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Closing the Financial Privacy Loophole: Defining "Access" in the Right to Financial Privacy Act
W. Faith McElroy
There is a hole in Fourth Amendment protection that is teetering on the verge of rapid expansion. The omnipresence of technology in the 21st century has made the use of intermediaries necessary for fully participating in society. From sending messages…
Prosecutorial Analytics
Jason Kreag
The institution of the prosecutor has more power than any other in the criminal justice system. What is more, prosecutorial power is often unreviewable as a result of limited constitutional regulation and the fact that it is increasingly exercised in…
Future-Proofing Energy Transport Law
Alexandra B. Klass
The U.S. energy system is critical to every aspect of the nation’s economy and daily life. That energy system, in turn, is completely dependent on U.S. energy transport infrastructure—the oil pipelines, natural gas pipelines, electric transmission lines, and import and…
Prisoners and Pleading
Richard H. Frankel and Alistair E. Newbern
Last year, prisoners filed nearly 27,000 civil rights actions in federal court. More than 92 percent of those actions were filed pro se. Pro se prisoners frequently use—and in many districts are required to use— standardized complaint forms provided by…
Patent-Ineligibility as Counteraction
Kevin Emerson Collins
Today, normative debates over restrictions on patent-eligibility are uniformly premised on a discrimination theory of patent-ineligibility: the restrictions are assumed to cause the patent regime as a whole to discriminate against, and thus grant weaker patent protection for, the affected…
Digitizing Tribal Law: How Codification Projects such as Tribal Law Online could give New Rise to American Indian Sovereignty
Jacob Franchek
“Today, in the United States, we have three types of sovereign entities– the Federal government, the States, and the Indian tribes.” The oft- forgotten American Indian nations have inherent sovereignty to govern themselves, by virtue of their existing as cultural…
Confirming Supreme Court Justices in a Presidential Election Year
Carl Tobias
Justice Antonin Scalia’s death prompted United States Senate Majority Leader Mitch McConnell (R-Ky.) and Judiciary Committee Chair Chuck Grassley (R-Iowa) to argue that the President to be inaugurated on January 20, 2017—not Barack Obama—must fill the empty Scalia post.1 Obama…
Four Principles for Digital Expression (You Won't Believe #3!)
Danielle Keats Citron and Neil M. Richards
At the dawn of the Internet’s emergence, the Supreme Court rhapsodized about its potential as a tool for free expression and political liberation. In ACLU v. Reno (1997), the Supreme Court adopted a bold vision of Internet expression to strike…
Legal Defiance: Government-Sanctioned Graffiti Walls and the First Amendment
Kelly Oeltjenbruns
The caricature face of Maine Governor Paul LePage, wearing a Ku Klux Klan hood and surrounded by the words homophobe, moron, and racist greeted every passerby of the Portland Water District (PWD) in Portland, Maine on September 6, 2016. The…
The View from My Window
Gregory P. Magarian
The experience of writing a book and then reading what some very smart and knowledgeable people have to say about the subject matter is humbling and a little dizzying. In Managed Speech: The Roberts Court’s First Amendment, I try to…
Managing Dissent
Timothy Zick
In his insightful new book, Managed Speech: The Roberts Court’s First Amendment (2017), Professor Greg Magarian criticizes the Roberts Court for adopting a “managed speech” approach in its First Amendment cases. According to Professor Magarian, that approach gives too much…
Public Employee Speech and Magarian’s Dynamic Diversity
Heidi Kitrosser
The Supreme Court under Chief Justice John Roberts has been praised in many quarters as a committed ally of free speech. Certainly, a number of Roberts Court decisions do protect speech. Putting aside the Court’s controversial campaign finance decisions—the merits…
A Half-Hearted Defense of the Categorical Approach
Chad Flanders
One of Professor Magarian’s more impressive achievements in Managed Speech is paying the Roberts Court the compliment of providing a theory that runs through its various First Amendment cases. The book shows us surprising and hidden connections between disparate opinions…
Public Unions Under First Amendment Fire
Tabatha Abu El-Haj
Unions today are under First Amendment fire, with the compelled speech doctrine as the weapon of choice. Conservative interests are waging a legal war against agreements that include “fair-share service fees,” under which public-sector unions are permitted to charge nonunion…
Candides and Cassandras: Technology and Free Speech on the Roberts Court
Ashutosh Bhagwat
John Roberts assumed his position as Chief Justice of the United States just prior to the commencement of the October 2005 Term of the Supreme Court. That was seven years after Google was incorporated, one year before Facebook became available…
A New Historical Jurisprudence?
