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Volume 99, Issue 1

Churn

ABSTRACT From biopharmaceuticals to information technology, patents play a powerful role in the birth, death, and renewal of innovative industries. While patent scholarship has fruitfully explored the impact of exclusive rights on individual acts of invention, this Article explores patent law’s underappreciated contributions to evolutionary economic change. It argues that patents promote churn—a continual processContinue reading “Churn”

Crime and the Mythology of Police

ABSTRACT The legal policing literature has espoused one theory of policing after another in an effort to address the frayed relationship between police and the communities they serve. All have aimed to diagnose chronic policing problems in working towards structural police reform. The core principle emanating from these theoretical critiques is that the mistrust ofContinue reading “Crime and the Mythology of Police”

The Contingent Origins of Financial Legislation

ABSTRACT Courts and scholars often view major financial legislation warily. One popular theory holds that Congress only legislates in this area when pushed by opportunistic activists in response to crises that neither activists nor legislators fully understand. Another account contends that financial legislation is the well-designed product of deeply entrenched special interest groups that control the processContinue reading “The Contingent Origins of Financial Legislation”

Corporate Purpose and Corporate Competition

ABSTRACT The large American corporation faces ever-rising pressure to pursue a purpose beyond shareholder profit. This rising pressure interacts with sharp changes in industrial organization in a way that has not been comprehensively analyzed and is generally ignored. It is not just purpose pressure that is rising: firms’ capacity to accommodate that pressure for aContinue reading “Corporate Purpose and Corporate Competition”

Laws and Taxes and Big Tech, Oh My! The Case for a Federal Excise Tax on Targeted Digital Advertisements Created by Use of Personally Identifiable Data

Introduction Though there is no overt subscription fee for using “free” online platforms like Facebook, it is well established there is a hidden, continuous cost: the exchange of personally identifiable information (PII) for platform use.[1] Platforms that collect PII—the best known of which include Google and Facebook—make much of their revenue by selling digital advertisementsContinue reading “Laws and Taxes and Big Tech, Oh My! The Case for a Federal Excise Tax on Targeted Digital Advertisements Created by Use of Personally Identifiable Data”

An Anti-Conspiracy Theory: How Antitrust Law is Eroding The Constitutional Rights Protection Set Forth In § 1985(3) and § 1983

Introduction In October of 1868,[1] Benjamin F. Randolph, a Black state senator in South Carolina, was shot dead by three white men as he was stepping off the train.[2] Though the assassination occurred in broad daylight with multiple witnesses, no one ever faced charges for the murder. D. Wyatt Aiken, a former Confederate colonel, wasContinue reading “An Anti-Conspiracy Theory: How Antitrust Law is Eroding The Constitutional Rights Protection Set Forth In § 1985(3) and § 1983”

The [E]x Factor: Addressing Trauma from Post-Separation Domestic Violence as Judicial Terrorism

Abstract When victims of intimate terrorism leave their abusers, the abuse rarely ends. While many victims exit intimate relationships to try to escape the abuse, for most, their bravery in leaving only angers their abusers further. Rather than lose control over their victims, many abusers continue to manipulate and terrorize their former intimate partners forContinue reading “The [E]x Factor: Addressing Trauma from Post-Separation Domestic Violence as Judicial Terrorism”

Volume 98, Issue 6

A General Defense of Information Fiduciaries

Countless high-profile abuses of user data by leading technology companies have raised a basic question: should firms that traffic in user data be held legally responsible to their users as “information fiduciaries”? Privacy legislation to impose fiduciary-like duties on data collectors enjoys bipartisan support but faces strong opposition from scholars. First, critics argue that the information-fiduciary concept flies in theContinue reading “A General Defense of Information Fiduciaries”

A Response to Calls for SEC-Mandated ESG Disclosure

This Article responds to recent proposals calling for the SEC to adopt a mandatory ESG-disclosure framework. It illustrates how the breadth and vagueness of these proposals obscures the important—and controversial— policy questions that would need to be addressed before the SEC could move forward on the proposals in a principled way. The questions raised include some of the most contestedContinue reading “A Response to Calls for SEC-Mandated ESG Disclosure”

My Creditor’s Keeper: Escalation of Commitment and Custodial Fiduciary Duties in the Vicinity of Insolvency

