Articles, Essays, & Tributes
The Bogeyman of Environmental Regulation: Federalism, Agency Preemption, and the Roberts Court
By KAMAILE A.N. TURČAN. Full Text. In a trio of environmental cases—West Virginia v. EPA, Sackett v. EPA, and Loper Bright v. Raimondo—the Roberts Court curtailed the federal regulatory power and produced corresponding deregulatory outcomes under seemingly neutral legal principles. This Article interrogates the doctrinal coherency of the Roberts Court’s jurisprudence by applying the rationales…
Filling the Sackett Gap: The Private Governance Option
By MICHAEL P. VANDENBERGH, ELODIE O. CURRIER STOFFEL, and STEPH TAI. Full Text. The Supreme Court’s decision in Sackett v. EPA reversed fifty years of federal Clean Water Act wetlands protections and removed federal oversight from roughly half of the wetlands in the United States. This Article proposes a viable new conceptual model and tools…
The Impact of Loper Bright v. Raimondo: An Empirical Review of the First Six Months
By ROBIN KUNDIS CRAIG. Full Text. One of the most impactful decisions of the U.S. Supreme Court’s 2023–2024 term was Loper Bright Enterprises v. Raimondo, which overruled the forty-year-old administrative law doctrine of Chevron deference. This doctrine allowed federal agencies to interpret ambiguities in the statutes that they administer. Courts cited Chevron over 18,000 times…
Water Flowing Down Wall Street
By VANESSA CASADO PÉREZ. Full Text. Water scarcity is a perennial problem with dire consequences for the United States and governments around the world. A lack of adequate water resources is a systematic cause of environmental harm, economic damage, and societal division. Climate change has exacerbated these problems making water even more valuable and essential.…
The Four Horsemen of the New Separation of Powers: The Environmental Law Implications of West Virginia, Sackett, Loper Bright, and Corner Post
By ERIN RYAN. Full Text. This Article explores how several of the Supreme Court’s most recent environmental decisions—West Virginia v. EPA, Sackett v. EPA, and Loper Bright v. Raimondo—will shift the constitutional balance of power, and how the polity might respond. Under the pretense of safeguarding legislative power, they consolidate judicial power to decide regulatory…
Catching Nutrients in a Net: Collective Action, Institutional Impediments, and the Mississippi River Watershed
By JONATHAN ROSENBLOOM. Full Text. Thousands of local governments in the Mississippi River watershed possess regulatory land use authority. From a narrow law and economics standpoint, when these entities extract from, add to, or pollute the watershed, it may appear as a classic tragedy of the commons problem. The tragedy sounds something like this: local…
Renewable Energy Federalism 2.0
By DANIELLE STOKES. Full Text. Much like climate change, the clean energy transition presents a “super wicked” problem that is further complicated by prioritizing justice. History has taught us that government regulation, industry innovation, and community engagement are the catalysts of effective transitions. Similarly, the just energy transition requires the support of these interconnected networks.…
The Clean Water Act and Avoidance Creep
By JACK H.L. WHITELEY. Full Text. In Sackett v. EPA, the Supreme Court set out a test for the Clean Water Act’s jurisdiction over wetlands. The Act, the Court held, protects only those wetlands that have a continuous surface connection to relatively permanent bodies of water like streams, rivers, and lakes. If the connection lies…
Environmental and Energy Regulation Reformation: Challenges and Solutions After West Virginia v. EPA, Sackett v. EPA, and Loper Bright Enterprises v. Raimondo
By SHANNON SCHOOLEY. Full Text. A foreword to the symposium issue of Minnesota Law Review volume 109.
