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Generated by All in One SEO v4.9.6.2, this is an llms.txt file, used by LLMs to index the site. # Minnesota Law Review ## Sitemaps - [XML Sitemap](https://minnesotalawreview.org/sitemap.xml): Contains all public & indexable URLs for this website. ## Posts - [De Novo Archive](https://minnesotalawreview.org/de-novo-archive/) - barne102 - Minnesota Law Review - [CHANGE THE SYSTEM, NOT THE WOMAN: ADDRESSING WORKPLACE INEQUITIES STEMMING FROM THE AMERICAN ECONOMY](https://minnesotalawreview.org/2024/12/20/change-the-system-not-the-woman-addressing-workplace-inequities-stemming-from-the-american-economy/) - By: Alyssa Shaw, Volume 109 Staff Member If the progress towards closing the gender wage gap continues on the trends of the last few years, women will not be compensated equally to men until at least 2067—over a century after the passage of the Equal Pay Act.[1] Women working full-time, year-round receive just 84 cents lawreview - Minnesota Law Review - [HOW RFK’S RECENT COURT BATTLES TO GET ON (AND OFF) THE BALLOT EXEMPLIFY WHY A THIRD-PARTY CANDIDATE WILL NEVER WIN THE PRESIDENCY](https://minnesotalawreview.org/2024/10/31/how-rfks-recent-court-battles-to-get-on-and-off-the-ballot-exemplify-why-a-third-party-candidate-will-never-win-the-presidency/) - By: Sophia Antonio, Volume 109 Staff Member Former presidential candidate, Robert F. Kennedy Jr. (RFK), dominated the summer news cycle with bizarre controversies. [1] RFK dropped out of the presidential race, where he ran as a third-party candidate, on August 23rd and endorsed former President Donald Trump. [2] RFK stated he decided to drop out lawreview - Minnesota Law Review - [READY, AIM, FIRE? EVALUATING THE FUTURE OF LIABILITY FOR THE FIREARMS INDUSTRY DURING NEW-WAVE PLCAA LITIGATION](https://minnesotalawreview.org/2024/04/15/ready-aim-fire-evaluating-the-future-of-liability-for-the-firearms-industry-during-new-wave-plcaa-litigation/) - By: Will Roberts, Volume 108 Staff Member I. MECHANISMS FOR FIREARMS INDUSTRY LIABILITY In 2005, Congress enacted the Protection of Lawful Commerce in Arms Act (PLCAA) which significantly shielded members of the firearms industry from civil liability for over a decade.[1] PLCAA prohibits “civil action[s] . . . brought by any person against a [firearms] lawreview - Minnesota Law Review - [A NEW TAKE ON TAKINGS: BIG PHARMA’S CONSTITUTIONAL CHALLENGES TO BIDEN’S INFLATION REDUCTION ACT](https://minnesotalawreview.org/2024/04/15/a-new-take-on-takings-big-pharmas-constitutional-challenges-to-bidens-inflation-reduction-act/) - By: Marie Lundgren, Volume 108 Staff Member I. BACKGROUND In 2003, Congress passed the Medicare Modernization Act, marking the largest expansion of benefits in the 38-year history of U.S. public healthcare.[1] When the Medicare program was first enacted in 1965, it covered hospital stays (under Part A), physician office visits (under Part B), and pharmaceuticals lawreview - Minnesota Law Review - [CONVENIENT OR CONFRONTATIONAL?: <em>SAMIA</em> WIDENS CONSTITUTIONAL LOOPHOLE](https://minnesotalawreview.org/2024/04/15/convenient-or-confrontational-samia-widens-constitutional-loophole/) - By: Mark Hager, Volume 108 Staff Member On June 23, 2023, the Supreme Court issued its opinion in Samia v. United States, the latest in a line of cases regarding the use of non-testifying co-defendant confessions in joint criminal trials.[1] Together, these cases operate as a loophole to the Confrontation Clause of the Sixth Amendment.[2] lawreview - Minnesota Law Review - [THE FIGHT FOR PRIVACY: CALLING FOR BROAD ONLINE PRIVACY REFORM IN THE AGE OF BEING CHRONICALLY ONLINE](https://minnesotalawreview.org/2024/04/15/the-fight-for-privacy-calling-for-broad-online-privacy-reform-in-the-age-of-being-chronically-online/) - By Lea Chapoton, Volume 108 Staff Member In the wake of 2022’s Dobbs v. Jackson Women’s Health Organization[1] decision and the ensuing barrage of state laws limiting abortion access, online discussions surged with strategies for maintaining reproductive freedom in potentially hostile circumstances. One popular piece of advice urged deletion of period tracking apps because companies lawreview - Minnesota Law Review - [SUPREME SPECULATION: WHAT ORAL ARGUMENTS HINT ABOUT HOW JUSTICES ARE LEANING IN <em>CAMPOS-CHAVES V. GARLAND</em>](https://minnesotalawreview.org/2024/04/15/supreme-speculation-what-oral-arguments-hint-about-how-justices-are-leaning-in-campos-chaves-v-garland/) - By Hans Frank-Holzner, Volume 108 Staff Member On January 8, 2024, the Supreme Court heard oral arguments in Campos-Chaves v. Garland,[1] a consolidation of three immigration cases concerning the statutory notice requirements the government must meet before it can order a noncitizen removed without a hearing.[2] Under the government’s reading, the Immigration and Nationality Act lawreview - Minnesota Law Review - [NO PLACE LIKE HOME . . . UNLESS YOU CAN’T GET IN: THE LACK OF NON-DELIVERY PROTECTIONS FOR MINNESOTA TENANTS](https://minnesotalawreview.org/2023/11/22/no-place-like-home-unless-you-cant-get-in-the-lack-of-non-delivery-protections-for-minnesota-tenants/) - By Cheyenna González Pilsner, Volume 108 Staff Member On August 2, 2023, Identity, a new housing complex near the University of Minnesota, notified its tenants they would be unable to move in on the lease-given day of August 27, 2023, citing construction delays.[1] This notice came one day after tenants were required to pay their lawreview - Minnesota Law Review - [A HAZY FIVE HOURS: MINNESOTA SHOULD NOT REINVENT THE WHEEL IN ADDRESSING THC BEVERAGES IN RESTAURANTS](https://minnesotalawreview.org/2023/11/22/a-hazy-five-hours-minnesota-should-not-reinvent-the-wheel-in-addressing-thc-beverages-in-restaurants/) - By Shannon Schooley, Volume 108 Staff Member In 2023, Minnesota legalized recreational cannabis.[1] Although Minnesota followed twenty-two states and the District of Columbia in doing so,[2] its legal landscape presents unique regulatory challenges.[3] Minnesota’s full-scale recreational legalization comes on the heels of a partial legalization in 2022 for edible, low-potency, hemp-derived THC products that unleashed lawreview - Minnesota Law Review - [BETTING ON THE FUTURE: DISCUSSING PATHS FORWARD FOR MINNESOTA TO LEGALIZE SPORTS BETTING](https://minnesotalawreview.org/2024/01/12/betting-on-the-future-discussing-paths-forward-for-minnesota-to-legalize-sports-betting/) - By Benjamin Albert Halevy, Volume 108 Staff Member From pull-tab vending machines at bars to tribe-owned casinos sporting slot machines and blackjack tables, Minnesota is no stranger to gambling within its borders. Yet, sports gambling, the fastest growing sector of gaming, remains wholly illegal within the state.[1] Whether it be through direct legislation or through lawreview - Minnesota Law Review - [DE-TRUMPING THE 2024 ELECTION? REVIEWING MINNESOTA’S ROLE IN THE MOVEMENT TO BAN DONALD TRUMP FROM THE BALLOT](https://minnesotalawreview.org/2024/01/12/de-trumping-the-2024-election-reviewing-minnesotas-role-in-the-movement-to-ban-donald-trump-from-the-ballot/) - By Callan Showers, Volume 108 Staff Member On November 2, 2023, the Minnesota Supreme Court heard oral arguments on whether Donald Trump can lawfully appear on Minnesota’s ballots in the 2024 Presidential election due to his participation in efforts to overthrow the 2020 election, culminating in the January 6, 2021 siege on the Capitol.[1] Six lawreview - Minnesota Law Review - [MICHIGAN’S NEW POINT OF NO RETURN: EVOLVING AGE RESTRICTIONS ON MANDATORY LIFE WITHOUT PAROLE](https://minnesotalawreview.org/2023/11/14/michigans-new-point-of-no-return-evolving-age-restrictions-on-mandatory-life-without-parole/) - By Chad Berryman, Volume 108 Staff Member In July 2022, the Michigan Supreme Court decided People v. Parks, in which it held that mandatory life without parole sentences for eighteen-year-olds convicted of first-degree murder violate the Michigan Constitution’s prohibition of cruel or unusual punishment.[1] This ruling went beyond prior U.S. Supreme Court decisions such as Miller lawreview - Minnesota Law Review - [GRISHAM FLEXES HER GUNS: HOW TO FIRE BACK AT STATE EXECUTIVE ACTION](https://minnesotalawreview.org/2023/11/14/grisham-flexes-her-guns-how-to-fire-back-at-state-executive-action/) - By: Sam Black, Volume 108 Staff Member On Friday, September 8th, New Mexico Governor Michelle Lujan Grisham issued an emergency order suspending the right to carry firearms in public across Albuquerque and the surrounding county for at least thirty days in response to a spate of gun violence.[1] The state has one of the highest lawreview - Minnesota Law Review - [WHEN TOTAL DOESN'T MEAN COMPLETE: WHY COURTS SHOULD ADOPT THE STATE CREATED NEED THEORY](https://minnesotalawreview.org/2023/04/19/when-total-doesnt-mean-complete-why-courts-should-adopt-the-state-created-need-theory/) - By: Dylan Schepers, Volume 107 Staff Member Introduction It was the black of midnight in mid-March 2020. Four police officers approached the front door of an apartment in Louisville Kentucky prepared to execute a drug-related search warrant.[1] Breonna Taylor and her boyfriend Kenneth Walker were asleep just on the other side of the front door lawreview - Minnesota Law Review - [STATE CONSTITUTIONAL A(MN)DMENTS: NOW IS THE TIME FOR THE MINNESOTA LEGISLATURE TO AMEND THE MINNESOTA CONSTITUTION WITH THE EQUAL RIGHTS AMENDMENT](https://minnesotalawreview.org/2023/04/18/state-constitutional-amndments-now-is-the-time-for-the-minnesota-legislature-to-amend-the-minnesota-constitution-with-the-equal-rights-amendment/) - By: Evan Dale, Volume 107 Staff Member As the U.S. Supreme Court has retreated on its protection of individual rights,[1] state constitutions have taken on a renewed interest. This became as evident as ever in 2022. With the Supreme Court stripping the rights of women to choose to have an abortion,[2] many state constitutions became lawreview - Minnesota Law Review - [MIFPA WITHOUT ICWA: ASSESSING THE FATE OF THE MINNESOTA INDIAN FAMILY PRESERVATION ACT IF THE INDIAN CHILD WELFARE ACT IS OVERTURNED IN <em>BRACKEEN v. HAALAND</em>](https://minnesotalawreview.org/2023/04/14/mifpa-without-icwa-assessing-the-fate-of-the-minnesota-indian-family-preservation-act-if-the-indian-child-welfare-act-is-overturned-in-brackeen-v-haaland/) - By: Ryan Liston, Volume 107 Staff Member The United States and the colonies that predated it have a sordid past when it comes to the treatment of Indigenous people.[1] Among the countless examples of mistreatment, one particularly shameful practice was separating Indigenous children from their parents in an attempt to assimilate the children into European-American lawreview - Minnesota Law Review - [A TEST OF PRECEDENT, POLICY & HUMANITY: AN ANALYSIS OF FLORIDA’S PROPOSED EXPANSIONS TO STATE CAPITAL PUNISHMENT LAW](https://minnesotalawreview.org/2023/04/10/a-test-of-precedent-policy-humanity-an-analysis-of-floridas-proposed-expansions-to-state-capital-punishment-law/) - By: Adam Kolb, Volume 107 Staff Member The death penalty is primitive.[1] The death penalty is ineffective and garners increasing disapproval.[2] The death penalty—though constitutionally challenged and curtailed[3]—is legal in the United States.[4] Now, the extent of its legality is set to be tested yet again by proposed legislation arising in Florida.[5] In January 2023, lawreview - Minnesota Law Review - [I (DON’T) KNOW IT WHEN I SEE IT: THE DANGERS OF DEEPFAKES](https://minnesotalawreview.org/2023/04/05/i-dont-know-it-when-i-see-it-the-dangers-of-deepfakes/) - By: Ryken Kreps, Vol. 107 Staff Member[1] Deepfakes are images, videos, or audio clips created by artificial intelligence that show people doing whatever the deepfake creator wants to show them doing with eerie accuracy.[2] Part I of this Post discusses the background of deepfakes and the recent controversy surrounding them. Part II is intended to lawreview - Minnesota Law Review - [THE CONFEDERATE STAKES OF AMERICAN LAW: THE PARTISAN RISK TO THE FULL FAITH AND CREDIT CLAUSE AND A CONSTITUTIONAL CRISIS IN THE MAKING](https://minnesotalawreview.org/2023/04/07/the-confederate-stakes-of-american-law-the-partisan-risk-to-the-full-faith-and-credit-clause-and-a-constitutional-crisis-in-the-making/) - By: Jordan Boudreaux, Volume 107 Staff Member Article IV, Section 1 of the Constitution requires that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other state.”[1] Conceptually, the Full Faith and Credit Clause (“the Clause” or “Article IV”) provides several functions—the Clause prevents lawreview - Minnesota Law Review - [FREE SPEECH ON CAMPUS SIDEWALKS: SUPREME COURT MAY TAKE AIM AT FIRST AMENDMENT FORUM BALANCING TEST IN <em>KEISTER</em>](https://minnesotalawreview.org/2023/04/06/free-speech-on-campus-sidewalks-supreme-court-may-take-aim-at-first-amendment-forum-balancing-test-in-keister/) - By: John M. Stack, Volume 107 Staff Member Keister v. Bell is the latest major case petitioned to the Supreme Court to confront classifying the status of a public forum for First Amendment purposes.