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Headnote

Defining Common and Individual Issues in Class Actions: What a Reasonable Jury Could Do

By Aaron D. Van Oort and John L. Rockenbach | October 30, 2024

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 it is the one that most bedevils courts in practice.…

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Headnote

The Supreme Court’s Opinion in SEC v. Jarkesy Has the Potential To Be Extremely Destructive

By Richard J. Pierce, Jr. | October 30, 2024

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 of disputes prior to its 2024 opinion in SEC. v…

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Article

Substance over Symbolism: Do We Need Benefit Corporation Laws?

By Author Name | October 31, 2024

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 is not a legal imperative, as evidenced by the flexibility…

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Article

Diversity Messaging After Affirmative Action

By Nancy Leong | February 13, 2025

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…

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Article

Investor Justice

By Nicole Iannarone | February 13, 2025

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…

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Article

Unpunishment Purposes

By Meredith Esser | February 13, 2025

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…

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Article

Debt, Work, and the State

By Kate Elengold | February 13, 2025

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,…

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Article

Law for the Rich

By Alex Raskolnikov | February 13, 2025

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…

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Note

150 Years of Detox: How Inadequate Dietary Supplement Regulation Undermines Consumer Safety in the Weight Loss Industry

By Chloe Chambers | February 13, 2025

By CHLOE CHAMBERS. Full Text. Prior to the passage of the Pure Food and Drug Act of 1906, the American food and drug market was a proverbial “wild west,” fraught with charlatans, snake oil salesmen, and manufacturers cutting costs at the expense of consumers. The Pure Food and Drug Act, along with the Food, Drug,…

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Articles, Essays, & Tributes

Diversity Messaging After Affirmative Action

February 13, 2025

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

February 13, 2025

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

February 13, 2025

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

February 13, 2025

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

February 13, 2025

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”

November 30, 2024

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

November 30, 2024

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

November 30, 2024

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

October 30, 2024

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

October 30, 2024

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?

October 31, 2024

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”

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

COPPER-NICKEL MINING AND THE MINNESOTA DEPARTMENT OF NATURAL RESOURCES’ DUAL MANDATE: HOW TO ENSURE ENVIRONMENTAL CONSEQUENCES IN THE INDUSTRY CAN BE ALLEVIATED

April 1, 2022

By: Ben Gleekel, Vol. 106 Staff Member Northeast Minnesota may soon host an industrialized corridor of copper-nickel mining operations. The region is the home of the Duluth Complex—a geological formation containing an estimated 4.4 billion tons of copper, nickel, and other precious metals,[1] making it…

SCOTUS TAKES ON WOTUS: PREVIEWING SACKETT V. EPA AND ITS CONSEQUENCES FOR THE CLEAN WATER ACT

March 30, 2022

By: Sean Downey, Volume 106 Staff Member With its grant of certiorari in Sackett v. EPA, the Supreme Court will take its fourth try at resolving a question that has vexed courts, agencies, lawyers, and landowners: what are “Waters of the United States (WOTUS)?”[1] The…

A $9 BILLION SURPLUS, YET “KIDS CAN’T READ”: MINNESOTA TEACHER STRIKES MAY VIOLATE STUDENTS’ RIGHTS UNDER THE STATE CONSTITUTION AND THE LEGISLATURE HAS A DUTY TO FIX IT

March 24, 2022

By: Joshua Gutzmann, Volume 106 Staff Member After almost a full week of no school for over 31,000 students,[1] because teachers are on strike in Minneapolis,[2] the Minneapolis Federation of Teachers President declared that they were “ready to go for as long as it takes.”[3]…

REMEDYING DECADES OF DISPARITIES IN DRUG SENTENCING: HOW CONCEPCION v. UNITED STATES OPENS THE DOOR FOR BROADER RELIEF IN FIRST STEP ACT RESENTENCING PROCEEDINGS

March 23, 2022

By: Rhianna Torgerud, Volume 106 Staff Member From 1986 to 2010, one gram of crack cocaine was treated as equivalent to 100 grams of powder cocaine when setting federal statutory minimum and maximum sentences.[1] This 100-to-1 sentencing disparity was widely criticized as discriminatory against African…

THE UNITED STATES WANTED TO HAVE ITS CAKE, EAT IT, AND AVOID ITS CLEANUP COSTS, TOO

March 22, 2022

By: Olivia Carroll, Volume 106 Staff Member In 2017, the Territory of Guam brought suit against the United States under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), seeking to recover costs spent on the cleanup of a contaminated site that had…

WAR POWERS UNDER ATTACK

March 21, 2022

By: Jesse Noltimier, Volume 106 Staff Member On March 29, 2022, the Supreme Court will hear oral arguments in Torres v. Texas Department of Public Safety.[1] The Court will decide whether a veteran can sue the state of Texas, his former employer, for discrimination. Beyond…

THE SUPREME COURT DILUTES MINORITY VOTER RIGHTS: THE FATE OF THE VOTER RIGHTS ACT FOLLOWING MERRILL V. MILLIGAN

March 16, 2022

By: Justin Oakland, Volume 106 Staff Member Following the 2020 census, a Republican-majority Alabama state legislature voted to redraw congressional districts to functionally dilute the voting power of Black residents.[1] Despite Black voters making up 26.8 percent of Alabama’s population, the redrawn districts only grant…

RUSSIAN WARFARE: NEW JERSEY COURT HOLDS RUSSIAN-SPONSORED CYBERATTACK NOTPETYA IS NOT PART OF WAR EXCLUSION FOR ALL-RISK INSURANCE POLICY, AND ILLINOIS MIGHT SOON FOLLOW

March 8, 2022

By: Caleb Johnson, Volume 106 Staff Member On December 6th, 2021, a New Jersey Superior Court announced in Merck & Co., Inc. v. Ace American Insurance Company that insurance companies could not use a hostilities/war exclusion to deny coverage to biopharmaceutical company Merck’s claim after…

REMEDYING DISCRIMINATION IN AGRICULTURAL LENDING: ANALYZING THE LEGAL CHALLENGES FACING THE EMERGENCY RELIEF FOR FARMERS OF COLOR ACT

March 7, 2022

By: Jackie Cuellar, Volume 106 Staff Member To alleviate the impact of the COVID-19 pandemic on the United States’ economy, Congress passed the American Rescue Plan Act of 2021 (ARPA).[1] Section 1005 of the ARPA, also referred to as the Emergency Relief for Farmers of…

DON’T FALL ASLEEP AT THE WHEEL: DELAWARE BOARDS SHOULD BE ON THE LOOKOUT FOR ESG OVERSIGHT LIABILITY

March 3, 2022

By: Nick Penn, Volume 106 Staff Member  In 2019, the Supreme Court of Delaware put the boardrooms of Delaware corporations on notice with its denial of Blue Bell Creameries’ motion to dismiss a shareholder derivative suit for breach of the board’s duty of oversight.[1] The…