Articles, Essays, & Tributes
Major-Questions Lenity
By JOEL S. JOHNSON. Full Text. Both the historic rule of lenity and the new major questions doctrine rest on a fundamental commitment to the separation of powers for important policy questions. In light of that shared justification, the logic of the major questions doctrine in the administrative-law context has much to offer lenity in…
The Economic Structure of Trade Secret Law
By TUN-JEN CHIANG. Full Text. The standard economic account of trade secret law focuses on providing incentives for creating new inventions. The incentive-to-invent theory, however, provides little explanation for why the key doctrinal features of trade secret law are structured the way that they are. For example, providing ex ante incentives to invent does not…
Insurers as Contract Influencers
By DAVID A. HOFFMAN & RICK SWEDLOFF. Full Text. Contract boilerplate degrading consumers’ litigation options is omnipresent, but a little mysterious. And that’s not just because no one reads it. We know that terms mandating arbitration, exculpating liability, requiring individualized litigation, and shifting risk have proliferated in the last generation. But consumer contracts’ production and…
Notes
Exempt but Not Immune: Why the Section 501(c)(3) Tax Exemption Amounts to Federal Financial Assistance and Demands that Private Schools Comply with Title IX
By ELLEN BART. Full Text. Title IX of the Education Amendments Act of 1972 (Title IX) prohibits discrimination on the basis of sex in education programs and activities that receive federal financial assistance and ensures that federal funds are not used to support discriminatory practices. Independent, non-public, educational institutions try to escape compliance with Title…
Pressing Charges: Criminal Fees and the Excessive Fines Clause
By ANNEMARIE FOY. Full Text. Millions of people owe money to the government as a consequence of a criminal charge. But while some of that debt is tied to fines or restitution, much of it is levied as fees, or payments owed to the government for the administration of a defendant’s criminal proceedings. Criminal fees…
Immigration, Federalism, and the Invasion Clauses: Who Has a Seat at the Table in Disputes Over the State Power to Repel “Immigrant Invaders”
By MEGAN NIEMITALO. Full Text. In Arizona v. United States, the Supreme Court famously invalidated an Arizona statute that criminalized immigration violations and empowered state officials to enforce immigration law. Arizona seemed to settle the issue of whether states can regulate immigration for the following decade. In the last year, however, questions around the division…
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
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…
MINNESOTA DNR’S SEPT. 16, 2021 LINE 3 ENFORCEMENT ACTION DEMONSTRATES HOW MUCH GROUNDWATER PERMITTING “SUCKS”
By: Sonja Smerud, Volume 106 Staff Member Enbridge Energy’s Line 3 Pipeline, a replacement project for the delivery of crude oil from Canada to a processing facility in Superior, Wisconsin, was recently completed despite extensive opposition.[1] In September 2021 shortly before completion, the Minnesota Department…
#FREEBRITNEY: BRINGING ATTENTION TO A “TOXIC” SYSTEM OF CONSERVATORSHIP
By: Zack Hennen, Volume 106 Staff Member After months of legal deliberation, family infighting, and a full-blown pop culture movement, Britney Spears was released from her “Toxic”[1] thirteen-year conservatorship earlier this month.[2] Britney was placed under conservatorship in 2008 after a lengthy record of controversy…
TAXING BILLIONAIRES AND THE CONUNDRUM OF CONSTITUTIONAL INCOME
By: Sadie Betting, Volume 106 Staff Member In March 2020, the United States had 614 billionaires.[1] By October of this year, it had 745.[2] Since the beginning of the COVID-19 pandemic, the ultra-wealthy have grown their fortunes by $2.1 trillion,[3] or roughly half of what…
ROE V. A TECHNICALITY: HOW PROCEDURAL DECISIONS WILL BRING ABOUT THE END TO CONSTITUTIONALLY PROTECTED ABORTION RIGHTS
By: Leah Reiss, Volume 106 Staff Member For forty-eight years now, the Supreme Court has recognized that the Constitution protects “a woman’s[1] right to terminate her pregnancy before viability.”[2] Though subsequent decisions have narrowed that right, it still exists to this day.[3] Most Americans believe…
ROE AND CASEY UNDER ATTACK: WILL THE SUPREME COURT OVERTURN LANDMARK ABORTION PRECEDENT IN DOBBS V. JACKSON WOMEN’S HEALTH ORGANIZATION?
By: Theresa Green, Volume 106 Staff Member On December 1, 2021, the Supreme Court will hear oral arguments for Dobbs v. Jackson Women’s Health Organization, the first major abortion-related case since Justices Brett Kavanaugh and Amy Coney Barrett joined the Court.[1] The case involves a…
CATEGORICALLY INSUFFICIENT: THE U.S. SUPREME COURT MUST FIND ATTEMPTED HOBBS ACT ROBBERY IS NOT A “CRIME OF VIOLENCE” UNDER 18 U.S.C. § 924(c)(3)(A).
By: Michael Van Ryn, Volume 106 Staff Member In United States v. Taylor, the U.S. Supreme Court is presented with the question of whether an attempted robbery in violation of the Hobbs Act qualifies as a “crime of violence” under 18 U.S.C. § 924(c)(3)(A).[1] The…
LOCKED, LOADED, AND CONCEALED—THE SUPREME COURT’S FIRST GUN RIGHTS CASE IN A DECADE
By: Michael Kinane, Volume 106 Staff Member INTRODUCTION On November 3, 2021, the Supreme Court heard oral argument in New York State Rifle & Pistol Association, Inc. v. Bruen.[1] New York currently requires that applicants for conceal and carry firearm licenses show “proper cause” for…
THE CANINE MAGISTRATE: THE FOURTH AMENDMENT IMPLICATIONS OF WEAK ALERTS TO NARCOTICS IN VEHICLE SEARCHES
By: Chase Slasinski, Volume 106 Staff Member The use of dogs in policing is a practice that has existed in the United States for over a century.[1] Countless searches and seizures have been predicated on dogs’ detection of the faintest odors of illegal drugs, explosives,…