Fiduciary duties in the vicinity of insolvency form a notoriously murky area where legal space warps. Courts openly acknowledge that it is difficult to identify its boundaries, and the content of these duties is equally uncertain and inconsistent across jurisdictions. This Article expands the theoretical basis for a special legal regime in virtually or liminally insolvent firms. In addition toContinue reading “My Creditor’s Keeper: Escalation of Commitment and Custodial Fiduciary Duties in the Vicinity of Insolvency”

Whistleblowers: Implications for Corporate Governance

Whistleblowers are not among the actors who populate academic accounts of corporate governance. Nor are whistleblowers visible in formal governance frameworks consisting of legal and non-legal elements that enable a firm to operate, all traceable to a corporation’s charter and bylaws adopted in compliance with the law of the state of incorporation. Within a corporation,Continue reading “Whistleblowers: Implications for Corporate Governance”

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Volume 98, Issue 5

Period Poverty in a Pandemic: Harnessing Law to Achieve Menstrual Equity

Period poverty is not new, but it has become more visible during the COVID-19 crisis. Worldwide, menstruation has long caused marginalization and vulnerability for many. The pandemic has only amplified these conditions. This Article makes three claims. The first is descriptive, identifying four interrelated aspects of global period poverty that have gained new salience during the coronavirus pandemic: lack of accessContinue reading “Period Poverty in a Pandemic: Harnessing Law to Achieve Menstrual Equity”

“Extraordinary and Compelling” Circumstances: Revisiting the Role of Compassionate Release in the Federal Criminal Justice System in the Wake of the First Step Act

This Note considers the constitutional implications and policy concerns arising from the updated compassionate release mechanism. Part I of this Note traces the statutory development of compassionate release in the federal prison system. Part II examines the place of compassionate release within the federal constitutional scheme. Part III turns to the policy concerns surrounding representation by appointed counsel of compassionateContinue reading ““Extraordinary and Compelling” Circumstances: Revisiting the Role of Compassionate Release in the Federal Criminal Justice System in the Wake of the First Step Act”

Back to Bankruptcy’s Equitable Roots: Recalibrate the Dischargeability of Student Loans Through a Modified Eighth Circuit Approach

This Note examines the bankruptcy courts’ attempt to satisfy the Undue Hardship Exception through the application of these four judicial tests. Through an analysis of each test’s shortcomings, this Note makes apparent the reasons why it is imperative for Congress to provide a definition of “undue hardship.” Not only have bankruptcy judges often bemoaned the duty to define “undue hardship,”15Continue reading “Back to Bankruptcy’s Equitable Roots: Recalibrate the Dischargeability of Student Loans Through a Modified Eighth Circuit Approach”

Negative-Value Property

Ownership is commonly regarded as a powerful tool for environmental protection and an essential solution to the tragedy of the commons. But conventional property analysis downplays the possibility of negative-value property, a category which includes contaminated, depleted, or derelict sites. Owners have little incentive to retain or restore negative-value property and much incentive to alienate it. Although the law formally prohibitsContinue reading “Negative-Value Property”

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Volume 98, Issue 4

Getting Into Court When Data Has Gotten Out: A Two-Part Framework

Part I of this Note will examine the history of the FCRA, the basics of Article III standing, and its applications to intangible harms and data-privacy related injuries. Part II of this Note will then propose two potential solutions to the standing issues that arise when consumers are granted a right to sue CRAs for data breach harms. First,Continue reading “Getting Into Court When Data Has Gotten Out: A Two-Part Framework”

Racial Transition

The United States is a nation in transition, struggling to surmount its racist past. This transitional imperative underpins American race jurisprudence, yet the transitional bases of decisions are rarely acknowledged and sometimes even denied. This Article uncovers two main ways that the Supreme Court has sought “racial transition.” While Civil Rights era decisions focused on “reckoning” with the legacies ofContinue reading “Racial Transition”

Miscarriage, Stillbirth, & Reproductive Justice

Each year in the United States, millions of women’s pregnancies end not with the birth of a living child, but in miscarriage or with the birth of a dead, stillborn child. Marginalized women face a higher risk of these undesired endings. Compared to white women, Black women are twice as likely to suffer a late miscarriage and to giveContinue reading “Miscarriage, Stillbirth, & Reproductive Justice”

Considering the Private Animal and Damages

Since 2018, private law damages claims seeking to place animals in the role of plaintiffs have––in dramatic fashion––moved from academic debate to high-profile litigation. Focusing on two recent cases, this short Article asserts that lawsuits seeking to make animals plaintiffs in damages actions are much more than flashy news fodder; they raise profound policy issues that courts will struggle withContinue reading “Considering the Private Animal and Damages”