[1] While the Court is unlikely to grant certiorari, if they do I predict that they will fundamentally alter forum categorization under lawreview - Minnesota Law Review - [HABITABILITY DEFENSE ON THE <em>FRITZ</em>: RENT POSTING REQUIREMENTS AND CHALLENGES IN MINNESOTA](https://minnesotalawreview.org/2023/04/03/habitability-defense-on-the-fritz-rent-posting-requirements-and-challenges-in-minnesota/) - Lucy Dougherty, Volume 107 Staff Member When tenants face an eviction for non-payment of rent in Hennepin County, they may have an affirmative defense to the eviction action if the landlord has broken the covenant of habitability.[1] The covenant of habitability is a statutory right in Minnesota which requires landlords “maintain the premises in compliance lawreview - Minnesota Law Review - [THOMAS ON TRIAL: HOW SUPREME COURT JUSTICE CLARENCE THOMAS HAS INFLUENCED THE CURRENT AFFIRMATIVE ACTION CASES BEFORE THE COURT](https://minnesotalawreview.org/2023/01/19/thomas-on-trial-how-supreme-court-justice-clarence-thomas-has-influenced-the-current-affirmative-action-cases-before-the-court/) - By: Dahlia Wilson, Volume 107 Staff Member In the 2022–23 term, the Supreme Court is faced with two seminal cases regarding universities’ uses of “affirmative action”—a.k.a. the consideration of race—in their admissions practices. Both Students for Fair Admissions v. University of North Carolina[1] and Students for Fair Admissions v. President & Fellows of Harvard College[2] lawreview - Minnesota Law Review - [FOOD FOR THOUGHT: THE EMERGENCE OF RIGHT-TO-FOOD LEGISLATION IN THE UNITED STATES](https://minnesotalawreview.org/2023/02/13/food-for-thought-the-emergence-of-right-to-food-legislation-in-the-united-states/) - By: Randa Larsen, Volume 107 Staff Member On November 2, 2021, Maine voters did something no other state in the United States has done—they approved an amendment that sets out a constitutional right to food.[1] This Amendment did not come out of thin air. Before the approval, Maine had a food sovereignty law that advocated lawreview - Minnesota Law Review - [CLARITY AT A COST: HOW NEW REGULATIONS MAY PUT WELL-INTENTIONED GUN OWNERS AT RISK OF CIVIL AND CRIMINAL CHARGES](https://minnesotalawreview.org/2023/03/31/clarity-at-a-cost-how-new-regulations-may-put-well-intentioned-gun-owners-at-risk-of-civil-and-criminal-charges/) - By: Nick Grossardt, Volume 107 Staff Member At the end of January 2023, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE) promulgated a final rule outlining a series of factoring criteria for regulating firearms with affixed “stabilizing braces.”[1] Various models of these braces had been evaluated by the BATFE’s Firearms and Ammunition Technology Division lawreview - Minnesota Law Review - [KEEP ROLLING: AFTER PROVIDING AUTOMATIC EXPUNGEMENT FOR CERTAIN MARIJUANA OFFENSES MINNESOTA SHOULD ENACT AUTOMATIC EXPUNGEMENT FOR OTHER CRIMINAL RECORDS](https://minnesotalawreview.org/2023/03/21/keep-rolling-after-providing-automatic-expungement-for-certain-marijuana-offenses-minnesota-should-enact-automatic-expungement-for-other-criminal-records/) - By: Abby Ward, Volume 107 Staff Member The racially discriminatory impact from the War on Drugs is clear,[1] and while marijuana legalization is one step in addressing the inequities of America’s criminal justice system, the work does not end there. States should also enact broader expungement reforms. This 2023 session, Minnesota is likely going to lawreview - Minnesota Law Review - [CALIBRATING THE SCOPE OF DISCLOSURE: PREVIEWING THE SUPREME COURT’S OPPORTUNITY TO CLARIFY PATENT LAW’S ENABLEMENT STANDARD](https://minnesotalawreview.org/2023/03/20/calibrating-the-scope-of-disclosure-previewing-the-supreme-courts-opportunity-to-clarify-patent-laws-enablement-standard/) - By: Maxwell H. Terry, Volume 107 Staff Member While the technical subject matter of a patent can grow inordinately complex, the predominant theory underlying patent law is relatively straightforward. In exchange for the right to exclude others from making, using, or selling the invention claimed by a patent, the inventor must disclose the invention to lawreview - Minnesota Law Review - [THE MOST IMPORTANT DECISION NO ONE IS TALKING ABOUT: WHAT <em>CUMMINGS</em> MEANS FOR THE FUTURE OF CIVIL RIGHTS](https://minnesotalawreview.org/2023/02/27/the-most-important-decision-no-one-is-talking-about-what-cummings-means-for-the-future-of-civil-rights/) - By: Amy Cohen, Volume 107 Staff Member In what seems like a never-ending string of catastrophic rulings implicating our nation’s future and individual rights,[1] about ten months ago the Supreme Court laid down a major decision altering the availability of remedies for civil rights claimants that has largely gone unnoticed by the public. When petitioner lawreview - Minnesota Law Review - [LIFE-OR-DEATH LEGALESE: THE EXECUTION OF MATTHEW REEVES AND THE DIRE CONSEQUENCES OF POORLY TARGETED LEGAL DRAFTING](https://minnesotalawreview.org/2023/02/23/life-or-death-legalese-the-execution-of-matthew-reeves-and-the-dire-consequences-of-poorly-targeted-legal-drafting/) - By: Earl Lin, Volume 107 Staff Member It is a well-known phenomenon that lawyers often communicate in their own “peculiar language . . . characterized by antique jargon, pomposity, affected displays of precision, ponderous abstractions, and hocus-pocus incantations.”[1] Indeed, lawyers are so notorious for their clumsy writing that a whole cottage industry of gag gifts lawreview - Minnesota Law Review - [CONTRACTUAL CONUNDRUM: HOW <em>HEALTH AND HOSPITAL CORPORATION V. TALEVSKI</em> HAS THE POTENTIAL TO GUT FEDERAL SAFETY NET LEGISLATION](https://minnesotalawreview.org/2023/02/21/contractual-conundrum-how-health-and-hospital-corporation-v-talevski-has-the-potential-to-gut-federal-safety-net-legislation/) - By: Grace Worcester, Volume 107 Staff Member The Supreme Court recently heard oral arguments in Health and Hospital Corporation of Marion County v. Talevski,[1] a case with the potential to strip over eighty million Americans[2] of the ability to seek recourse in the federal courts for state civil rights violations. Talevski originated when the family lawreview - Minnesota Law Review - [NOT FLYING SOLO: HOW SOUTHWEST’S MASSIVE FLIGHT CANCELLATIONS LED TO SEVERAL CLASS ACTION LAWSUITS](https://minnesotalawreview.org/2023/02/20/not-flying-solo-how-southwests-massive-flight-cancellations-led-to-several-class-action-lawsuits/) - By: Kyra Honkanen, Volume 107 Staff Member I. BACKGROUND Making headlines across the country, Southwest Airlines, the largest domestic airline in the U.S.,[1] canceled over 15,000 of its flights leaving more than one million people[2] stranded or left to find alternative transportation during the peak of holiday travel in December 2022.[3] A blast of severe lawreview - Minnesota Law Review - [THE SUPREME COURT ‘DIGS’ <em> IN RE GRAND JURY</em>: ITS DECISION TO DISMISS THE CASE AND LEAVE ATTORNEY-CLIENT PRIVILEGE IN THE THREE-CIRCUIT BALANCE](https://minnesotalawreview.org/2023/02/17/the-supreme-court-digs-in-re-grand-jury-its-decision-to-dismiss-the-case-and-leave-attorney-client-privilege-in-the-three-circuit-balance/) - By: E. Isabel Park, Volume 107 Staff Member After the Supreme Court heard oral arguments in In re Grand Jury[1] on January 9, 2023, all that remained was for the Court to decide the case.[2] Instead, two weeks later, the Court dismissed the case as “improvidently granted.” This left unresolved a three-way circuit split on lawreview - Minnesota Law Review - [A RACE-SYMPATHETIC PATH FORWARD: FOURTH AMENDMENT SEIZURE LAW AND THE CIRCUIT SPLIT ON THE RELEVANCE OF RACE](https://minnesotalawreview.org/2023/02/14/a-race-sympathetic-path-forward-fourth-amendment-seizure-law-and-the-circuit-split-on-the-relevance-of-race/) - By: Marina Berardino, Volume 107 Staff Member Despite it being well known that an individual’s race impacts his or her perceptions of and experiences with the police,[1] U.S. Supreme Court jurisprudence remains unclear on the role of race in Fourth Amendment seizure inquiries. Fourth Amendment case law is riddled with confusion, oftentimes through the Supreme lawreview - Minnesota Law Review - [THE “MAJOR QUESTIONS” SHACKLES: PREDICTING THE OUTCOME OF <em>DEPARTMENT OF EDUCATION v. BROWN</em> AND A WARNING ON THE POTENTIAL CONSEQUENCES OF A CONSTRAINED ADMINISTRATIVE STATE ](https://minnesotalawreview.org/2023/02/09/the-major-questions-shackles-predicting-the-outcome-of-department-of-education-v-brown-and-a-warning-on-the-potential-consequences-of-a-constrained-administrative-state/) - By: James Carlton, Volume 107 Staff Member On February 28th, the Supreme Court will hear arguments in two cases that will decide the constitutionality of President Biden’s student loan forgiveness program: Department of Education v. Brown and Biden v. Nebraska.[1] While the immediate ramifications of the Court’s decisions will be felt most directly by middle- lawreview - Minnesota Law Review - [OBJECTIVELY REASONABLE FRAUD?: THE SUPREME COURT’S UPCOMING FCA DECISION WILL RESOLVE CIRCUIT SPLIT OVER SCIENTER ELEMENT](https://minnesotalawreview.org/2023/02/06/objectively-reasonable-fraud-the-supreme-courts-upcoming-fca-decision-will-resolve-circuit-split-over-scienter-element/) - By: Carly Heying, Volume 107 Staff Member On January 13, 2023, after urging by the U.S. Solicitor General and Senator Chuck Grassley (R-Iowa),[1] the Supreme Court agreed to take up a pair of consolidated False Claims Act cases addressing “whether and when a defendant’s contemporaneous subjective understanding or beliefs about the lawfulness of its conduct lawreview - Minnesota Law Review - [NO REASSURANCE FROM INSURANCE: INSURANCE COMPANIES ARE TRYING TO AVOID BIPA LITIGATION BY USING ROBUST EXCLUSION CLAUSES AND COURTS ARE UNIMPRESSED](https://minnesotalawreview.org/2022/10/25/no-reassurance-from-insurance-insurance-companies-are-trying-to-avoid-bipa-litigation-by-using-robust-exclusion-clauses-and-courts-are-unimpressed/) - By: Katherine Vu, Volume 107 Staff Member Insurance companies are the new plaintiffs taking center stage in recent litigation under the Illinois Biometric Information Privacy Act (BIPA).[1] Enacted in 2008, BIPA aims to protect individuals by regulating the collection and dissemination of their biometric data by private entities.[2] BIPA also includes a private right of lawreview - Minnesota Law Review - [HOLLOW STATEMENT OR EMPTY PROMISE: OREGON’S “RIGHT TO HEALTHCARE” AMENDMENT IS NOT EQUIPPED TO ACHIEVE ITS GOALS, WHATEVER THEY ARE](https://minnesotalawreview.org/2022/11/30/hollow-statement-or-empty-promise-oregons-right-to-healthcare-amendment-is-not-equipped-to-achieve-its-goals-whatever-they-are/) - By: Patrick Ebeling, Volume 107 Staff Member In the November 8, 2022, election, Oregon voters narrowly approved Senate Joint Resolution 12 (SJR 12), the Right to Healthcare Amendment.[1] SJR 12 amends the Oregon state constitution to read: (1) It is the obligation of the state to ensure that every resident of Oregon has access to lawreview - Minnesota Law Review - [BACK FOR SECONDS: PREDICTING THE OUTCOME OF <em>UNITED STATES v. TEXAS</em> BASED ON <em>BIDEN v. TEXAS</em>](https://minnesotalawreview.org/2022/12/01/back-for-seconds-predicting-the-outcome-of-united-states-v-texas-based-on-biden-v-texas/) - By: Maya Wells Hermerding, Volume 107 Staff Member In its second major immigration-related case of the term, the Supreme Court will weigh the executive branch’s authority to regulate immigration policy as conservative states contend that the Biden administration’s policies put them at a disadvantage.[1] In July 2022, the Supreme Court granted certiorari in United States lawreview - Minnesota Law Review - [THE TRY GUYS TRY RESPONDING TO A RELATIONSHIP AT WORK: THE LEGAL IMPLICATIONS OF CONSENSUAL WORKPLACE RELATIONSHIPS](https://minnesotalawreview.org/2022/12/02/the-try-guys-try-responding-to-a-relationship-at-work-the-legal-implications-of-consensual-workplace-relationships/) - By: Mollie Clark Ahsan, Volume 107 Staff Member Over the past few months, famous YouTube creators The Try Guys have navigated a worldwide scandal surrounding one of the co-owners of their media company.[1] The scandal highlights the legal ambiguity that exists when workplace relationships take place between a supervisor and subordinate, even when relationships are lawreview - Minnesota Law Review - [COVERED BY CANNABIS?: MINNESOTA SUPREME COURT RULES THAT WORKERS’ COMPENSATION WILL NOT COVER MEDICAL MARIJUANA](https://minnesotalawreview.org/2022/12/06/covered-by-cannabis-minnesota-supreme-court-rules-that-workers-compensation-will-not-cover-medical-marijuana/) - By: Chelsea M. Trudgeon, Volume 107 Staff Member I. MINNESOTA SUPREME COURT RULINGS In October 2021, the Minnesota Supreme Court issued decisions in Musta v. Mendota Heights Dental Center[1] and Bierbach v. Digger’s Polaris[2] addressing reimbursement of medical marijuana under workers’ compensation claims.