Articles, Essays, & Tributes
Racial Disparities in Crime-Based Removal Proceedings
By EMILY RYO, IAN PEACOCK, WESTON LEY, and CHRISTOPHER LEVESQUE. Full Text. Whether and to what extent racial minorities experience harsher treatment or face worse outcomes in court are questions of fundamental importance for any justice system. Questions of racial inequality are especially salient in the context of removal proceedings that are triggered by immigrants’…
Toward a Dynamic View of Corporate Purpose
By DOROTHY LUND. Full Text. Scholars debating the corporation’s role in society generally advance the view that there is only one desirable orientation for corporations and their management. Specifically, proponents of a stakeholder governance model contend that focusing management on a broad set of corporate constituents maximizes overall welfare, while advocates of a shareholder-centric directive…
Forced Arbitration in the Fortune 500
By DAVID HORTON. Full Text. As the Federal Arbitration Act (FAA) nears its centennial, its most controversial byproduct—forced arbitration—has entered uncharted territory. For years, companies exploited their power over fine print to produce ambitious dispute resolution regimes. This trend reached its apex in the 2010s, when the Supreme Court held that arbitration is incompatible with…
Suspecting with Data
By MARY D. FAN. Full Text. Our pooled consumer big data, such as the pictures we post or the location history and keyword search trails we leave, are generating new ways to solve crimes. Much of the commentary on big data search strategies such as keyword, geofence, and facial recognition searches fixate on Fourth Amendment…
Against Attorney General Self-Referral in Immigration Law
By STELLA BURCH ELIAS and PAUL GOWDER. Full Text. This Article advances a rule-of-law-based critique of the Attorney General’s immigration self-referral power. We argue that the Attorney General’s self-referral and review power over pending immigration proceedings allows an appointed Executive Branch official to engage in unchecked and unilateral lawmaking and, therefore, should be abolished. Scholars…
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…
Protecting Minnesota’s Whistleblowers: Ending the Application of McDonnell Douglas to the Minnesota Whistleblower Act
By EDDIE C. BRODY. Full Text. Whistleblowers are critical to society, speaking out to protect the public from corporate and government wrongdoing. Employers often retaliate against employees who speak out, attempting to deter employees from blowing the whistle. Whistleblower protection statutes seek to protect those who suffer from retaliation, providing a judicial remedy for whistleblowers.…
Forgotten Victims: Exploring the Right to Family Integrity as a Form of Redress for Children of Wrongfully Convicted Parents
By EMILY BYERS OLSON. Full Text. Almost five million children in the United States have had a parent incarcerated at some point in their lives. Children who grow up with an incarcerated parent face immense challenges, including mental health issues, problems at school, economic hardship, and the propensity to participate in criminal activity themselves. When…
“Key” Tam: Giving Teeth to Federal Data Security Enforcement
By BRANDON STOTTLER. Full Text. Data breaches wreak havoc on data-handling entities, weigh heavily on the minds and hearts of breach victims, and elude the efforts of regulators and scholars alike. Since 2005, declared the “Year of the Data Breach,” every year has seen an increase in the number and impact of breaches. Data breaches…
150 Years of Detox: How Inadequate Dietary Supplement Regulation Undermines Consumer Safety in the Weight Loss Industry
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,…
Asking the Right Questions: An Emergency Action Exception to the Major Questions Doctrine
By MARK HAGER. Full Text. Congress delegates broad discretionary power to administrative agencies to respond to emergency situations, taking advantage of their extraordinary expertise and response speed. Yet these delegations are defined by a judicial rule known as the “Major Questions Doctrine.” The Major Questions Doctrine seeks to protect the separation of powers by preventing…
Who Watches the Watchers?: FINRA, Self-Regulatory Organizations, and the Next Evolution of Appointment and Removal Jurisprudence
By HANS M. FRANK-HOLZNER. Full Text. There are private, non-profit corporations exercising significant executive power. Known as self-regulatory organizations (SROs) these non-governmental organizations make binding rules and sometimes enforce statutory law governing massive industries. One such SRO is the Financial Industry Regulatory Authority (FINRA). In 2022 alone, FINRA permanently barred 227 individuals and suspended 328…
Building Bridges: Queer Rights in and out of the Courts
By KAZ LANE. Full Text. It is unclear whether the Equal Protection Clause of the Fourteenth Amendment prohibits states from differentiating between people based solely on their sexual orientation and/or gender identity. This Note analyzes the Supreme Court’s tiers of scrutiny—rational basis review, intermediate scrutiny, and strict scrutiny—to argue that a new suspect class is…
Headnotes
Commodification, Precarity, and Identity: A Review of Professor Bridget Crawford’s Taxing Sugar Babies
By TESSA DAVIS. Full text.
The Liminality of Transactional Relationships
By VICTORIA J. HANEMAN. Full Text.
Tax Talk and Taxing Sugar Babies
By BLAINE G. SAITO. Full Text.
John Roberts’ Supreme Court: The Triumph of Partisanship and Ideology Over Precedent
By DAVID SCHULTZ & JACOB BOURGAULT. Full Text.
Critical Curriculum Design: Teaching Law in an Age of Rising Authoritarianism
By RACHEL LÓPEZ. Full Text.
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,…