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Volume 98, Issue 3

How Content Moderation May Expose Social Media Companies to Greater Defamation Liability

This Note will explain the critical distinction between “publishers” and “platforms,” why social media entities are currently considered “platforms,” and why the legal system should reevaluate the liability of social media entities based on how they moderate and regulate content. Part I of this Note will discuss the history of the common-law liability of contentContinue reading “How Content Moderation May Expose Social Media Companies to Greater Defamation Liability”

Economic Regulation and Rural America

Rural America today is at a crossroads. Widespread socioeconomic decline outside cities has fueled the idea that rural communities have been “left behind.” The question is whether these “left behind” localities should be allowed to dwindle out of existence, or whether intervention to attempt rural revitalization is warranted. Many advocate non-intervention because rural lifestyles areContinue reading “Economic Regulation and Rural America”

Arbitrator Diversity: Can It Be Achieved?

The 2018 lawsuit Jay-Z brought against the American Arbitration Association (AAA) because the list of twelve arbitrators AAA provided in a breach of contract dispute did not include a black arbitrator highlighted ongoing concerns about the lack of diversity in the arbitrator corps. Given arbitration’s already less formal structure, one method for enhancing its legitimacyContinue reading “Arbitrator Diversity: Can It Be Achieved?”

It’s Five O’Clock Everywhere: A Framework for the Modernization of Time

This Note discusses existing legal procedures by which the current system of time could be modified to adapt to contemporary social changes and reduce time switching. Part I describes how the current system of timekeeping evolved and explains why it results in frequent time switching today. Part II considers the effectiveness of ongoing efforts byContinue reading “It’s Five O’Clock Everywhere: A Framework for the Modernization of Time”

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Volume 98, Issue 2

Model Language for Supported Decision-Making Statutes

States often impose guardianship on people whose disabilities interfere with their decision-making ability, thereby entrusting another person with decision-making on their behalf. People with disabilities, activists, and scholars have critiqued the guardianship system for not doing enough to investigate the actual limitations of those subjected to guardianship and for denying too many of their rights.Continue reading “Model Language for Supported Decision-Making Statutes”

Copyright and the Brain

This Article explores the intersection of copyright law, aesthetic theory, and neuroscience. The current test for copyright infringement requires a court or jury to assess whether the parties’ works are “substantially similar” from the vantage point of the “ordinary observer.” Embedded within this test are several assumptions about audiences and art. Brain science calls theseContinue reading “Copyright and the Brain”

Inmate Constitutional Claims and the Scienter Requirement

Scholars have criticized requirements that inmates prove malice or deliberate indifference to establish constitutional claims against corrections officials. The Eighth Amendment currently requires convicted prisoners to show that a prison official acted “maliciously or sadistically” to establish an excessive force claim and with subjective “deliberate indifference” to establish a claim of unconstitutional prison conditions. SimilarContinue reading “Inmate Constitutional Claims and the Scienter Requirement”

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Volume 98, Issue 1

Lies Behind Bars: An Analysis of the Problematic Reliance on Jailhouse Informant Testimony in the Criminal Justice System and a Texas-Sized Attempt to Address the Issue

The advent of DNA technology in the late 1980s led to a wave of exonerations in the United States, shedding light on major problems with the U.S. criminal justice system. Many of these wrongful convictions were traced back to criminal informants, colloquially referred to as “snitches,” who provided incriminating testimony in exchange for a sentenceContinue reading “Lies Behind Bars: An Analysis of the Problematic Reliance on Jailhouse Informant Testimony in the Criminal Justice System and a Texas-Sized Attempt to Address the Issue”

Constraining the Statutory President

When agencies make decisions that are binding on the public, they must provide public notice, accept and consider public comments, and provide explanations for their final decisions. Their actions are then subject to judicial review to ensure that they acted within the scope of their authority and the decision was not arbitrary or capricious. TheContinue reading “Constraining the Statutory President”

Payday

Legislation lags behind technology all too often. While trillions of dollars are exchanged in online transactions—safely, cheaply, and instantaneously—workers still must wait two weeks to a month to receive payments from their employers. In the modern economy, workers are effectively lending money to their employers, as they wait for earned wages to be paid. The sameContinue reading “Payday”

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