[3] Under the Minnesota Workers’ Compensation Act, an employer is liable for an lawreview - Minnesota Law Review - [READING TO BECOME A DIFFERENT TYPE OF “PRACTICE-READY” LAWYER: WHAT NO MORE POLICE CAN TEACH LAW STUDENTS ABOUT THEIR ROLE IN THE MOVEMENT FOR PRISON-INDUSTRIAL-COMPLEX ABOLITION](https://minnesotalawreview.org/2023/01/13/reading-to-become-a-different-type-of-practice-ready-lawyer-what-no-more-police-can-teach-law-students-about-their-role-in-the-movement-for-prison-industrial-complex-abolition/) - By: Lucy Chin, Volume 107 Staff Member A small minority of the 1.3 million lawyers in the country engage in work that explicitly concerns community-based advocacy and movement lawyering.[1] And yet, our profession—like most in the past few years—has been unable to avoid confronting fundamental questions about our role in social justice movements.[2] In the lawreview - Minnesota Law Review - [NOVEL REGULATIONS AND HISTORICAL ANALOGUES: A SAN JOSÉ ORDINANCE TESTS THE BOUNDARIES OF THE SECOND AMENDMENT](https://minnesotalawreview.org/2023/01/09/novel-regulations-and-historial-analogues-a-san-jose-ordinance-tests-the-boundaries-of-the-second-amendment/) - By: Toph Beach, Volume 107 Staff Member On June 23, 2022, the Supreme Court decided New York State Rifle & Pistol Association v. Bruen, striking down a New York firearm restriction and pioneering a new test for Second Amendment cases.[1] Under Bruen, gun regulations must be “consistent with this Nation’s historical tradition of firearm regulation.”[2] lawreview - Minnesota Law Review - [A $9 BILLION SURPLUS, YET “KIDS CAN’T READ”: MINNESOTA TEACHER STRIKES MAY VIOLATE STUDENTS’ RIGHTS UNDER THE STATE CONSTITUTION AND THE LEGISLATURE HAS A DUTY TO FIX IT](https://minnesotalawreview.org/2022/03/24/a-9-billion-surplus-yet-kids-cant-read-minnesota-teacher-strikes-may-violate-students-rights-under-the-state-constitution-and-the-legislature-has-a-duty-to-fix-i/) - By: Joshua Gutzmann, Volume 106 Staff Member After almost a full week of no school for over 31,000 students,[1] because teachers are on strike in Minneapolis,[2] the Minneapolis Federation of Teachers President declared that they were “ready to go for as long as it takes.”[3] The strikes—authorized by a vote of over 97% in favor[4]—are - [HOW COMPELLING DOES COMPELLING HAVE TO BE?: A MISSED OPPORTUNITY TO REFRAME A COMPELLING GOVERNMENTAL INTEREST IN AFFIRMATIVE ACTION IN THE <em>STUDENTS FOR FAIR ADMISSIONS</em> CASES](https://minnesotalawreview.org/2022/11/03/how-compelling-does-compelling-have-to-be-a-missed-opportunity-to-reframe-a-compelling-governmental-interest-in-affirmative-action-in-the-students-for-fair-admissions-cases/) - By: Chad Nowlan, Volume 107 Staff Member This fall the Supreme Court heard oral arguments in two cases brought by Students for Fair Admissions (SFFA), a self-described “nonprofit membership group of . . . students, parents, and others who believe that racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional.”[1] The two lawreview - Minnesota Law Review - [READY FOR LANDING: AFTER CONCLUDING “PILOT PROGRAM,” MINNESOTA’S ENVIRONMENTAL QUALITY BOARD DELIBERATES LONG AWAITED ENVIRONMENTAL REVIEW CLIMATE CONSIDERATION REQUIREMENTS](https://minnesotalawreview.org/2022/11/18/ready-for-landing-after-concluding-pilot-program-minnesotas-environmental-quality-board-deliberates-long-awaited-environmental-review-climate-consideration-requirements/) - By: Giuseppe Tumminello, Volume 107 Staff Member On October 19, 2022, the Minnesota Environmental Quality Board (EQB) hosted a public Environmental Review Implementation Subcommittee (ERIS) meeting. The ERIS reviewed the results from a Pilot Program it organized in order to incorporate climate change considerations on an updated EQB’s Environmental Assessment Worksheet (EAW) form.[1] Long in lawreview - Minnesota Law Review - [LEGAL LIMBO: THE STATE OF ABORTION CARE FOR MINORS IN MINNESOTA AFTER <em>DOE v. STATE OF MINNESOTA</em>](https://minnesotalawreview.org/2022/11/15/legal-limbo-the-state-of-abortion-care-for-minors-in-minnesota-after-doe-v-state-of-minnesota/) - By: Mary Fleming, Volume 107 Staff Member Even before Dobbs v. Jackson Women’s Health Organization brought abortion to center stage at the U.S. Supreme Court, Minnesota abortion law was being litigated in state court.[1] In May of 2019, two advocacy organizations, the Lawyering Project and Gender Justice, filed a complaint in the Second Judicial District lawreview - Minnesota Law Review - [THE ONUS OF TRANSPARENCY: <em>STATE OF WASHINGTON v. META PLATFORMS, INC.</em> ILLUSTRATES THE FIGHT OVER REASONABLE CAMPAIGN FINANCE DISCLOSURE LAW AND FIRST AMENDMENT PROTECTED SPEECH VIOLATIONS](https://minnesotalawreview.org/2022/11/02/the-onus-of-transparency-state-of-washington-v-meta-platforms-inc-illustrates-the-fight-over-reasonable-campaign-finance-disclosure-law-and-first-amendment-protected-speech-violations/) - By: Lindsay Maher, Volume 107 Staff Member Campaign finance disclosure laws are being questioned and limited in states across the country. In many states, legislatures have passed laws to prevent future requests for disclosure to non-profit organizations that donate to political candidates or parties.[1] In others, disclosure laws already in place are being challenged.[2] The lawreview - Minnesota Law Review - [MIXED MESSAGING: PREVIEWING <em>303 CREATIVE</em> AND ITS PLACE IN CURRENT FREE SPEECH JURISPRUDENCE](https://minnesotalawreview.org/2022/11/01/mixed-messaging-previewing-303-creative-and-its-place-in-current-free-speech-jurisprudence/) - By: Samuel E. Ferguson, Volume 107 Staff Member This term, the Supreme Court of the United States will decide 303 Creative LLC v. Elenis.[1] The Court will decide whether a Colorado public accommodation law violates the Free Speech Clause of the First Amendment by compelling a website designer to speak or stay silent about her lawreview - Minnesota Law Review - [UN(PrEP)ARED: HOW <em>BRAIDWOOD v. BECERRA</em> COULD LEAVE PUBLIC HEALTH OFFICIALS SCRAMBLING](https://minnesotalawreview.org/2022/10/31/unprepared-how-braidwood-v-becerra-could-leave-public-health-officials-scrambling/) - By: Tyler Blackmon, Volume 107 Staff Member On September 7, 2022, a federal district court granted summary judgment to an employer who refused to cover an anti-HIV, pre-exposure prophylaxis drug (PrEP) because doing so would make that employer “complicit in facilitating homosexual behavior.”[1] The judge, Reed O’Connor (N.D. Tex.), previously tried to overturn the entire lawreview - Minnesota Law Review - [<em>CHAMBER OF COMMERCE FOR GREATER PHILADELPHIA v. CITY OF PHILADELPHIA</em>: UNSUPPORTED AS A MATTER OF FACT, UNJUSTIFIED AS A MATTER OF LAW](https://minnesotalawreview.org/2020/02/26/chamber-of-commerce-for-greater-philadelphia-v-city-of-philadelphia-unsupported-as-a-matter-of-fact-unjustified-as-a-matter-of-law/) - By: Nathan Webster, Volume 104 Staff Member The pay-gap between men and women in the United States is well-established. Hispanic women make 58 cents for every dollar a white man makes.[1] Black women make 67 cents for every dollar earned by a white man.[2] White women make 79 cents.[3] Such disparities also cut across genders, lawreview - Minnesota Law Review - [WHEN FINAL MEANS FINAL: AN OVERVIEW OF WHEN A CRIMINAL SENTENCE IS IMPOSED WITH THE FIRST STEP ACT](https://minnesotalawreview.org/2020/04/16/when-final-means-final-an-overview-of-when-a-criminal-sentence-is-imposed-with-the-first-step-act/) - By: Dan Otsuki, Volume 104 Staff Member Take a moment and consider you are watching a high-profile, maybe even celebrity criminal trial streaming online. Imagine further the jury, after months of listening to testimony and days of deliberating, comes back with a guilty verdict. We at home, riveted to our various screens, take a deep lawreview - Minnesota Law Review - [BUT I WANT TO BE FIRST: A COURT'S CURIOUS CHOICE OF REMEDY TO MINNESOTA'S CHALLENGED BALLOT ORDER STATUTE](https://minnesotalawreview.org/2020/12/21/but-i-want-to-be-first-a-courts-curious-choice-of-remedy-to-minnesotas-challenged-ballot-order-statute/) - By: Billy Price, Volume 105 Staffer Before a single general election ballot was cast, commentators were already referring to the 2020 election as “on track to the be the most litigated ever,”[1] thanks in large part to lawsuits concerning the complexities of voting during the COVID-19 pandemic.[2] Largely hidden by the drama of lawsuits concerning lawreview - Minnesota Law Review - [HARD LUXURY: MATERIAL ADVERSE EFFECT IN THE LVMH AND TIFFANY MERGER](https://minnesotalawreview.org/2022/05/10/hard-luxury-material-adverse-effect-in-the-lvmh-and-tiffany-merger/) - By: Rachel Wynn, Business Law Clinic Student Director & Emily Buchholz, Executive Director of the Corporate Institute Since the COVID-19 pandemic, material adverse effect claims have increased in Delaware courts. A material adverse effect (“MAE”) is a change in circumstances that is reasonably expected to significantly diminish the value of a company. MAE clauses are - [STEALING FROM YOUR STUDENTS: THE HIDDEN KEY IN THE HIGHER EDUCATION ACT TO HOLD LEADERS OF FOR-PROFIT COLLEGES PERSONALLY LIABLE FOR FRAUD](https://minnesotalawreview.org/2022/04/06/stealing-from-your-students-the-hidden-key-in-the-higher-education-act-to-hold-leaders-of-for-profit-colleges-personally-liable-for-fraud/) - By: Kylee Evans, Volume 106 Staff Member Student debt in the United States has hit a historic high.[1] The estimated total student loan debt as of March 2022 is $1.749 trillion.[2] Of that, the federal government owns about $1.61 trillion.[3] Legal scholars have long compared this debt to the mortgage bubble that led to the - [MEANINGFUL BUT NOT PERFECT REVIEW: IMPLIED PRECLUSION OF FEDERAL JURISDICTION AND <em>AXON ENTERPRISE, INC. V. FTC</em>](https://minnesotalawreview.org/2022/04/04/meaningful-but-not-perfect-review-implied-preclusion-of-federal-jurisdiction-and-axon-enterprise-inc-v-ftc/) - By: Jason Gutierrez, Vol. 106 Staff Member I. BACKGROUND, DOCTRINE, AND AXON’S ARGUMENT May a party arguing that the structure of the Federal Trade Commission (FTC) violates the constitution bypass the FTC’s administrative review process and bring suit in federal court? Last summer, Axon Enterprise, Inc. presented this question to the United States Supreme Court - [COPPER-NICKEL MINING AND THE MINNESOTA DEPARTMENT OF NATURAL RESOURCES’ DUAL MANDATE: HOW TO ENSURE ENVIRONMENTAL CONSEQUENCES IN THE INDUSTRY CAN BE ALLEVIATED](https://minnesotalawreview.org/2022/04/01/copper-nickel-mining-and-the-minnesota-department-of-natural-resources-dual-mandate-how-to-ensure-environmental-consequences-in-the-industry-can-be-alleviated/) - By: Ben Gleekel, Vol. 106 Staff Member Northeast Minnesota may soon host an industrialized corridor of copper-nickel mining operations. The region is the home of the Duluth Complex—a geological formation containing an estimated 4.4 billion tons of copper, nickel, and other precious metals,[1] making it one of the largest untapped copper deposits in the world.[2] - [SCOTUS TAKES ON WOTUS: PREVIEWING <em>SACKETT V. EPA</em> AND ITS CONSEQUENCES FOR THE CLEAN WATER ACT](https://minnesotalawreview.org/2022/03/30/scotus-takes-on-wotus-previewing-sackett-v-epa-and-its-consequences-for-the-clean-water-act/) - By: Sean Downey, Volume 106 Staff Member With its grant of certiorari in Sackett v. EPA, the Supreme Court will take its fourth try at resolving a question that has vexed courts, agencies, lawyers, and landowners: what are “Waters of the United States (WOTUS)?”[1] The Clean Water Act (CWA) prohibits the discharge of pollutants into - [REMEDYING DECADES OF DISPARITIES IN DRUG SENTENCING: HOW <em>CONCEPCION v. UNITED STATES</em> OPENS THE DOOR FOR BROADER RELIEF IN FIRST STEP ACT RESENTENCING PROCEEDINGS](https://minnesotalawreview.org/2022/03/23/remedying-decades-of-disparities-in-drug-sentencing-how-concepcion-v-united-states-opens-the-door-for-broader-relief-in-first-step-act-resentencing-proceedings/) - By: Rhianna Torgerud, Volume 106 Staff Member From 1986 to 2010, one gram of crack cocaine was treated as equivalent to 100 grams of powder cocaine when setting federal statutory minimum and maximum sentences.[1] This 100-to-1 sentencing disparity was widely criticized as discriminatory against African Americans, and other minorities, who are more likely to be - [THE UNITED STATES WANTED TO HAVE ITS CAKE, EAT IT, AND AVOID ITS CLEANUP COSTS, TOO](https://minnesotalawreview.org/2022/03/22/the-united-states-wanted-to-have-its-cake-eat-it-and-avoid-its-cleanup-costs-too/) - By: Olivia Carroll, Volume 106 Staff Member In 2017, the Territory of Guam brought suit against the United States under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), seeking to recover costs spent on the cleanup of a contaminated site that had been previously used for hazardous waste disposal by the U.S. - [THE SUPREME COURT DILUTES MINORITY VOTER RIGHTS: THE FATE OF THE VOTER RIGHTS ACT FOLLOWING <em>MERRILL V. MILLIGAN</em>](https://minnesotalawreview.org/2022/03/16/the-supreme-court-dilutes-minority-voter-rights-the-fate-of-the-voter-rights-act-following/) - By: Justin Oakland, Volume 106 Staff Member Following the 2020 census, a Republican-majority Alabama state legislature voted to redraw congressional districts to functionally dilute the voting power of Black residents.