Articles, Essays, & Tributes
Aiming for Answers: Balancing Rights, Safety, and Justice in a Post-Bruen America
By CHAD NOWLAN. Full Text. A foreword to the symposium issue of Minnesota Law Review volume 108.
Firearms Carceralism
By JACOB D. CHARLES. Full Text. Gun violence is a pressing national concern. And it has been for decades. Throughout nearly all that time, the primary tool lawmakers have deployed to stanch the violence has been the machinery of the criminal law. Increased policing, intrusive surveillance, vigorous prosecution, and punitive penalties are showered on gun…
Firearms and the Homeowner: Defending the Castle, the Curtilage, and Beyond
By CYNTHIA LEE. Full Text. In the spring of 2023, a series of back-to-back shootings shook the nation. A Black teenager in Missouri trying to pick up his two younger siblings went to the wrong door and rang the doorbell. The homeowner came to the door with a gun and, without saying a word, fired…
Age Restrictions and the Right to Keep and Bear Arms, 1791–1868
By MEGAN WALSH AND SAUL CORNELL. Full Text. The disproportional misuse of firearms by eighteen-to-twenty-year-olds has long been a problem in America. The concerns are not novel. Nor are legislative responses to this problem a recent development in American law. These limitations are deeply rooted in American legal history. While minimum age gun laws routinely…
Scientific Context, Suicide Prevention, and the Second Amendment After Bruen
By ERIC RUBEN. Full Text. The Supreme Court declared in New York State Rifle & Pistol Ass’n v. Bruen that modern gun laws must be “consistent with this Nation’s historical tradition of firearm regulation” to survive Second Amendment challenges. Scholarship has shown how this test of historical analogy presents difficulties because of how technological, legal,…
Trouble’s Bruen: The Lower Courts Respond
By BRANNON P. DENNING AND GLENN H. REYNOLDS. Full Text. New York State Rifle & Pistol Ass’n v. Bruen revolutionized the understanding of how Second Amendment cases are to be adjudicated. Rejecting the tiered-scrutiny analysis around which the lower courts had coalesced since the 2008 Heller decision, the Court instructed courts to look to history…
The Second Amendment’s Racial Justice Complexities
By DANIEL S. HARAWA. Full Text. The relationship between the Second Amendment and racial justice is complicated. That’s because the relationship between pe- nal administration and racial justice is complicated. The briefing in New York State Rifle & Pistol Association v. Bruen perfectly proves this point. A group of public defenders favored striking down New…
Notes
Answering the Call: How Reconfiguration of the Nation’s Mental Health Crisis Call Line Can Facilitate Reimagination of Community Well-Being and Public Safety
By LUCY CHIN. Full Text. When the 988 Suicide and Crisis Lifeline went live in Summer 2022, communities across the country began to confront the question of how this new, expanded behavioral health resource would integrate into the country’s preexisting, emergency response systems. The program seemed to promise the solution to an increasingly visible problem—as…
The Mississippi River Basin Compact: A New Governance Structure to Save the Mississippi River
By JOHN STACK. Full Text. The Mississippi River is one of the most significant and yet one of the most imperiled water bodies in the United States. It faces a myriad of problems, from rampant pollution, widespread flooding, wildlife habitat loss, and considerable droughts. Indeed, this is a critical time for the Mississippi River. Fall…
States’ Obligation to Provide for Trans Youth: How Medicaid Requires (Most) States to Provide Access to Puberty Blockers
By GRACE WORCESTER. Full Text. Over the last few years, many states have endeavored to strip minor access to gender-affirming healthcare, and these efforts have seen considerable success. By the end of 2023, twenty-two states had enacted legislation that limits youth access to gender- affirming healthcare. In line with these efforts, many states have created…
Headnotes
Teaching “Is This Case Rightly Decided?”
By Steven Arrigg Koh. Full Text. “Is this case rightly decided?” From the first week of law school, every law student must grapple with this classroom question. This Essay argues that this vital question is problematically under-specified, creating imprecision in thinking about law. This Essay…
Erasing Racial Harms in CFPB v. Community Financial Services Association
By Callan Showers. Full Text. Professor Allan Freeman’s “perpetrator perspective” explains the normative American legal framework that casts racism as an intentional deviation from an otherwise neutral system. Freeman describes the perpetrator perspective as a negative, remedial dimension casting discrimination as an isolated action by…
Should Courts Make It Personal? Virtue-Dependent Doctrine and the Law of Executive Power
By Michael Coenen. Full Text. With The Virtuous Executive, Professor Alan Rozenshtein has given us an impressive and wide-ranging analysis of the relevance of Presidential character to the law of executive power. The article’s central claim is straightforward: The Constitution reflects a “commitment to proper…
Private-Law Attorneys General
By Molly Shaffer Van Houweling. Full Text. The Constitution empowers Congress to “promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The founding-era Congress quickly exercised this power…
Twins at Bat(son), Strikes Are Out: Minnesota’s Opportunity to Restore Batson v. Kentucky by Eliminating Peremptory Strikes
By Samuel Buisman. Full Text. While the Supreme Court’s decision in Batson v. Kentucky is widely hailed by scholars and jurists alike as a triumph of American egalitarianism, time and trial have unmasked its protections as a paper tiger. Despite its purported protections against racially…
American Fiction: Overturning the Doctrine of Immigration Entry Fiction as Established in Shaughnessy v. Mezei
By Dahlia Wilson. Full Text. In 1886, the Supreme Court decided a case called Yick Wo v. Hopkins, which held that any person physically within the United States’ territory would enjoy the protections of the Fourteenth Amendment, regardless of their immigration or citizenship status. In…
Bounded Entities and (Some of) Their Discontents
By Saurabh Vishnubhakat. Full Text. In his new article An Organizational Theory of International Technology Transfer, Professor Peter Lee offers two richly detailed accounts at once. One is a novel theoretical framework of “bounded entities” that generalizes both from the classic theory of the firm…
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
A HARD PILL TO SWALLOW: PURDUE PHARMA AND THE FUTURE OF THIRD-PARTY RELEASES IN BANKRUPTCY COURT
By: Marine Loison, Volume 106 Staff Member I. INTRODUCTION The Sackler name has been synonymous with the opioid crisis in the United States. Now, it has also become a household name in Bankruptcy Court.[1] On December 16th, 2021, Judge McMahon answered the “great unsettled question” of…
EXEMPTING THE FAMILY BIBLE: WITH LIBERTY AND JUSTICE FOR ALL (VALUES AND RELIGIOUS TEXTS)?