Brian H. Bix
In his provocative new book, A Realistic Theory of Law, Brian Tamanaha offers a variety of insightful analyses and conclusions that may shake up analytical jurisprudence for years to come. In the course of a relatively short and highly accessible…
Against Women’s Sports
Nancy Leong
This Article challenges the longstanding assumption that sports should be segregated by sex. Imposing sex segregation on sports is problematic for many reasons. Sex segregation reflects and reinforces a binary view of both sex and gender unsupported by science. It…
Congress in the Administrative State
Brian D. Feinstein
In an era of increased concern over presidential power, congressional oversight of the executive branch constitutes a substantial—but underappreciated—means of influencing agency decision-making. Scholars too often have overlooked it, and Congress is sub-optimally designed for its provision, but oversight has…
Law’s Evolving Emergent Phenomena: From Rules of Social Intercourse to Rule of Law Society
Brian Tamanaha
Law involves institutions rooted in the history of a society that evolve in relation to surrounding social, psychological, cultural, economic, political, technological, and ecological influences. Law must be understood naturalistically, historically, and holistically. In my usage, naturalism views humans as…
Lawness
Fredrick Schauer
One of the more important insights in H.L.A.Hart’s The Concept of Law comes on the very first pages of the book, where Hart insightfully observes that the typical appeal for a definition of “law” is not really a search for…
Phenomenology, Colonialism, and the Administrative State
Edward L. Rubin
In A Realistic Theory of Law, Brian Tamanaha rejects the claim that universal legal principles exist, and its variant that essential features of law applicable to all societies can be identified. He argues that we should define law in accordance…
The Data of Jurisprudence
Gerald J. Postema
In contemporary jurisprudential writing, there is no lack of attention to method. Although I have participated in this activity, I have reservations about it, partly because it tends to be narcissistic, but more because it can encourage an unwelcome form…
The Pragmatist Tradition: Lessons for Legal Theorists
Susan Haack
As you probably noticed, my title is ambiguous—deliberately so, because my purpose here is twofold: to teach legal theorists something of the pragmatist tradition in philosophy, its history, its character, and its content; and to suggest some of the ways…
Three Forms of Legal Pragmatism
Charles L. Barzun
Within any discipline there are said to be lumpers and splitters, hedgehogs and foxes. My inclinations run to lumping, but in this essay I aim to do some splitting. Specifically, I seek to distinguish among three distinct forms of legal…
How Lambis and CSLI Litigation Mandate Warrants for Cell-Site Simulator Usage in New York
Cindy D. Ham
Over the years, various federal, state, and local law enforcement agencies have enjoyed the growth and development of technology in aiding their efforts to combat crime. Until recently, not much information had been available regarding the use, or existence, of…
Shielding Children from Pornography by Incentivizing Private Choice
In March of 2016, Playboy stopped publishing images of naked women in their magazines. According to the company’s chief executive, Scott Flanders, “[the] battle has been fought and won . . . . You’re now one click away from every…
Privacy, Poverty, and Big Data: A Matrix of Vulnerabilities for Poor Americans
Mary Madden, Michele Gilman, Karen Levy and Alice Marwick
This Article examines the matrix of vulnerabilities that low-income people face as a result of the collection and aggregation of big data and the application of predictive analytics. On one hand, big data systems could reverse growing economic inequality by…
Consumer Financial Protection in Health Care
Erin C. Fuse Brown
There are inadequate consumer protections from harmful medical billing practices that result in unavoidable, unexpected, and often financially devastating medical bills. The problem stems from the increasing costs shifting to patients in American health care and the inordinate complexity that…
Drawing the Line on Legislative Privilege: Interpreting State Speech or Debate Clauses in Redistricting Litigation
J. Pierce Lamberson
The United States Constitution and forty-three state constitutions include a Speech or Debate Clause granting legislators a legal privilege for their legislative work. Although there is a well-developed body of federal Speech or Debate Clause law granting an absolute privilege…
Case Refusal: A Right for the Public Defender but Not a Remedy for the Defendant
John P. Gross
Various arguments have been made to explain why public defenders continue to handle excessive caseloads: a lack of independence, organizational culture, or ethical blindness among them. All of these arguments are based on the idea that a public defender elects…
Return of the De Minimis Exception in Digital Music Sampling: The Ninth Circuit’s Recent Holding in VMG Salsoul Improves Upon the Sixth Circuit’s Holding in Bridgeport, but Raises Questions of its Own
Francesco Di Cosmo
A circuit split has developed over the recognition of a de minimis exception for unlicensed sampling of copyrighted digital recordings. In 2005, the Sixth Circuit opted not to recognize a de minimis exception in this field in Bridgeport Music, Inc.…
Who Should Own Police Body Camera Videos?