[1] Despite Black voters making up 26.8 percent of Alabama’s population, the redrawn districts only grant Black voters one district of significant representation with the remaining - [WAR POWERS UNDER ATTACK](https://minnesotalawreview.org/2022/03/21/war-powers-under-attack/) - By: Jesse Noltimier, Volume 106 Staff Member On March 29, 2022, the Supreme Court will hear oral arguments in Torres v. Texas Department of Public Safety.[1] The Court will decide whether a veteran can sue the state of Texas, his former employer, for discrimination. Beyond this employment discrimination claim, Torres raises important questions concerning Congress’ - [RUSSIAN WARFARE: NEW JERSEY COURT HOLDS RUSSIAN-SPONSORED CYBERATTACK NOTPETYA IS NOT PART OF WAR EXCLUSION FOR ALL-RISK INSURANCE POLICY, AND ILLINOIS MIGHT SOON FOLLOW](https://minnesotalawreview.org/2022/03/08/russian-warfare-new-jersey-court-holds-russian-sponsored-cyberattack-notpetya-is-not-part-of-war-exclusion-for-all-risk-insurance-policy-and-illinois-might-soon-follow/) - By: Caleb Johnson, Volume 106 Staff Member On December 6th, 2021, a New Jersey Superior Court announced in Merck & Co., Inc. v. Ace American Insurance Company that insurance companies could not use a hostilities/war exclusion to deny coverage to biopharmaceutical company Merck’s claim after falling victim to the NotPetya cyberattack.[1] The court focused its - [REMEDYING DISCRIMINATION IN AGRICULTURAL LENDING: ANALYZING THE LEGAL CHALLENGES FACING THE EMERGENCY RELIEF FOR FARMERS OF COLOR ACT](https://minnesotalawreview.org/2022/03/07/remedying-discrimination-in-agricultural-lending-analyzing-the-legal-challenges-facing-the-emergency-relief-for-farmers-of-color-act/) - By: Jackie Cuellar, Volume 106 Staff Member To alleviate the impact of the COVID-19 pandemic on the United States’ economy, Congress passed the American Rescue Plan Act of 2021 (ARPA).[1] Section 1005 of the ARPA, also referred to as the Emergency Relief for Farmers of Color Act, is a historic provision that allocates $4 billion - [DON’T FALL ASLEEP AT THE WHEEL: DELAWARE BOARDS SHOULD BE ON THE LOOKOUT FOR ESG OVERSIGHT LIABILITY](https://minnesotalawreview.org/2022/03/03/dont-fall-asleep-at-the-wheel-delaware-boards-should-be-on-the-lookout-for-esg-oversight-liability/) - By: Nick Penn, Volume 106 Staff Member In 2019, the Supreme Court of Delaware put the boardrooms of Delaware corporations on notice with its denial of Blue Bell Creameries’ motion to dismiss a shareholder derivative suit for breach of the board’s duty of oversight.[1] The duty of oversight, a subsidiary of the duty of loyalty, - [SOVEREIGN CITIZENS: SITTING ON THE DOCKET ALL DAY, WASTING TIME](https://minnesotalawreview.org/2022/03/02/sovereign-citizens-sitting-on-the-docket-all-day-wasting-time/) - By: Calvin Lee, Volume 106 Staff Member Sovereign Citizens: a riddle, wrapped in a mystery, inside an enigma. The once-isolated political sect has ballooned to over 300,000 followers, and the rapid proliferation of their pseudo-legal ideologies is severely compromising court efficiency.[1] Sovereign Citizens’ abject refusal to stipulate to even the most basic tenets of the - [THE FINAL WHISTLE FOR AMATEURISM: NCAA AND ANTITRUST](https://minnesotalawreview.org/2022/03/01/the-final-whistle-for-amateurism-ncaa-and-antitrust/) - By: Adler Pierce, Volume 106 Staff Member An amateur, as defined by the National Collegiate Athletic Association (NCAA), “is someone who does not have a written or verbal agreement with an agent, has not profited above his/her actual and necessary expenses or gained a competitive advantage in his/her sport.”[1] The concept of “amateurism” has been - [A HARD PILL TO SWALLOW: PURDUE PHARMA AND THE FUTURE OF THIRD-PARTY RELEASES IN BANKRUPTCY COURT](https://minnesotalawreview.org/2022/02/28/a-hard-pill-to-swallow-purdue-pharma-and-the-future-of-third-party-releases-in-bankruptcy-court/) - By: Marine Loison, Volume 106 Staff Member I. INTRODUCTION The Sackler name has been synonymous with the opioid crisis in the United States. Now, it has also become a household name in Bankruptcy Court.[1] On December 16th, 2021, Judge McMahon answered the “great unsettled question” of Bankruptcy Court’s statutory authorization by granting non-consensual release of third-party - [EXEMPTING THE FAMILY BIBLE: WITH LIBERTY AND JUSTICE FOR ALL (VALUES AND RELIGIOUS TEXTS)?](https://minnesotalawreview.org/2022/02/23/exempting-the-family-bible-with-liberty-and-justice-for-all-values-and-religious-texts/) - By: Kaylyn Stanek, Volume 106 Staff Member A primary justification for the U.S. consumer bankruptcy system is giving debtors a fresh start.[1] Although one might assume an individual must exchange all of their assets in exchange for moving forward, this is not true. The Bankruptcy Code[2] and Minnesota law[3] provide “exemptions” that curb a creditor’s - [A PUBLIC HEALTH EMERGENCY SHOULD NOT BE ABUSED: <em> HUISHA-HUISHA v. ALEJANDRO MAYORKAS </em> SHOWS THE ILLEGALITY OF TITLE 42 POLICY](https://minnesotalawreview.org/2022/02/22/a-public-health-emergency-should-not-be-abused-huisha-huisha-v-alejandro-mayorkas-shows-the-illegality-of-title-42-policy/) - By: Xiaoyuan Zhou, Volume 106 Staff Member On January 19, 2022, the Court of Appeals for the D.C. Circuit heard oral argument in Nancy Huisha-Huisha v. Alejandro Mayorkas.[1] The case is about whether the public health laws under 42 U.S.C. § 265, often referred to as the “Title 42 Policy,” grant the Center of Disease - [A KNIGHT’S REVOLT AGAINST THE CASTLE: ANSWERING THE BIPA CLAIM ACCRUAL QUESTION](https://minnesotalawreview.org/2022/02/21/a-knights-revolt-against-the-castle-answering-the-bipa-claim-accrual-question/) - By: Zach Robole, Volume 106 Staff Member The inability of our legislatures to keep up with the boom of Internet technology has forced a conversation about privacy to the forefront of American discourse.[1] Unfortunately, even when state or federal legislatures do attempt to regulate a new technology to protect privacy rights, their solutions often contain - [OMICRON V. OSHA: THE NEED FOR PERMANENT MEASURES TO HELP EMPLOYERS AND EMPLOYEES MANAGE THE PANDEMIC SAFELY](https://minnesotalawreview.org/2022/02/15/omicron-v-osha-the-need-for-permanent-measures-to-help-employers-and-employees-manage-the-pandemic-safely/) - By: Ayesha Mitha, Volume 106 Staff Member On January 13, 2022, the United States Supreme Court dealt a blow to the Occupational Safety and Health Administration’s (OSHA’s) Emergency Temporary Standard (ETS) for large employers. The decision put the ETS on hold indefinitely.[1] Among other things, the ETS mandated that all businesses with 100 or more - [CLIMATE V. THE COURT: HOW WEST VIRGINIA V. ENVIRONMENTAL PROTECTION AGENCY WILL IMPACT THE NEXT GENERATIONS](https://minnesotalawreview.org/2022/02/09/climate-v-the-court-how-west-virginia-v-environmental-protection-agency-will-impact-the-next-generations/) - By: Helen Winters, Volume 106 Staff Member This Supreme Court term has so many high-profile cases, ranging from abortion to gun rights to vaccines, that West Virginia v. Environmental Protection Agency has received little attention.[1] The number of landmark cases this term could make it one of the most consequential terms in history. West Virginia - [NO WORKING FORUMS: HOW THE SUPREME COURT SHOULD RULE IN VIKING RIVER CRUISES, INC. v. MORIANA TO PROTECT EMPLOYEE RIGHTS](https://minnesotalawreview.org/2022/02/08/no-working-forums-how-the-supreme-court-should-rule-in-viking-river-cruises-inc-v-moriana-to-protect-employee-rights/) - By: Ben Parker, Volume 106 Staff Member Employers and employees have had a tumultuous relationship over the course of recent American history.[1] One change was the rise in arbitration after the passage of the Federal Arbitration Act (FAA) in 1926. The FAA permits employees and employers to use arbitration to resolve controversies when an employee - [IT’S THE ONES YOU LEAST EXPECT: COLORADO AND CALIFORNIA LAG BEHIND IN PROTECTING EMPLOYEES’ OFF-DUTY MEDICAL MARIJUANA USE](https://minnesotalawreview.org/2022/02/07/its-the-ones-you-least-expect-colorado-and-california-lag-behind-in-protecting-employees-off-duty-medical-marijuana-use/) - By: Andrew Eggers, Volume 106 Staff Member In 2021, both New York[1] and New Jersey[2] joined the growing number of states which offer employment protections for workers engaging in legal, off-duty medical marijuana consumption. Conspicuously, two pioneering states of legal marijuana use—Colorado and California—remain absent from the list of states offering employment protections to employees - [BAD INFLUENCES: WEIGHING SEPARATION OF POWERS PRINCIPLES AGAINST CALLS FOR TRANSPARENCY FOLLOWING "LAPSES" IN JUDICIAL ETHICS](https://minnesotalawreview.org/2022/02/04/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 Chief Justice specifically addressed recent Wall Street Journal (“Journal”) reporting - [BIDEN’S EMERGENCY RULE RAISES FUNDAMENTAL POLICY ISSUES REGARDING THE ADMINISTRATIVE STATE AND ITS EXPANSIVE POLICYMAKING ROLE](https://minnesotalawreview.org/2022/01/11/bidens-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 years, Covid-19 has ravaged the world, infecting over 290 million - [MINNESOTA DNR’S SEPT. 16, 2021 LINE 3 ENFORCEMENT ACTION DEMONSTRATES HOW MUCH GROUNDWATER PERMITTING “SUCKS”](https://minnesotalawreview.org/2021/12/06/minnesota-dnrs-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 of Natural Resources (“DNR”) issued a civil enforcement action against - [#FREEBRITNEY: BRINGING ATTENTION TO A "TOXIC" SYSTEM OF CONSERVATORSHIP](https://minnesotalawreview.org/2021/12/03/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 left the 27-year-old pop star in financial debt and public - [TAXING BILLIONAIRES AND THE CONUNDRUM OF CONSTITUTIONAL INCOME](https://minnesotalawreview.org/2021/12/01/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 the United States collected in tax revenue in 2021.[4] It - [ROE V. A TECHNICALITY: HOW PROCEDURAL DECISIONS WILL BRING ABOUT THE END TO CONSTITUTIONALLY PROTECTED ABORTION RIGHTS](https://minnesotalawreview.org/2021/11/29/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 abortion should be legal in all or most pregnancies, and - [ROE AND CASEY UNDER ATTACK: WILL THE SUPREME COURT OVERTURN LANDMARK ABORTION PRECEDENT IN DOBBS V. JACKSON WOMEN’S HEALTH ORGANIZATION?](https://minnesotalawreview.org/2021/11/26/roe-and-casey-under-attack-will-the-supreme-court-overturn-landmark-abortion-precedent-in-dobbs-v-jackson-womens-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 Mississippi law that prohibits nearly all abortions after fifteen weeks - [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).](https://minnesotalawreview.org/2021/11/24/categorically-insufficient-the-u-s-supreme-court-must-find-attempted-hobbs-act-robbery-is-not-a-crime-of-violence-under-18-u-s-c-§-924c3a/) - 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 Supreme Court should find that it is not a crime - [LOCKED, LOADED, AND CONCEALED—THE SUPREME COURT'S FIRST GUN RIGHTS CASE IN A DECADE](https://minnesotalawreview.org/2021/11/22/locked-loaded-and-concealed-the-supreme-courts-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 license.[2] As license issuance is left to the discretion - [THE CANINE MAGISTRATE: THE FOURTH AMENDMENT IMPLICATIONS OF WEAK ALERTS TO NARCOTICS IN VEHICLE SEARCHES](https://minnesotalawreview.org/2021/11/19/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, and other contraband items. In the context of vehicle searches - [GAME OF PHONES: THE IRS'S OUTDATED INFORMATION TECHNOLOGY IS CAUSING SERVICE AND LEGAL ISSUES FOR THE U.S. TAXPAYER](https://minnesotalawreview.org/2021/11/17/game-of-phones-the-irss-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 for the third time in one day. My experience is - [ICWA'S "ACTIVE EFFORTS" STANDARD DURING THE COVID-19 PANDEMIC](https://minnesotalawreview.org/2021/11/15/icwas-active-efforts-standard-during-the-covid-19-pandemic/) - By: Molly Nelson-Regan, Volume 106 Staff Member[1] Congress enacted the Indian Child Welfare Act of 1978[2] (ICWA) out of concern for the “abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes.”[3] ICWA offers the “gold standard” for family reunification in the landscape of child welfare.[4] - [CURTAILING INTERNET EXCEPTIONALISM: FRANCES HAUGEN'S CALL TO AMEND SECTION 230 AND HOLD FACEBOOK ACCOUNTABLE FOR ITS ALGORITHMIC HARM](https://minnesotalawreview.org/2021/11/11/curtailing-internet-exceptionalism-frances-haugens-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, Haugen showed the public that Facebook knows a lot about - [CAN A NON-SECRET BE A STATE SECRET? EXAMINING STATE SECRETS PRIVILEGE IN UNITED STATES V. ZUBAYDAH](https://minnesotalawreview.org/2021/11/03/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 of the CIA’s “enhanced interrogation” program in 2002.[2] From December - [RISING TO THREE OCCASIONS: THE SUPREME COURT GRAPPLES WITH HOW TO COUNT PRIOR CONVICTIONS IN THE ACCA CONTEXT](https://minnesotalawreview.org/2021/11/01/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 for the rest of the normal time span of his - [FILMING POLICE IN THE WAKE OF GEORGE FLOYD'S MURDER: A FIRST AMENDMENT RIGHT?](https://minnesotalawreview.org/2021/10/22/filming-police-in-the-wake-of-george-floyds-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 smartphone.