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
GAME OF PHONES: THE IRS’S OUTDATED INFORMATION TECHNOLOGY IS CAUSING SERVICE AND LEGAL ISSUES FOR THE U.S. TAXPAYER
By: Alec Lybik, Volume 106 Staff Member As a law student, I thought I was done with math. Unfortunately, my struggles in eighth-grade algebra came back to haunt me when I attempted to calculate the probability of reaching the IRS after they disconnected my call…
CURTAILING INTERNET EXCEPTIONALISM: FRANCES HAUGEN’S CALL TO AMEND SECTION 230 AND HOLD FACEBOOK ACCOUNTABLE FOR ITS ALGORITHMIC HARM
By: Ellison Snider, Volume 106 Staff Member Last month, Frances Haugen, former product manager at Facebook, testified to the Senate Committee on Commerce, Science, and Transportation about the company’s one-way mirror on its users.[1] After leaking private internal Facebook documents to the Wall Street Journal,…
CAN A NON-SECRET BE A STATE SECRET? EXAMINING STATE SECRETS PRIVILEGE IN UNITED STATES V. ZUBAYDAH
By: Kimberly Ortleb, Volume 106 Staff Member On October 6, 2021, the Supreme Court heard oral arguments for United States v. Zubaydah,[1] which presents the question of how far state secrets privilege extends. Zayn al-Abidin Muhammad Husayn (“Zubaydah”) was disappeared and tortured as a part…
RISING TO THREE OCCASIONS: THE SUPREME COURT GRAPPLES WITH HOW TO COUNT PRIOR CONVICTIONS IN THE ACCA CONTEXT
By: Haley Wallace, Volume 106 Staff Member The Armed Career Criminal Act (ACCA)[1] was enacted to severely punish society’s worst criminal offenders.[2] Congress passed the ACCA in 1984 specifically to target the “most dangerous, frequent, and hardened offenders,”[3] and to “incapacitate the armed career criminal…
FILMING POLICE IN THE WAKE OF GEORGE FLOYD’S MURDER: A FIRST AMENDMENT RIGHT?
By: Dylan Saul, Volume 106 Staff Member The murder of George Floyd, at the hands of Minneapolis police officer Derek Chauvin, sparked a nation-wide reckoning with racism and police brutality that might not have happened had seventeen-year-old Darnella Frazier not recorded the murder on her…
PAY NO ATTENTION TO THE MEANING BEHIND THAT TEXT—HOW A TEXTUALIST INTERPRETATION OF THE FEDERAL OFFICER REMOVAL STATUTE CREATES ABSURD RESULTS IN BP V. BALTIMORE
By Hannah Wiles, Volume 105 Staffer On January 19, 2021, the Supreme Court heard arguments in BP PLC v. Mayor and City of Baltimore,[1] one of several “climate change” lawsuits currently being brought by cities, counties, and states against the fossil fuel industry.[2] While the…
WHAT’S SO DEPRAVED? ANALYZING THIRD-DEGREE DEPRAVED-MIND MURDER IN MINNESOTA AFTER THE CHAUVIN AND NOOR TRIALS
By: Keenan Roarty, Volume 105 Staff Member Third-degree depraved-mind murder has never had so much attention in Minnesota as it does now. In two recent, high-profile police brutality cases, Derek Chauvin and Mohamed Noor were both convicted of third-degree depraved-mind murder.[1] But under the…
HATE IS A VIRUS: RECENT SURGE IN ANTI-ASIAN HATE CRIMES AND THE SUFFICIENCY OF THE CURRENT HATE CRIME LAWS
By: Youngjin Jang, Volume 105 Staff Member The hateful killings of six women of Asian descent in Georgia on March 17th have left the Asian American and Pacific Islander (“AAPI”) community in fear.[1] Although discrimination against Asians has always existed throughout American history,[2] the U.S.…
WALQUIST HARMS THE POOR: REVISITING SUPERVISORY APPROVAL FOR ACCURACY PENALTIES
By: Patrick Riley Murray, Volume 105 Staff Member The Internal Revenue Service (IRS) processes more than 250 million business and individual tax returns each year.[1] The vast majority of these returns are correctly filed and end in either additional tax paid or a refund.[2] When…
CONSIDERATIONS FOR MINNESOTA AGRICULTURE COOPERATIVES
By: Emily Buchholz, Billy Bigham & Maci Burke Cooperatives have long been popular in Minnesota, due in part to the state’s sizeable agriculture industry and Scandinavian population.[1] In fact, Minnesota is home to the top two revenue-producing agriculture cooperatives in the United States: CHS Inc.…