Laurent Sacharoff and Sarah Lustbader
Numerous cities, states, and localities have adopted police body camera programs to enhance police accountability in the wake of repeated instances of police misconduct, as well as recent reports of more deep-seated police problems. These body camera programs hold great…
Advisory Nonpreemption
Sarah E. Light
We are living in an era of dramatic and unpredictable technological and business innovation. Federal agencies have been at the forefront of updating substantive legal rules to meet new challenges not originally contemplated by Congress. Yet some innovations—for example, autonomous…
Innovation Snowballing and Climate Law
Zachary Liscow and Quentin Karpilow
Findings at the frontier of economics suggest startling implications of an under-appreciated fact about technological development: innovation builds on itself, developing path dependencies in which past innovations attract similar, but more advanced, innovations. Innovation snowballs. The world economy needs to…
Time is Money: An Empirical Assessment of Non-Economic Damages Arguments
John Campbell, Bernard Chao and Christopher Robertson
Non-economic damages (pain and suffering) are the most significant and variable components of liability. Our survey of fifty-one U.S. jurisdictions shows wide heterogeneity in whether attorneys may quantify damages as time-units of suffering (per diem) or demand a specific amount…
Fissures in the Valley: Searching for a Remedy for U.S. Tech Workers Indirectly Displaced by H-1B Visa Outsourcing Firms
Kenneth M. Geisler II
“If I could just change one law,” lamented Bill Gates, “it would be this.” What law provokes the ire of the Silicon Valley titan and co-chairman of the world’s largest philanthropic organization? Hint: it was at the center of a…
Who has Standing to Sue the President Over Allegedly Unconstitutional Emoluments?
Matthew Hall
Two provisions of the U.S. Constitution that have received comparatively little public attention over the past 227 years are suddenly all over the news, having provided the basis for three pending lawsuits against the president of the United States. The…
Algorithmic Entities
In a 2014 article, Professor Shawn Bayern demonstrated that anyone can confer legal personhood on an autonomous computer algorithm by putting it in control of a limited liability company. Bayern’s demonstration coincided with the development of “autonomous” online businesses that…
Income-Dependent Punitive Damages
Ronen Perry and Elena Kantorowicz-Reznichenko
Punitive damages are sums awarded to tort victims over and above their compensable harm. Despite their relative rarity, they have been very salient in the media, preoccupied appellate courts, and fascinated scholars for decades. This prominence may be attributed, at…
The Corporate Governance of National Security
At hundreds of companies, the government installs former spies and military officers to run the business without shareholder oversight, putting security before profits in order to protect vital projects from potentially treasonous influences. Through procedures I call “National Security Corporate…
Decentralized Public Ledger Systems and Securities Law: New Applications of Blockchain Technology and the Revitalization of Sections 11 And 12(A)(2) of the Securities Act Of 1933
When Bitcoin launched in 2009, it was the first virtual cryptocurrency to gain popularity and attain widespread use. Much attention has been paid to Bitcoin’s well-publicized advances and setbacks as the world’s foremost virtual currency. Less attention has been paid,…
The Boogeyman: Derek Boogaard and the Detrimental Effects of Section 301 Preemption
Tyler V. Friederich
This Note focuses on the preemptive effect of section 301 of the Labor Management Relations Act (LMRA) in the suit against the National Hockey League (NHL) by the Estate of former NHL player Derek Boogaard. The Note will contrast Boogaard…
The Future of GMO Labeling: How a New Federal Labeling Scheme will Alter Public Disclosure
Maria DeGiovanni
Genetic modification is a process used for a myriad of purposes, including the cultivation of plant species that ultimately find their way into countless food products across the world.1 As the usage of genetically modified organisms (GMOs) has grown, so…
IP, R.I.P.