[1] The increasing public focus on police brutality[2] has contributed - [TWIST IT, PULL IT, BOT IT: DEVUMI, BOTS, AND THE END OF THE FTC’S POLITICAL NEUTRALITY](https://minnesotalawreview.org/2021/02/01/twist-it-pull-it-bot-it-devumi-bots-and-the-end-of-the-ftcs-political-neutrality/) - By: Lee Silberberg, Vol. 105 Staffer The FTC has broad authority under § 5(a) of the Federal Trade Commission Act to protect consumers from, “unfair or deceptive acts or practices in or affecting commerce[.]”[1] Under this grant of power, the FTC has the broad power to enforce against deceptive acts in a variety of fora lawreview - Minnesota Law Review - [Volume 105 Headnotes: Spring Issue](https://minnesotalawreview.org/2021/07/17/volume-105-headnotes-spring-issue/) - Entrenched Racial Hierarchy: Educational Inequality from the Cradle to the LSAT By Kevin Woodson Full article here. An Overlooked Dimension to OIRA Review of Tax Regulatory Actions By Kristin E. Hickman Full essay here. The Rule of Reason as a Discovery Procedure: A Response to Ramsi Woodcock’s Hidden Rules of a Modern Antitrust By Geoffrey A. - [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](https://minnesotalawreview.org/2021/05/14/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/) - Minnesota Law Review May - [WHAT’S SO DEPRAVED? ANALYZING THIRD-DEGREE DEPRAVED-MIND MURDER IN MINNESOTA AFTER THE CHAUVIN AND NOOR TRIALS](https://minnesotalawreview.org/2021/05/12/whats-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 unique quirks of Minnesota precedent, there is a meaningful chance lawreview - Minnesota Law Review - [HATE IS A VIRUS: RECENT SURGE IN ANTI-ASIAN HATE CRIMES AND THE SUFFICIENCY OF THE CURRENT HATE CRIME LAWS](https://minnesotalawreview.org/2021/05/10/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. has been witnessing a surge of harassment and violence against lawreview - Minnesota Law Review - [WALQUIST HARMS THE POOR: REVISITING SUPERVISORY APPROVAL FOR ACCURACY PENALTIES](https://minnesotalawreview.org/2021/05/07/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 a taxpayer files a return with incorrect information, the IRS lawreview - Minnesota Law Review - [CONSIDERATIONS FOR MINNESOTA AGRICULTURE COOPERATIVES](https://minnesotalawreview.org/2021/05/06/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. and Land O’Lakes, Inc.[2] While these top revenue-producing agriculture cooperatives lawreview - Minnesota Law Review - [COVID-19 IN CORRECTIONAL FACILITIES: EIGHTH AMENDMENT VIOLATIONS AND WHY VACCINE PRIORITY IS A NECESSARY IMMEDIATE REMEDY](https://minnesotalawreview.org/2021/05/03/covid-19-in-correctional-facilities-eighth-amendment-violations-and-why-vaccine-priority-is-a-necessary-immediate-remedy/) - By Avery Katz, Vol. 105 Staff Member With the COVID-19 vaccine becoming more readily accessible, it is critical that society’s most vulnerable populations are accounted for as the world moves towards normalcy. The prison population must not be ignored. Despite holding some of the most vulnerable populations, the health and safety of people in prisons lawreview - Minnesota Law Review - [PAYCHECK PROTECTION DISCRIMINATION: DENIAL OF LOANS TO SEX-RELATED BUSINESSES IS A DANGEROUS EXPANSION OF GOVERNMENT SPEECH](https://minnesotalawreview.org/2021/04/30/paycheck-protection-discrimination-denial-of-loans-to-sex-related-businesses-is-a-dangerous-expansion-of-government-speech/) - By: Kelly Zech, Volume 105 Staff Member In March 2020, to combat the spread of the COVID-19 pandemic, government orders resulted in a sudden and unprecedented nationwide business shutdown. At the same time, Congress passed the historic Coronavirus Aid, Relief, and Economic Security (CARES) Act.[1] A provision of the CARES Act entitled “Keeping American Workers lawreview - Minnesota Law Review - [RETURN TO SENDER: FOWLER V. COMMISSIONER’S APPLICABILITY TO LATE FILING AND PAYMENT PENALTIES](https://minnesotalawreview.org/2021/04/28/return-to-sender-fowler-v-commissioners-applicability-to-late-filing-and-payment-penalties/) - By: Matthew Thom, Volume 105 Staff Member INTRODUCTION Most Americans file their taxes at the last minute.[1] This year, that late filing is especially understandable: the COVID-19 pandemic produced a great deal of economic uncertainty for many Americans. In the aftermath of a financially complicated year, filing taxes online or with the help of a lawreview - Minnesota Law Review - [SPAC-TACULAR TIMES: 2020 SAW AN EXPLOSION OF SPACS IN THE MARKET, BUT WILL THIS MULTI-BILLION DOLLAR TREND CONTINUE?](https://minnesotalawreview.org/2021/04/26/spac-tacular-times-2020-saw-an-explosion-of-spacs-in-the-market-but-will-this-multi-billion-dollar-trend-continue/) - By: Ali Muffenbier, Volume 105 Staff Member As we have all heard more than we would have liked, 2020 was the year of “unprecedented times,”[1] and one unprecedented activity that rocked the finance world was the explosion of the number of Special Purpose Acquisition Companies (“SPAC”), also known as Blank Check companies, to hit the lawreview - Minnesota Law Review - [DRAMATIC FACTS AND DRAMATIC IMPLICATIONS: SHOULD THE COMMUNITY CARETAKER EXCEPTION EXTEND TO THE HOME?](https://minnesotalawreview.org/2021/04/22/dramatic-facts-and-dramatic-implications-should-the-community-caretaker-exception-extend-to-the-home/) - By: R. Willets Ely, Volume 105 Staff Member The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and that “no Warrants shall issue, but upon probable cause.”[1] The Supreme Court has interpreted the Fourth Amendment to generally require a warrant lawreview - Minnesota Law Review - [POLICE ACCOUNTABILITY: IS REPEALING QUALIFIED IMMUNITY THE RIGHT ANSWER AND IS IT ENOUGH?](https://minnesotalawreview.org/2021/04/20/police-accountability-is-repealing-qualified-immunity-the-right-answer-and-is-it-enough/) - By: Mary Haasl, Volume 105 Staff Member As the trial of Derek Chauvin comes to an end,[1] Minneapolis and the nation brace for what is to come.[2] A viral recording of Chauvin’s actions this past summer,[3] which led to the horrific death of George Floyd, triggered a nationwide outcry against racial injustice and police brutality[4] lawreview - Minnesota Law Review - [NO SHELTER IN THIS PLACE: HOW THE COVID-19 PANDEMIC’S FRUSTRATION OF DOMESTIC VIOLENCE LEGAL PROCEEDINGS CAN GENERATE VICTIM-CENTERED REFORM](https://minnesotalawreview.org/2021/04/19/no-shelter-in-this-place-how-the-covid-19-pandemics-frustration-of-domestic-violence-legal-proceedings-can-generate-victim-centered-reform/) - By: Samantha Marquardt, Volume 105 Staff Member COVID-19 has given rise to what has been called a second “invisible” pandemic of domestic violence.[1] Stay-at-home orders, increased economic insecurity, and crisis-induced stress have all contributed to a surge of domestic violence cases around the world.[2] In the state of Minnesota, domestic violence shelter requests spiked shortly lawreview - Minnesota Law Review - [IT’S COLDER DAY BY DAY: ADOPTING A WINTER EVICTION MORATORIUM IN MINNESOTA](https://minnesotalawreview.org/2021/04/16/its-colder-day-by-day-adopting-a-winter-eviction-moratorium-in-minnesota/) - By Daniel Suitor, Volume 105 Staff Member, Volume 106 Lead Symposium Editor INTRODUCTION Missing your rent payment shouldn’t be a death sentence, but it could be in Minnesota. An eviction occurring during the coldest months of the winter could put a family out on the street in temperatures below 0°F.[1] This Post argues that the lawreview - Minnesota Law Review - [PEOPLE OVER PROFITS: HOW MINNESOTA TOOK ON BIG PHARMA TO TACKLE THE INSULIN AFFORDABILITY CRISIS](https://minnesotalawreview.org/2021/04/15/people-over-profits-how-minnesota-took-on-big-pharma-to-tackle-the-insulin-affordability-crisis/) - By: Hannah Oliason, Volume 105 Staff Member Every cell, tissue, and organ in your body depends on water to survive.[1] But imagine a scenario in which your water bill cost upwards of $300 per month. In addition, your water quality must be tested daily which costs you $200 per month. Lastly, to maintain the water lawreview - Minnesota Law Review - [ROBINHOOD’S GOAL IS NOT TO ‘DEMOCRATIZE FINANCE FOR ALL’: DON’T EXPECT GAMESTOP BUYERS’ LAWSUITS TO CHANGE THAT](https://minnesotalawreview.org/2021/04/13/robinhoods-goal-is-not-to-democratize-finance-for-all-dont-expect-gamestop-buyers-lawsuits-to-change-that/) - By: Daniel Raddenbach, Volume 105 Staff Member INTRODUCTION Robinhood, an investment app designed to make trading easy for small investors,[1] caught national attention in January when hordes of its users banded together to defeat hedge funds[2] who were actively profiting from the decline of the value of GameStop stock.[3] Robinhood’s decision to temporarily halt lawreview - Minnesota Law Review - [WHY DOES THE UNITED STATES FAIL TO ADDRESS THE GREEN SUKUK AS AN IDEAL VEHICLE FOR ENVIRONMENT-FORWARD PROJECTS?](https://minnesotalawreview.org/2021/03/31/why-does-the-united-states-fail-to-address-the-green-sukuk-as-an-ideal-vehicle-for-environment-forward-projects/) - By: Sarah Snebold, Volume 105 Staff Member Within a globalized economy, it would be foolish to turn a blind eye to Islamic finance and its respective market. Islamic finance presents the ability to tap into emerging markets within the Middle East, Africa and Asia.[1] Citigroup Inc. and Morgan Stanley profited by entering these markets, evidenced lawreview - Minnesota Law Review - [A GALAXY NOT SO FAR AWAY: THE STATES STRIKE BACK AT BIG TECH OVER GOOGLE AND FACEBOOK’S ALLEGED “JEDI BLUE” PRICE-FIXING SCHEME](https://minnesotalawreview.org/2021/03/29/a-galaxy-not-so-far-away-the-states-strike-back-at-big-tech-over-google-and-facebooks-alleged-jedi-blue-price-fixing-scheme/) - By: Avery Bennett, Volume 105 Staff Member INTRODUCTION Recently, mounting scrutiny and criticism of technology companies’ business practices have led to well publicized calls for investigations and probes into potentially anticompetitive behavior.[1] Amid these calls to curb the industry’s power, state officials have revealed a coordinated effort to contain anticompetitive practices by technology companies,[2] particularly lawreview - Minnesota Law Review - [PRESERVING THE E-MARKET OF IDEAS: HOW A NARROW “RIGHT TO BE FORGOTTEN” EXCEPTION TO SECTION 230 CAN COMBAT DIGITAL HARASSMENT WITHOUT DECIMATING DIGITAL DISCOURSE](https://minnesotalawreview.org/2021/03/25/preserving-the-e-market-of-ideas-how-a-narrow-right-to-be-forgotten-exception-to-section-230-can-combat-digital-harassment-without-decimating-digital-discourse/) - By: Jordan Francis, Volume 105 Staff Member Depending on who you ask, we have either handed the levers of public discourse over to the maleficent interests of “Big Tech,” thereby making the Mark Zuckerbergs of the world the arbiters of truth and justice, or we have abandoned all control and given misinformation and hate speech lawreview - Minnesota Law Review - [PATENT PLEDGING PROBLEMS: THE OPEN COVID PLEDGE AND LONG-TERM SOLUTIONS TO LICENSING INTELLECTUAL PROPERTY IN GLOBAL EMERGENCIES](https://minnesotalawreview.org/2021/03/23/patent-pledging-problems-the-open-covid-pledge-and-long-term-solutions-to-licensing-intellectual-property-in-global-emergencies/) - By: Marra Clay, Volume 105 Staff Member The American intellectual property system has a single primary goal: to encourage creators to make new things that benefit society in exchange for an exclusive right to use and license the creation for a limited time.[1] The United States government currently lacks authority to mandate most intellectual property lawreview - Minnesota Law Review - [A POLL TAX BY ANY OTHER NAME: HOW THE ELEVENTH CIRCUIT ERRED IN UPHOLDING FLORIDA’S PAY-TO-VOTE REQUIREMENT AND WHAT COMES NEXT](https://minnesotalawreview.org/2021/03/17/a-poll-tax-by-any-other-name-how-the-eleventh-circuit-erred-in-upholding-floridas-pay-to-vote-requirement-and-what-comes-next/) - By: Dina Kostrow, Volume 105 Staff Member Until recently, Florida was one of only a few states in which citizens convicted of a felony permanently lost the right to vote.[1] In 2018, it looked like the tide was turning. A 64.55% super-majority of Florida voters approved Amendment 4, which restored the right to vote for lawreview - Minnesota Law Review - [CRUEL AND UNUSUAL: THE SUPREME COURT'S FAILURE TO PROTECT DEATH ROW PRISONERS DURING THE GOVERNMENT'S RECENT RUSH OF EXECUTIONS](https://minnesotalawreview.org/2021/03/15/cruel-and-unusual-the-supreme-courts-failure-to-protect-death-row-prisoners-during-the-governments-recent-rush-of-executions/) - By: Julia Potach, Volume 105 Staff Member On July 14, 2020, the federal government executed death row prisoner, Daniel Lewis Lee, and carried out its first federal execution in 17 years.