By: Kaylyn Stanek, Volume 106 Staff Member A primary justification for the U.S. consumer bankruptcy system is giving debtors a fresh start.[1] Although one might assume an individual must exchange all of their assets in exchange for moving forward, this is not true. The Bankruptcy…
A PUBLIC HEALTH EMERGENCY SHOULD NOT BE ABUSED: HUISHA-HUISHA v. ALEJANDRO MAYORKAS SHOWS THE ILLEGALITY OF TITLE 42 POLICY
By: Xiaoyuan Zhou, Volume 106 Staff Member On January 19, 2022, the Court of Appeals for the D.C. Circuit heard oral argument in Nancy Huisha-Huisha v. Alejandro Mayorkas.[1] The case is about whether the public health laws under 42 U.S.C. § 265, often referred to…
A KNIGHT’S REVOLT AGAINST THE CASTLE: ANSWERING THE BIPA CLAIM ACCRUAL QUESTION
By: Zach Robole, Volume 106 Staff Member The inability of our legislatures to keep up with the boom of Internet technology has forced a conversation about privacy to the forefront of American discourse.[1] Unfortunately, even when state or federal legislatures do attempt to regulate a…
OMICRON V. OSHA: THE NEED FOR PERMANENT MEASURES TO HELP EMPLOYERS AND EMPLOYEES MANAGE THE PANDEMIC SAFELY
By: Ayesha Mitha, Volume 106 Staff Member On January 13, 2022, the United States Supreme Court dealt a blow to the Occupational Safety and Health Administration’s (OSHA’s) Emergency Temporary Standard (ETS) for large employers. The decision put the ETS on hold indefinitely.[1] Among other things,…
CLIMATE V. THE COURT: HOW WEST VIRGINIA V. ENVIRONMENTAL PROTECTION AGENCY WILL IMPACT THE NEXT GENERATIONS
By: Helen Winters, Volume 106 Staff Member This Supreme Court term has so many high-profile cases, ranging from abortion to gun rights to vaccines, that West Virginia v. Environmental Protection Agency has received little attention.[1] The number of landmark cases this term could make it…
NO WORKING FORUMS: HOW THE SUPREME COURT SHOULD RULE IN VIKING RIVER CRUISES, INC. v. MORIANA TO PROTECT EMPLOYEE RIGHTS
By: Ben Parker, Volume 106 Staff Member Employers and employees have had a tumultuous relationship over the course of recent American history.[1] One change was the rise in arbitration after the passage of the Federal Arbitration Act (FAA) in 1926. The FAA permits employees and…
IT’S THE ONES YOU LEAST EXPECT: COLORADO AND CALIFORNIA LAG BEHIND IN PROTECTING EMPLOYEES’ OFF-DUTY MEDICAL MARIJUANA USE
By: Andrew Eggers, Volume 106 Staff Member In 2021, both New York[1] and New Jersey[2] joined the growing number of states which offer employment protections for workers engaging in legal, off-duty medical marijuana consumption. Conspicuously, two pioneering states of legal marijuana use—Colorado and California—remain absent…
BAD INFLUENCES: WEIGHING SEPARATION OF POWERS PRINCIPLES AGAINST CALLS FOR TRANSPARENCY FOLLOWING “LAPSES” IN JUDICIAL ETHICS
By: Bridget Hoffmann, Vol. 106 Staff Member In his 2021 Year-End Report on the Federal Judiciary, Chief Justice John Roberts emphasized the importance of maintaining judicial independence[1] in response to public criticism and calls to impose “ethics and transparency measures” on the federal courts.[2] The…
BIDEN’S EMERGENCY RULE RAISES FUNDAMENTAL POLICY ISSUES REGARDING THE ADMINISTRATIVE STATE AND ITS EXPANSIVE POLICYMAKING ROLE
By: Mark Kaske, Volume 106 Staff Member “Stop the spread” has been the rally cry across the world since Covid-19 originated in Wuhan, China in December 2019.[1] Just how to achieve this goal, however, has been a controversial and polarizing debate. In the past two…
Thirty-Five Years of Inaction: The Unfulfilled Promise of the Medicaid Equal Access Provision
By Delaram Takyar. Full Text. In 1989, Congress amended the Social Security Act to ensure that Medicaid recipients would have the same access to medical providers as people covered by private insurance and Medicare. This was meant to remedy the wide disparities in access to…