Andrew Gilden
Death is an inevitably disruptive event. When a famous artist or public figure dies, the fallout can be particularly complex and contentious. An artist’s surviving family and close friends frequently seek privacy and solitude as they process a deeply personal…
Amnesty for Even the Worst Offenders
Jay Butler
In recent years, global policy makers have declared that heads of state must be held accountable through criminal prosecution for internationally wrongful acts. Scholars too have insisted that the international system’s embrace of accountability excludes or renders illegal the granting…
Deportation Deadline
Andrew Tae-Hyun Kim
Deadlines regulate nearly all facets of life. In U.S. law, deadlines control the timeliness of a claim in the forms of statutes of limitations and common law doctrines such as laches. In nearly all areas of the law, whether involving…
Corporate Short-Termism and Intertemporal Choice
Robert J. Rhee
This paper presents an intertemporal model of short-termism. Critics have portrayed short-termism in broad brushstrokes as the bane of corporate governance. But short-termism does not have a self-evident, efficiency-based normative value. A simple application of a well-accepted asset valuation theory…
How Ziglar v. Abbasi Sheds Light on Qualified-Immunity Doctrine
Hannah Beard
In 2011, a man was involved in a road rage incident on a public highway in New Mexico. Two women called 911 to report the man as a drunk driver who was swerving while driving. The women then drove close…
Ban the Black Box: Criminal Background Screening and the Information-Withholding Problem
Jennifer Stocker
Beverly Harrison worked for the city of Dallas, Texas, for twenty-eight years before she retired to devote more time to her grandchildren and her church. In 2013, Harrison took a job as a crossing guard for Dallas County Schools to…
The Law of Identity Harm
Sarah Dadush
Identity harm refers to the anguish experienced by consumers who learn that their efforts to consume in line with their personal values have been undermined by a company’s false or exaggerated promises about its wares. When broken, other-regarding “virtuous promises”…
A Theory of Poverty: Legal Immobility
Sara S. Greene
The puzzle of why the cycle of poverty persists and upward socioeconomic mobility is so difficult has long captivated scholars and the public alike. Yet with all of the attention that has been paid to poverty, the crucial role of…
Patenting the Unexplained
Sean B. Seymore
It is a bedrock principle of patent law that an inventor need not understand how or why an invention works. The patent statute simply requires that the inventor explain how to make and use the invention. But explaining how to…
Algorithmic Risk Assessments and the Double-Edged Sword of Youth
Megan T. Stevenson and Christopher Slobogin
Risk assessment algorithms—statistical formulas that predict the likelihood a person will commit crime in the future—are used across the country to help make life-altering decisions in the criminal process, including setting bail, determining sentences, selecting probation conditions, and deciding parole.…
A Lawyer’s Divorce: Will Decentralized Ledgers and Smart Contracts Succeed in Cutting Out the Middleman?