[1] One year earlier, former Attorney General William Barr cleared the way for the government to resume executions when he directed the Federal Bureau of lawreview - Minnesota Law Review - [RITTMANN V. AMAZON.COM: A WRONG TURN FOR GIG WORKERS LOOKING FOR CLARITY IN THE FEDERAL ARBITRATION ACT](https://minnesotalawreview.org/2021/03/11/rittmann-v-amazon-com-a-wrong-turn-for-gig-workers-looking-for-clarity-in-the-federal-arbitration-act/) - By Zach Krenz, Volume 105 Staffer The Federal Arbitration Act (FAA) makes arbitration clauses enforceable. Section 2, which outlines the breadth of the Act, states that arbitration provisions in contracts “involving commerce . . . shall be valid, irrevocable, and enforceable. . . .”[1] Section 1 of the Federal Arbitration Act exempts certain categories of lawreview - Minnesota Law Review - [GETTING WHAT’S DUE: INCARCERATED INDIVIDUALS AND COVID STIMULUS PAYMENTS](https://minnesotalawreview.org/2021/03/08/getting-whats-due-incarcerated-individuals-and-covid-stimulus-payments/) - By: Mollie Wagoner, Vol. 105 Staff Member In the wake of the pandemic, Congress issued two rounds of payments, commonly referred to as stimulus checks, to a large swath of the American public in an attempt to offset the economic struggles caused by COVID. While on its face this seems like a relatively straightforward government lawreview - Minnesota Law Review - [THE UBIQUITY OF SOCIAL MEDIA DICTATES THE RESULT: WHY THE SUPREME COURT SHOULD AFFIRM THE THIRD CIRCUIT IN MAHANOY AREA SCHOOL DISTRICT V. B.L. AS A MATTER OF NON-DISCRIMINATION](https://minnesotalawreview.org/2021/03/01/the-ubiquity-of-social-media-dictates-the-result-why-the-supreme-court-should-affirm-the-third-circuit-in-mahanoy-area-school-district-v-b-l-as-a-matter-of-non-discrimination/) - By: Miriam Solomon, Volume 105 Staff Member In B.L. v. Mahanoy Area School District, the plaintiff, a sophomore in high school, was removed from the school cheerleading team after the team coaches learned of a post B.L. made on Snapchat. After participating on the school’s junior varsity cheerleading team during her freshman year, B.L. tried lawreview - Minnesota Law Review - [THE CASE FOR A CONSTITUTIONAL CHANGE TO TRANSFORM BLACK EDUCATION IN MINNESOTA](https://minnesotalawreview.org/2021/02/22/the-case-for-a-constituitonal-change-to-transform-black-education-in-minnesota/) - Brandie Burris, Volume 105 Staff Member and Incoming EIC for Volume 106 INTRODUCTION Although elected officials and community leaders regularly celebrate Minnesota’s recognition as a leader in public education,[1] these awards and statements hide the true picture.[2] In reality, Minnesota’s public schools, even in “progressive” Minneapolis, continually fail Black, Brown, and Indigenous children.[3] Too lawreview - Minnesota Law Review - [Volume 105 Headnotes: Fall Issue](https://minnesotalawreview.org/2021/02/15/volume-105-headnotes-fall-issue/) - Bostock, LGBT Discrimination, and the Subtractive Moves By Andrew Koppelman Full essay here. Nonessential Businesses and Liability Waivers in the Time of COVID-19 By Zahra Takhshid Full essay here. Case-Linked Jurisdiction and Busybody States By Howard M. Erichson, John C.P. Goldberg, and Benjamin C. Zipursky Full essay here. Reconstruction in Legal Theory By George Rutherglen Full essay here. lawreview - Minnesota Law Review - [INOCULATION INJUSTICE: A FEDERAL RESPONSE TO VACCINE LINE JUMPING ](https://minnesotalawreview.org/2021/02/15/inoculation-injustice-a-federal-response-to-vaccine-line-jumping/) - By: Annika Beck, Volume 105 Staff Member The COVID-19 pandemic has generated a variety of antisocial behaviors, from profiteers filling warehouses with disinfectants[1] to tenants demanding sexual favors from clients who are behind on rent.[2] Now that COVID-19 vaccines are available for those at highest risk of infection, one more antisocial behavior must be added lawreview - Minnesota Law Review - [NOBODY WINS WITH SILENCE: WHY STATE GOVERNMENTS SHOULD LEVERAGE COVID-19 RELIEF TO DETER WORKPLACE GAG ORDERS](https://minnesotalawreview.org/2021/01/21/nobody-wins-with-silence-why-state-governmtnets-should-leverage-covid-19-relief-to-deter-workplace-gag-orders/) - By: Frances Daniels, Volume 105 Staff Member INTRODUCTION The year 2020 has brought an unprecedented level of stress into the life of the average U.S. citizen;[1] a global pandemic, a highly polarized political election, civil unrest in the wake of the killing of George Floyd, and economic instability are just a few of the issues lawreview - Minnesota Law Review - [HAS THAT NATION SIGNED?: HOW THE TENTH CIRCUIT’S DECISION IN MOBLEY CAN RESULT IN SERIOUS IMPLICATIONS FOR INTERNATIONAL PARENTAL KIDNAPPING](https://minnesotalawreview.org/2021/02/08/has-that-nation-signed-how-the-tenth-circuits-decision-in-mobley-can-result-in-serious-implications-for-international-parental-kidnapping/) - By: Cole Benson, Volume 105 staff member The case of United States v. Mobley was decided by the Tenth Circuit on August 21, 2020.[1] Mobley held that defendant parents who are found guilty for international kidnapping are not liable for restitution under 18 U.S.C. § 3663A(b)(4) when the other parents incur attorney’s fees in their lawreview - Minnesota Law Review - [STOPPING GAMESTOP’S “GAMESTONK”: WHY COURTS MUST CONFRONT GAMESTOP COLLUDERS AND PROHIBIT OPEN-MARKET MANIPULATION](https://minnesotalawreview.org/2021/02/03/stopping-gamestops-gamestonk-why-courts-must-confront-gamestop-colluders-and-prohibit-open-market-manipulation/) - By: Casey Epstein, Vol. 105 Note & Comment Editor INTRODUCTION Throughout January and into February, online traders frantically purchased GameStop stock, driving the down-on-its-luck company’s stocks into the stratosphere.[1] The GameStop investors—primarily small-scale Reddit users—have openly colluded against large hedge funds with short positions against GameStop.[2] The result: Many large hedge funds have lost lawreview - Minnesota Law Review - [DEFAMATION IN 280 CHARACTERS OR LESS: HOW DEFAMATION CASE LAW SHOULD EVOLVE TO HOLD POLICE ACCOUNTABLE FOR HARMFUL TWEETS](https://minnesotalawreview.org/2021/01/12/defamation-in-280-characters-or-less-how-defamation-case-law-should-evolve-to-hold-police-accountable-for-harmful-tweets/) - By: Eura Chang, Volume 105 Staff Member On June 1, 2020, people across the nation took to the streets to protest the murder of George Floyd at the hands of Minneapolis police and police brutality.[1] That same day, the Columbus Police Department (CPD), located in Ohio, posted a photo of a painted bus and a lawreview - Minnesota Law Review - [ACCESS DENIED: @REALDONALDTRUMP AND THE FIRST AMENDMENT](https://minnesotalawreview.org/2021/01/06/access-denied-realdonaldtrump-and-the-first-amendment/) - By: Emilie Erickson, Volume 105 Staff Member Although former-President Obama revolutionized using social media for political mobilization,[1] President Trump’s use evolved Twitter into a real political tool “fully integrated . . . into the very fabric of his administration.”[2] From claiming voter fraud[3] to announcing key foreign policy[4], President Trump has done it all on lawreview - Minnesota Law Review - [WHEN VIRAL VIDEOS BECOME A NATIONAL SECURITY THREAT: TIKTOK INC. V. TRUMP](https://minnesotalawreview.org/2020/12/29/when-viral-videos-become-a-national-security-threat-tiktok-inc-v-trump/) - By: Haille Laws, Volume 105 Staff Member On August 23, 2019, President Donald Trump tweeted that “American companies are hereby ordered to immediately start looking for an alternative to China, including bringing . . . your companies [home] and making products in the USA.”[1] In an apparent effort to prove that the president had legal lawreview - Minnesota Law Review - [AN UNEQUAL RIGHT TO VOTE: WHY COURTS SHOULD HOLD THAT DISPROPORTIONATE ALLOCATIONS OF BALLOT DROP BOXES AND POLLING PLACES VIOLATE THE EQUAL PROTECTION CLAUSE](https://minnesotalawreview.org/2020/12/07/an-unequal-right-to-vote-why-courts-should-hold-that-disproportionate-allocations-of-ballot-drop-boxes-and-polling-places-violate-the-equal-protection-clause/) - By: Elliot Ergeson, Volume 105 Staff Member Voter suppression is a prominent issue in American elections.[1] One mechanism by which States engage in voter suppression is by closing or limiting the number of polling places in certain areas.[2] During the COVID-19 pandemic, however, many voters chose to vote by mail rather than in person for lawreview - Minnesota Law Review - [IS THE GREEN NEW DEAL DEAD ON ARRIVAL? THE CASE FOR “JUSTICE-PROOFING” PROGRESSIVE CLIMATE LEGISLATION IN THE NEW ACB-ERA](https://minnesotalawreview.org/2020/12/01/is-the-green-new-deal-dead-on-arrival-the-case-for-justice-proofing-progressive-climate-legislation-in-the-new-acb-era/) - By: Alexandria Dolezal, Volume 105 Staff Member On September 18, 2020, Justice Ruth Bader Ginsburg died at age 87, after a long battle with pancreatic cancer.[1] Days before her death she communicated to her granddaughter that her “most fervent wish [was] that [she] not be replaced until a new president is installed.”[2] That wish did lawreview - Minnesota Law Review - [GUILTY UNTIL EXPUNGED: HOW MINNESOTA’S PUBLIC RECORDS POLICIES NEEDLESSLY BURDEN RENTERS](https://minnesotalawreview.org/2020/11/23/guilty-until-expunged-how-minnesotas-public-records-policies-needlessly-burden-renters/) - By: Ashley Meeder, Vol. 105 Staff Member If you have $285 for a filing fee and 20 minutes to fill out a form in Minnesota, you can ruin someone’s life.[1] Filing an eviction complaint starts a legal battle, but renters are wounded before they even enter a court room. In Minnesota, evictions are publicly accessible lawreview - Minnesota Law Review - [THE LAW DOESN’T CARE ABOUT YOUR FEELINGS: BEN SHAPIRO’S UNSUCCESSFUL FIRST AMENDMENT SUIT AGAINST THE UNIVERSITY OF MINNESOTA AND THE CASE FOR PUBLIC SAFETY-BASED SPEECH RESTRICTIONS](https://minnesotalawreview.org/2020/11/16/the-law-doesnt-care-about-your-feelings-ben-shapiros-unsuccessful-first-amendment-suit-against-the-university-of-minnesota-and-the-case-for-public-safety-based-speech-restrictions/) - By: Alenah Luthens, Volume 105 Staff Member “Facts don’t care about your feelings” is conservative pundit Ben Shaprio’s trademark phrase.[1] And he’s right. Indeed, the phrase proved particularly true in Young America’s Found. v. Kaler where Shapiro’s free speech lawsuit against the University of Minnesota (University) ultimately fell flat.[2] The case began in 2018 when lawreview - Minnesota Law Review - [CONTRACTS AND COVID-19: DEFENDING NONPERFORMANCE WITH FRUSTRATED PURPOSE AS A SHIELD](https://minnesotalawreview.org/2020/11/10/contracts-and-covid-19-defending-nonperformance-with-frustrated-purpose-as-a-shield/) - By: Brice Michka, Volume 105 Staff Member As the United States trudged through the most grueling months of the COVID-19 pandemic, countless contracts were affected. Many sporting organizations, including the National Basketball Association, Kentucky Derby, NASCAR, Indianapolis 500, Major League Soccer, National Hockey League, and others, changed their seasons drastically through postponement or cancellation.[1] Many lawreview - Minnesota Law Review - [NBA PLAYERS PROTEST: WHY THEIR REFUSAL TO PLAY COULD PROVOKE LEGAL RAMIFICATIONS](https://minnesotalawreview.org/2020/11/08/nba-players-protest-why-their-refusal-to-play-could-provoke-legal-ramifications/) - By: Jason Leadley, Volume 105 Staff Member On August 23, 2020, police officers shot Jacob Blake, a 29-year-old Black man from Kenosha, Wisconsin, sparking protests.[1] Following the shooting, the Milwaukee Bucks decided not to take the floor in their Game 5 playoff matchup against the Orlando Magic.[2] The NBA players, alongside other professional athletes, sought lawreview - Minnesota Law Review - [TAKING CARE: HOW THE LAW CAN INCENTIVIZE PERSONAL RESPONSIBILITY IN AN AGE OF PANDEMICS](https://minnesotalawreview.org/2020/06/05/taking-care-how-the-law-can-incentivize-personal-responsibility-in-an-age-of-pandemics/) - By: Nathan Webster, Volume 105 Managing Editor As the United States confronts the Coronavirus pandemic, experts are devoting considerable thought to discerning the best method for overcoming the crisis. While most overt discussions center on the ways medical science can help treat the disease, policymakers are expending considerable time using their legal authority to lawreview - Minnesota Law Review - [PRISONER’S DILEMMA? HOW THE EIGHTH CIRCUIT RESOLVED A JURISDICTIONAL ODDITY ARISING FROM FEDERAL HABEAS MOTIONS](https://minnesotalawreview.org/2020/05/13/prisoners-dilemma-how-the-eighth-circuit-resolved-a-jurisdictional-oddity-arising-from-federal-habeas-motions/) - By: Spencer Davis-Vanness, Volume 104 Staff Member In a recent case, Ralph Duke—prosecuted and convicted in Minnesota during the early 1990s as one of the state’s biggest-ever drug dealers—successfully challenged elements of his conviction under a habeas petition in federal district court in Wisconsin, where he was imprisoned. Shortly thereafter, Duke was returned to Minnesota lawreview - Minnesota Law Review - [<em>UNITED STATES V. NEWSOM</em>: CALIFORNIA’S FIGHT AGAINST PRIVATIZED IMMIGRATION DETENTION](https://minnesotalawreview.org/2020/04/30/united-states-v-newsom-californias-fight-against-privatized-immigration-detention/) - By: Natalie Feeney, Volume 104 Staff Member Private prisons have become a focal point of American criminal justice reform in recent years, especially in regard to solving the problem of mass incarceration.