Articles, Essays, & Tributes
Bankruptcy as a National Security Risk
By JASON JIA-XI WU. Full Text. Defense contractors lie at the heart of the U.S. national security regime. Each year, over half of the federal defense budget is allocated to contracts outsourcing military operations, projects, and services to private companies. However, defense outsourcing carries a ticking time bomb: mounting private debt. Today, the defense industry…
The Innocence Trap
By CAITLIN GLASS & JULIAN GREEN. Full Text. What makes a conviction wrongful? Developments in DNA science have led to a wave of exonerations over the past thirty years, revealing sources of error in the criminal legal process. Innocence organizations proliferated to represent people whose convictions could be overturned by newly discovered evidence. This is…
Regulatory History and Judicial Review
By TODD PHILLIPS & ANTHONY MOFFA. Full Text. The Administrative Procedure Act (APA) requires federal agencies to simply “incorporate in the rules adopted a concise general statement of their basis and purpose” after they receive comments from the public, and the Supreme Court ruled in Overton Park that courts are to adjudicate whether rules are…
The Crisis in U.S. Cancer Care: Law, Markets, and Privatization
By DANIEL G. AARON. Full Text. Cancer is surging among youth and young adults in the United States, yet, instead of public regulation addressing its root causes, we have outsourced the management of cancer to the private sector. A suite of laws, embodying faith that corporations will cure cancer, has subsidized the cancer biomedical enterprise…
The Poly Problem in Zoning: Redefining “Family” for a Changing Society
By ARIC SHORT & TANYA PIERCE. Full Text. Single-family zoning has long dictated not only where people may live but also with whom. Although extensively critiqued for perpetuating racial and economic exclusion, these laws also privilege relationships defined by blood, marriage, or adoption and marginalize nontraditional families. This Article focuses on a particularly overlooked group:…
Notes
Waging the Battle for Society’s Soul: The Constitutionality of Juvenile Transfer Legislation in the Wake of Jones v. Mississippi
By LOGAN KNUTSON. Full Text. Trying juvenile defendants as adults is a cruel, yet enduring practice in U.S. criminal law. If convicted, these youthful offenders face brutal conditions in adult prison and a lifelong stigma. Although these devastating consequences of conviction are readily apparent, juvenile transfer is insidious even absent a prison sentence or criminal…
The Skidmore Compromise: Interpreting Skidmore as a Tiebreaker to Preserve Judicial Wisdom in the Era of Loper Bright
By MITCHELL ZAIC. Full Text. ‘Law must be stable, and yet it cannot stand still.’ Here is the great antinomy confronting us at every turn. Rest and motion, unrelieved and unchecked, are equally destructive. The law, like human kind, if life is to continue, must find some path of compromise. – Judge Cardozo In the…
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,…