Charlotte R. Young
Society is progressing at a rapid pace. As math and science evolve, new technologies begin to utilize these advances and create something novel. These technological changes are revolutionizing not only the science-oriented industries, but also the humanities. One such example…
Patent Infringement in Personalized Medicine: Limitations of the Existing Exemption Mechanisms
Jiyeon Kim
Mr. X suffers from recurrent glioblastoma, a type of deadly brain cancer. One of his physicians reads a study reporting a novel immunotherapy, which uses the chimeric antigen receptor T cell (CAR-T) technology, leading to regression of glioblastoma in a…
How the War on Terror is Transforming Private U.S. Law
Maryam Jamshidi
In thinking about the War on Terror’s impact on U.S. law, what most likely comes to mind are its corrosive effects on public law, including criminal law, immigration, and constitutional law. What is less appreciated is whether and how the…
Patents and the First Amendment
Dan L. Burk
Patents are intended as a means of promoting innovation through private pecuniary incentives. But the patent system has for some time been on a collision course with guarantees of expressive freedom. Surprisingly, no one has ever subjected patent doctrine to…
Could Official Climate Denial Revive the Common Law as a Regulatory Backstop?
Mark P. Nevitt and Robert V. Percival
The Trump Administration is rapidly turning the clock back on climate policy and environmental regulation. Despite overwhelming, peer-reviewed scientific evidence, administration officials eager to promote greater use of fossil fuels are disregarding climate science. This Article argues that this massive…
Protecting the Democratic Role of the Press: A Legal Solution to Fake News
Andrea Butler
It is difficult to discuss the 2016 presidential election without including the impact of fake news in the conversation, and most commentators deplore the effect of fake news’ proliferation across the internet on American politics and the public. These conversations…
Filling the Jurisprudential Gap: “Regular and Established Place of Business” After In Re Cray, Inc.
David A. Serati
Since the nineteenth century, specific venue rules for patent infringement suits have existed in federal law. The current version of the “Patent Venue Statute” is codified in 28 U.S.C. § 1400(b), which provides that “[a]ny civil action for patent infringement…
When Shadow Removals Collide: Searching for Solutions to the Legal Black Holes Created by Expedited Removal and Reinstatement
Jennifer Lee Koh
Immigration scholarship has begun to explore the prominence of shadow removals—deportations that are executed by front-line agency officials acting outside the presence of an immigration judge—which now constitute the majority of all reported removals. This Article explores two of the…
Noncompetes as Tax Evasion
Rebecca N. Morrow
Al Capone famously boasted of his criminal empire: “Some call it bootlegging. Some call it racketeering. I call it a business.” Treasury Agent Frank Wilson and Prosecutor George Johnson put Capone behind bars not by disputing his characterization and pursuing…
No Pay for Sexist Performance: How Gender Disparities in Healthcare Hurt Hospitals’ Pay for Performance Reimbursements
Emily C. Bartlett
Gender disparities and discrimination in healthcare treatment are vast. Women in pain are deemed hysterical, heart attacks in women are caught less frequently than in men due to symptom presentation differences, and women are screened less often than men for…
Mahr Provisions and the Case for Shari’a Arbitration
Cora Allen
The global Muslim population is currently estimated at 1.8 billion people, comprising twenty-four percent of the total global population. The United States alone is home to 3.45 million Muslim individuals. Further, both global and national Muslim populations are predicted to…
Evolved Standards, Evolving Justices? The Case for a Broader Application of the Eighth Amendment
William W. Berry III
In its Eighth Amendment cases, the Supreme Court has often cited counter-majoritarian considerations as the basis for exercising judicial restraint. As a result, excessive and draconian punishments persist in the United States, with the Court being hesitant to use the…
Law and the Epistemology of Disagreements
Alex Stein
This Article identifies a discrepancy between law and epistemology and proposes a way to fix it. Our legal system relies on decisions of multimember tribunals, which include juries, state and federal appellate courts, and supreme courts. Members of those tribunals…
Balancing the Conspiracy’s Books: Inter-Competitor Sales and Price-Fixing Cartels
Christopher R. Leslie
Price fixing is antithetical to a free-market economy. Competitive markets supply goods and services to consumers at the lowest efficient prices. Unfortunately, many businesses would prefer not to compete because they can increase their profits by conspiring to raise price.…
Presidential Powers, Immunities, and Pardons
Alberto R. Gonzales
Special Counsel Robert Mueller is conducting an investigation into Russia’s interference in the 2016 presidential election and the possible coordination and cooperation with the Donald Trump presidential campaign. The investigation has raised numerous legal questions with serious political and legal…
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