[1] According to data from 2017, the number of individuals incarcerated in privately-owned prisons has increased 39.3 percent since 2000, even though the overall lawreview - Minnesota Law Review - [CLIMATE CHANGE ISN’T MATERIAL?: HOW PEOPLE OF THE STATE OF NEW YORK V. EXXON MOBIL CORPORATION HIGHLIGHTS THE NEED FOR MANDATORY GREENHOUSE GAS EMISSION DISCLOSURES](https://minnesotalawreview.org/2020/04/26/climate-change-isnt-material-how-people-of-the-state-of-new-york-v-exxon-mobil-corporation-highlights-the-need-for-mandatory-greenhouse-gas-emission-disclosures/) - By: Han Li, Volume 104 Staff Member Over the past three years, major climate disasters have cost the U.S. over $450 billion.[1] The rate of extreme weather events have doubled over the past five years, meaning these costs will only increase.[2] The threat is anything but silent, however, as climate change is now among the lawreview - Minnesota Law Review - [TAP A BUTTON, GET DENIED: UBER’S NONCOMPLIANCE WITH THE ADA](https://minnesotalawreview.org/2020/04/24/tap-a-button-get-denied-ubers-noncompliance-with-the-ada/) - By: Carmen Carballo, Volume 104 Staff Member I. A CRASH COURSE ON UBER & SERVICE ANIMALS The basic idea behind Uber is simple — “tap a button, get a ride.”[1] With this simple concept, Uber grew from a small app-based company in San Francisco[2] to an indispensable part of modern life. Uber currently operates in lawreview - Minnesota Law Review - [ANTITRUST ENFORCEMENT BY ARBITRATION: DOJ’S USE OF ARBITRATION IN UNITED STATES V. NOVELIS PUTS MATTER OF CONSUMER PROTECTION IN QUESTIONABLE HANDS](https://minnesotalawreview.org/2020/04/24/antitrust-enforcement-by-arbitration-dojs-use-of-arbitration-in-united-states-v-novelis-puts-matter-of-consumer-protection-in-questionable-hands/) - By: Hugh Fleming, Volume 104 Staff Member The suit filed by the United States Department of Justice (DOJ) Antitrust Division against Novelis, Inc. began like any other antitrust enforcement action under the Clayton Act,[1] but quickly took an unusual turn: the parties decided to submit a central issue in the dispute to binding arbitration.[2] Novelis lawreview - Minnesota Law Review - [THE INTERNATIONAL SPECIAL PROSECUTOR’S OFFICE: MINIMIZING PRESIDENTIAL INFLUENCE IN PROSECUTION OF POLITICAL CRIMES AND CORRUPTION](https://minnesotalawreview.org/2020/04/23/the-international-special-prosecutors-office-minimizing-presidential-influence-in-prosecution-of-political-crimes-and-corruption/) - By: Rachel Wydra, Volume 104 Staff Member I. ROGER STONE AND PRESIDENTIAL INFLUENCE OVER CRIMINAL PROSECUTIONS One of the more recent developments in the long saga of the Mueller investigation was the filing of two different government recommendations for the sentencing of Roger Stone.[1] Stone, a long-time Republican advisor and ally of President Donald Trump, lawreview - Minnesota Law Review - [Creating the Final Frontier](https://minnesotalawreview.org/2018/11/21/3450/) - CREATING THE FINAL FRONTIER: NAVIGATING PROPERTY RIGHTS AMONG THE STARS By: Karthik Raman, Volume 103 Staff Member Introduction It has been more than fifty years since the beginning of the Space Race. The Soviet Union was fresh from victoriously launching the first person into space, and President John F. Kennedy famously declared that America would lawreview - Minnesota Law Review - [CASH NOT WELCOME HERE: THE TREND (AND BACKLASH) TOWARDS CASHLESS RETAIL](https://minnesotalawreview.org/2020/04/23/cash-not-welcome-here-the-trend-and-backlash-towards-cashless-retail/) - By: Matthew Cavanaugh, Volume 104 Staff Member Michael Rosen really wanted a pair of headphones. So much so, in fact, that he filed a lawsuit against Continental Airlines (now United Airlines).[1] In 2011, Rosen, an attorney, brought four separate claims against the airline based on its refusal to allow him to purchase a $3 pair lawreview - Minnesota Law Review - [WHEN CROSS-EXAMINATION INTO A VICTIM’S IMMIGRATION STATUS CROSSES THE LINE: THE RELEVANCY AND RISK OF PREJUDICE OF U VISA EVIDENCE](https://minnesotalawreview.org/2020/04/23/when-cross-examination-into-a-victims-immigration-status-crosses-the-line-the-relevancy-and-risk-of-prejudice-of-u-visa-evidence/) - By: Nick Wolfson, Volume 104 Staff Member Although undocumented immigrants are more likely than citizens to be the victims of crimes committed in the United States, undocumented immigrants are less likely to report those crimes to law enforcement.[1] Fear of removal (deportation) is one reason why many victims choose not to report even the most lawreview - Minnesota Law Review - [ESPORTS AND THE DUAL DISTRIBUTION PROBLEM](https://minnesotalawreview.org/2020/04/17/esports-and-the-dual-distribution-problem/) - By: Michael Arin, Volume 104 Editor Riot Games, the publisher of the games League of Legends and Valorant, recently released their North America Community Competition Guidelines,[1] which detail conditions for the use of their intellectual property during third-party organized competition.[2] The guidelines include restraints on trade that go to the heart of the independent tournament lawreview - Minnesota Law Review - [SECOND CHANCES: MINNESOTA SHOULD BAN DE FACTO LIFE SENTENCES FOR JUVENILE OFFENDERS](https://minnesotalawreview.org/2020/04/16/second-chances-minnesota-should-ban-de-facto-life-sentences-for-juvenile-offenders/) - By: Alina Yasis, Volume 104 Staff Member In the past few decades, advances in psychology and neuroscience have provided us with empirical data supporting the commonsense notion that the brain of a child or adolescent differs significantly from an adult brain.[1] Since the landmark decisions of Miller v. Alabama and Montgomery v. Louisiana, our legal lawreview - Minnesota Law Review - [TELESCOPE MEDIA GROUP V. LUCERO: EIGHT CIRCUIT STRENGTHENS RELIGIOUS FREEDOM ARGUMENTS WHILE UNDERMINING IMPORTANT ANTI-DISCRIMINATION STATUTE](https://minnesotalawreview.org/2020/04/16/telescope-media-group-v-lucero-eight-circuit-strengthens-religious-freedom-arguments-while-undermining-important-anti-discrimination-statute/) - By: Cat Ulrich, Volume 104 Staff Member Minnesota has a long tradition of protecting minorities from discrimination[1], including those in the LGBTQ+ community.[2] One of the most important tools Minnesota has to protect against discrimination is the Minnesota Human Rights Act (MHRA).[3] MHRA states that it is the public policy of the state that persons lawreview - Minnesota Law Review - [FACEBOOK AND THE FRAGMENTED FREE MARKETPLACE OF IDEAS](https://minnesotalawreview.org/2020/04/15/facebook-and-the-fragmented-free-marketplace-of-ideas/) - By: Jonathan Baker, Volume 104 Staff Member When the Framers adopted formal protections to free speech with the ratification of the Bill of Rights in 1791, information exchange and dissemination primarily occurred through “individuals talking one to another, . . . addressing town meetings[,]” or the publication of “handbills, newspapers and periodicals of a few pages, printed lawreview - Minnesota Law Review - [NO MORE POLITICAL ADS! WHY TWITTER’S DECISION TO BAN ALL POLITICAL AND CAUSE-BASED ADS IS REALLY OKAY](https://minnesotalawreview.org/2020/04/06/no-more-political-ads-why-twitters-decision-to-ban-all-political-and-cause-based-ads-is-really-okay/) - By: Jenna Hensel, Volume 104 Staff Member “Confirm Judge Brett Kavanaugh!” said President Donald Trump in a political ad posted to Facebook.[1] This is one of many political ads posted on social media by politicians. Social media companies such as Twitter are not regulated by the government.[2] This means that unlike government entities, social media lawreview - Minnesota Law Review - [PICKING UP THE FLAG ON ILLEGAL PROCEDURE: WHY RULE 41 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE NEEDS TO BE UPDATED WITH THE TIMES](https://minnesotalawreview.org/2020/04/02/picking-up-the-flag-on-illegal-procedure-why-rule-41-of-the-federal-rules-of-criminal-procedure-needs-to-be-updated-with-the-times/) - By: Geoff Koslig, Volume 104 Staff Member The Fourth Amendment’s drafters could have scarcely imagined social media and the internet.[1] For decades, courts have struggled to apply the Amendment to searches of or utilizing new technologies.[2] Recently, courts have struggled with how the Fourth Amendment affects searches of the vast amount of data generated by lawreview - Minnesota Law Review - [THE BUILDING BLOCKS OF LIFE: CYBER-TRESPASS, THE FOURTH AMENDMENT, AND PUBLIC ANCESTRY DATABASES](https://minnesotalawreview.org/2020/04/02/the-building-blocks-of-life-cyber-trespass-the-fourth-amendment-and-public-ancestry-databases/) - By: William C. G. Wright, Volume 104 Staff Member With the advent of affordable commercial DNA testing services such as 23andMe, Ancestry, and MyHeritage, people are flocking to discover the secrets of their genetic code in unprecedented numbers.[1] Researchers expect more than 74 million people will add their DNA to commercial databases between 2019 and lawreview - Minnesota Law Review - [TITS UP: WHY IT’S TIME FOR THE SUPREME COURT TO RULE ON TOPLESS ORDINANCES](https://minnesotalawreview.org/2020/04/01/tits-up-why-its-time-for-the-supreme-court-to-rule-on-topless-ordinances/) - By: Kathryn Campbell, Volume 104 Staff Member The United States loves to exercise control over cis-women’s bodies.[1] Notably, both federal and state governments seemingly fear the exposure of a cis-woman’s exposed “erogenous” areola—although men have them as well.[2] Perhaps the most archaic way in which governments within the United States attempt to regulate women’s bodies lawreview - Minnesota Law Review - [CAKING ON THE MAKEUP: INCREASED REGULATIONS OF SPECIAL EVENTS HAIR AND MAKEUP ARTISTS IN MINNESOTA](https://minnesotalawreview.org/2020/03/29/caking-on-the-makeup-increased-regulations-of-special-events-hair-and-makeup-artists-in-minnesota/) - By Michaela Liesenberg, Volume 104 Staff Member Nationwide, the wedding industry generates annual revenue of over $78 billion.[1] As weddings are highly photographed events, spouses-to-be spend an average of $225 on hair and makeup services for their special day.[2] In 2019, Minnesota hosted 31,712 weddings and, if every couple who wed utilized hair and makeup lawreview - Minnesota Law Review - [LET THEM MAKE WINE: DOES THE MINNESOTA FARM WINERY ACT VIOLATE THE DORMANT COMMERCE CLAUSE?](https://minnesotalawreview.org/2020/03/29/let-them-make-wine-does-the-minnesota-farm-winery-act-violate-the-dormant-commerce-clause/) - By: Jenni Oprosko, Volume 104 Staff Member Minnesota has a long and complex history with liquor laws. In the 1800’s, Minneapolis created a quasi-zoning scheme to create areas where existing anti-salon laws would not apply.[1] In 1919 a Minnesotan, Andrew Volstead, introduced the act in the House of Representatives that eventually became the prohibition amendment.[2] lawreview - Minnesota Law Review - [WHOSE VOTE MATTERS? WHY PRESIDENTIAL CAMPAIGNS SHOULD BE PUBLICLY FUNDED IN ORDER TO BALANCE THE VALUE OF VOTER SPEECH WITH CANDIDATE SPEECH](https://minnesotalawreview.org/2020/03/16/whos-vote-matters-why-presidential-campaigns-should-be-publicly-funded-in-order-to-balance-the-value-of-voter-speech-with-candidate-speech/) - By Joshua Cottle, Volume 104 Staff Member Over 1.3 billion dollars were spent by candidates in each of the last three presidential campaigns, while political action committees spent more than 4 billion dollars on political advertising.[1] Yet, only twelve percent of the population donated to political campaigns in the 2016 election.[2] As these donations quickly lawreview - Minnesota Law Review - [DIRECTIONLESS DIRECTIVES: WHY MINNESOTA SHOULD ESTABLISH AN ADVANCE DIRECTIVE REGISTRY](https://minnesotalawreview.org/2020/02/26/directionless-directives-why-minnesota-should-establish-an-advance-directive-registry/) - By: Kaitie Eke, Volume 104 Staff Member In recent decades, advance care planning[1] (“ACP”) has gained momentum in the United States.[2] Through advance directives, a person can communicate their preferences and designate agents to make healthcare decisions on their behalf should the individual become incapacitated.[3] Those who complete advance directives may experience several benefits, including lawreview - Minnesota Law Review - [WHAT’S THE BEEF? CONTROVERSY SURROUNDING THE LABELING OF PLANT-BASED AND CELL-BASED MEAT](https://minnesotalawreview.org/2020/02/23/whats-the-beef-controversy-surrounding-the-labeling-of-plant-based-and-cell-based-meat/) - By Lexi Pitz, Volume 104 Staff Member Meat consumption is a long-engrained tradition in the American diet. Recently, many American meat consumers are motivated to consume plant-based meat for reasons such as health, animal welfare,[1] and environmental impact.[2] The booming meat alternative industry lacks federal regulation or guidance on how to label meat alternatives.[3] As lawreview - Minnesota Law Review - [STAR WARS?: THE RISE OF THE SPACE FORCE](https://minnesotalawreview.org/2020/02/13/star-wars-the-rise-of-the-space-force/) - By: Sarah Nelson, Volume 104 Staff Member George Lucas’s “Episode IV – A New Hope” served as the impetus for what would become the second-highest grossing movie franchise of all time: Star Wars.