2] Of that, the federal government owns about $1.61 trillion.[3] Legal scholars have long compared…
MEANINGFUL BUT NOT PERFECT REVIEW: IMPLIED PRECLUSION OF FEDERAL JURISDICTION AND AXON ENTERPRISE, INC. V. FTC
By: Jason Gutierrez, Vol. 106 Staff Member I. BACKGROUND, DOCTRINE, AND AXON’S ARGUMENT May a party arguing that the structure of the Federal Trade Commission (FTC) violates the constitution bypass the FTC’s administrative review process and bring suit in federal court? Last summer, Axon Enterprise,…