[1] The 1977 would-be saga that enthralled audiences worldwide featured Jedi Knights and Dark Lords of the Sith engaging in an ongoing war.[2] lawreview - Minnesota Law Review - [STATES CRYING WOLF: MANUFACTURED CRISIS AND EMERGENCY POWER MANIPULATION](https://minnesotalawreview.org/2020/02/11/states-crying-wolf-manufactured-crisis-and-emergency-power-manipulation/) - By: Abby Oakland, Volume 104 Staff Member Hong Kong was under siege. Mass protests had been ongoing for months, and the government’s attempts to resolve the dispute had fallen short.[1] Tensions between police and protesters continued to escalate, and in a move sparking global criticism, Hong Kong’s executive used a little-known emergency powers law to lawreview - Minnesota Law Review - [GIVE ME YOUR TIRED, YOUR HUNGRY, WHO CAN AFFORD RENT: WHY THE PUBLIC CHARGE RULE IS ARBITRARY AND CAPRICIOUS](https://minnesotalawreview.org/2020/01/26/give-me-your-tired-your-hungry-who-can-afford-rent-why-the-public-charge-rule-is-arbitrary-and-capricious/) - By: Mimi Alworth, Volume 104 Staff Member Since the late 1800s, the United States’ immigration policy has maintained that a foreign person seeking to enter the United States can be turned away if she is a “Public Charge.” The definition historically includes only the most destitute applicant.[1] However, in 2018, the Department of Homeland Security lawreview - Minnesota Law Review - [DIGITAL ASYLUM: WHAT CAN ONLINE SOCIAL GROUPS TELL US ABOUT THE CURRENT STATE OF U.S. ASYLUM LAW?](https://minnesotalawreview.org/2020/01/28/digital-asylum-what-can-online-social-groups-tell-us-about-the-current-state-of-u-s-asylum-law/) - By: Cooper Christiancy, Volume 104 Staff Member In William Gibson’s 1984 cyberpunk novel Neuromancer, a dystopian technological landscape bounds social identity around lines of class, legality, and cyber-implants.[1] Neuromancer follows the trail of a washed-up antihero whose identity is structured around his interactions with “the matrix,” the sum total of humanity’s digital experience.[2] Gibson’s society lawreview - Minnesota Law Review - [MARRIAGE MIGHT GET MORE EXPENSIVE: CAN BANKS REQUIRE SPOUSES TO GUARANTEE LOANS?](https://minnesotalawreview.org/2020/02/01/marriage-might-get-more-expensive-can-banks-require-spouses-to-guarantee-loans/) - By: Alec Mitchell, Volume 104 Staff Member I. INTRODUCTION The basic concept of a loan is simple: an individual walks into a bank and the bank gives them money on their promise to pay it back, with interest. But what if the bank is worried that the individual might not pay the money back? Banks lawreview - Minnesota Law Review - [PUBLIC HEALTH—1, ANTI-VAXXERS—0: WHY YOUR RELIGIOUS BELIEFS SHOULDN’T JEOPARDIZE OUR CHILDREN’S HEALTH AND SAFETY](https://minnesotalawreview.org/2020/01/28/public-health-1-anti-vaxxers-0-why-your-religious-beliefs-shouldnt-jeopardize-our-childrens-health-and-safety/) - By: Jessica Szuminski, Volume 104 Staff Member What’s more important: the right to freely practice religion, or the right of children to not die from deadly but eradicable diseases? The state of New York determined that the latter was more pressing on August 23, 2019, when the state district court blocked a preliminary injunction in lawreview - Minnesota Law Review - [CRIMINAL PROCEDURE AT 30,000 FEET: FINDING A PROPER VENUE FOR CRIMES COMMITTED DURING AIR TRAVEL](https://minnesotalawreview.org/2020/01/26/criminal-procedure-at-30000-feet-finding-a-proper-venue-for-crimes-committed-during-air-travel/) - By: Ryan Plasencia, Volume 104 Staff Member Commercial air travel is ubiquitous and essential to the American traveler. Indeed, in 2017 alone, United States citizens accounted for 632 million flight passengers.[1] Outside of the occasional delay or cancellation, the vast majority of these flights were smooth, if mundane, experiences for passengers. But the experience of lawreview - Minnesota Law Review - [HOUSING IS JUSTICE: THE MINNEAPOLIS RENTERS PROTECTION ORDINANCE IS A STEP IN THE RIGHT DIRECTION FOR CRIMINAL JUSTICE REFORM](https://minnesotalawreview.org/2020/01/23/housing-is-justice-the-minneapolis-renters-protection-ordinance-is-a-step-in-the-right-direction-for-criminal-justice-reform/) - By: Olivia Levinson, Volume 104 Staff Member A single interaction with the criminal justice system can permanently label someone a “dangerous neighbor” and unwanted in communities.[1] Over the summer of 2019, the Minneapolis City Council recently debated how criminal records can be a barrier to finding housing, eventually creating an amendment to title 12, Chapter lawreview - Minnesota Law Review - [THE PATH IS CLEARED: A GROWING BODY OF CASE LAW UPHOLDS STATES’ REMOVAL OF NON-MEDICAL VACCINATION EXEMPTIONS; MINNESOTA SHOULD BE NEXT](https://minnesotalawreview.org/2019/12/04/the-path-is-cleared-a-growing-body-of-case-law-upholds-states-removal-of-non-medical-vaccination-exemptions-minnesota-should-be-next/) - By: Meredith Gingold, Volume 104 Staff Member INTRODUCTION So far in 2019, two events have taken place: (1) more than 1,200 cases of measles have been reported in the United States, in 31 states so far,[1] and (2) 20 states have introduced legislation to expand non-medical exemptions[2] for vaccines or to require doctors to provide lawreview - Minnesota Law Review - [CARPENTER V. MURPHY: A REEXAMINATION OF THE CREEK NATION IN OKLAHOMA](https://minnesotalawreview.org/2019/12/04/carpenter-v-murphy-a-reexamination-of-the-creek-nation-in-oklahoma/) - By: Aron Mozes, Volume 104 Staff Member The pending Supreme Court case Carpenter v. Murphy[i] presents an intersection of the history, laws, and legislative actions surrounding the Creek Nation in Oklahoma, as well as a broader re-examination of the relationship between Native American tribes and the federal government. The case considers whether the 1866 territorial lawreview - Minnesota Law Review - [NO LEG TO STAND ON: HOW THE FEDERAL CIRCUIT IMPROPERLY RESTRICTED THE APPLICATION OF THE COMPETITOR STANDING DOCTRINE TO PATENT CHALLENGERS WHEN ESTABLISHING ARTICLE III STANDING UPON APPEALING AN INTER PARTES REVIEW](https://minnesotalawreview.org/2019/11/25/no-leg-to-stand-on-how-the-federal-circuit-improperly-restricted-the-application-of-the-competitor-standing-doctrine-to-patent-challengers-when-establishing-article-iii-standing-upon-appealing-an-int/) - By: Ryan Fitzgerald, Volume 104 Staff Member The Federal Circuit’s recent holding in General Electric Co. v United Technologies Corp.[i] increases the difficulty for competitors to challenge the validity of a patent in court after an adverse inter partes review (IPR) decision.[ii] An IPR allows any person or institution to challenge the validity of a lawreview - Minnesota Law Review - [AN UNCONSTITUTIONAL POLL TAX? PRELIMINARY INJUNCTION PROVIDES INSIGHT ON FLORIDA STATUTE SB7066.](https://minnesotalawreview.org/2019/11/20/an-unconstitutional-poll-tax-preliminary-injunction-provides-insight-on-florida-statute-sb7066/) - By: Seiko Shastri, Vol. 104 Staff Member An estimated 6 million United States citizens do not have the right to vote because of a prior criminal conviction.[1] One-quarter of those disenfranchised individuals––1.5 million Americans––live in the state of Florida.[2] This disenfranchisement has disproportionately affected black residents, preventing nearly 20 percent of black adults of voting lawreview - Minnesota Law Review - [CITIES ARE TURNING ON CONVERSION THERAPY BANS](https://minnesotalawreview.org/2019/11/12/cities-are-turning-on-conversion-therapy-bans/) - By: Melanie Griffith, Volume 104 Staff Member INTRODUCTION The tides are turning on the trend of conversion therapy bans. Conversion therapy is a controversial practice that purports to “cure” homosexual or transgender individuals by attempting to change their sexual orientation or gender identity.[1] Therapists use methods ranging from aversion therapy and shock therapy to seemingly-benign lawreview - Minnesota Law Review - [A REGULATORY FUMBLE: THE CHANGING REGULATORY SCHEME SURROUNDING GAMBLING AND DAILY FANTASY SPORTS](https://minnesotalawreview.org/2019/11/12/a-regulatory-fumble-the-changing-regulatory-scheme-surrounding-gambling-and-daily-fantasy-sports/) - By: Paul Strey, Volume 104 Staff Member INTRODUCTION On September 26, 2019, the National Football League formally announced that DraftKings would be the official daily fantasy provider for professional football.[1] The partnership allows DraftKings to use the official NFL logo, special highlight reels, and the NFL’s NextGen statistics program.[2] This endorsement represents the first time lawreview - Minnesota Law Review - [SEVENTH CIRCUIT’S LEGAL PRUDISHNESS: INCORRECT DECISION IN TRAN CREATES A SPLIT](https://minnesotalawreview.org/2019/11/12/seventh-circuits-legal-prudishness-incorrect-decision-in-tran-creates-a-split/) - By: Zach Wright, Volume 104 Staff Member The Seventh Circuit decided Tran v. Minnesota Life Ins. Co. (“Tran”) in April of 2019.[I] Tran stemmed from a beneficiary’s claim for benefits under an ERISA-governed life insurance policy after their spouse died engaging in autoerotic asphyxiation.[ii] The court held that a reasonable person would conclude death by autoerotic asphyxiation lawreview - Minnesota Law Review - [BLOCKING THE SUNSHINE: SUPREME COURT LIMITS ACCESS TO GOVERNMENT RECORDS IN FOOD MARKETING INSTITUTE V. ARGUS LEADER MEDIA](https://minnesotalawreview.org/2019/10/28/blocking-the-sunshine-supreme-court-limits-access-to-government-records-in-food-marketing-institute-v-argus-leader-media/) - By: Chuqiao Yu, Volume 104 Staff Member Imagine you, as a taxpayer, wanted to know how your hard-earned money had been used and filed a request to a federal agency asking for some information about a commercial program it was administering. The agency declined your request and explained to you that the information you requested lawreview - Minnesota Law Review - [NO TOLL FOR THE TAXPAYER: FINANCIAL DISABILITY, STATUTE OF LIMITATIONS REFUND TOLLING, AND COURTS’ STRICT APPLICATION OF “AUTHORITY”](https://minnesotalawreview.org/2019/10/22/no-toll-for-the-taxpayer-financial-disability-statute-of-limitations-refund-tolling-and-courts-strict-application-of-authority/) - By: Casey Epstein, Volume 104 Staff Member INTRODUCTION Imagine you are poor, mentally-ill, and struggle to manage your finances. You granted your adult son durable power of attorney (“DPA”),[1] but are no longer on speaking terms with him. You work a low-wage, menial job and your paychecks are subject to typical tax withholdings. Because of lawreview - Minnesota Law Review - [The Law Review Appears on NPR's Planet Money](https://minnesotalawreview.org/2019/10/16/the-law-review-appears-on-nprs-planet-money/) - Law Review Editor Thomas Hansfield appeared on NPR's Planet Money podcast to discuss his Minnesota Law Review article about in-game video game purchases and whether or not they fit the legal definition of gambling. Listen to the podcast episode here. lawreview - Minnesota Law Review - [Judicial Attire: An Alteration to “Under the Robes”](https://minnesotalawreview.org/2019/10/02/judicial-attire-an-alteration-to-under-the-robes/) - By: Erik M. Jensen* In 2009, the GreenBag, which (with justification) bills itself as An Entertaining Journal of Law, published my revealing essay on judicial attire—or, more precisely, on what is hidden by judicial attire[i]—Under the Robes: A Judicial Right to Bare Arms and Legs and . . .?[ii] Along the way I hypothesized that, because a judicial lawreview - Minnesota Law Review - [Superbowl Dreams Crushed: But a Lawsuit Is Not the Answer](https://minnesotalawreview.org/2019/04/23/superbowl-dreams-crushed-but-a-lawsuit-is-not-the-answer/) - During the Saints-Rams NFC championship game in early 2019 the referees missed a pass interference call that many experts agree cost the Saints the game. Even the National Football League (NFL) acknowledges that its referees missed the penalty call. With that call, the Saints very likely would have won the game and earned a spot in Superbowl LIII because the penalty would have given the team a first down, which would have allowed them to run out the clock before attempting their game winning field goal. lawreview - Minnesota Law Review - [Another NCAA Upset: Rethinking the Playbook for Compensating Student-Athletes](https://minnesotalawreview.org/2019/04/23/another-ncaa-upset-rethinking-the-playbook-for-compensating-student-athletes/) - March introduced a new kind of madness into collegiate athletics this year. Just as the regular basketball season came to a close and players geared up for the annual all-around tournaments, a ruling issued from the Northern District of California that further blurred the line between amateur and professional sports. lawreview - Minnesota Law Review - [Nielsen v. Preap and How the Way That We Interpret Language Can Change Lives and What Else We Should Consider During Statutory Interpretation](https://minnesotalawreview.org/2019/04/23/nielsen-v-preap-and-how-the-way-that-we-interpret-language-can-change-lives-and-what-else-we-should-consider-during-statutory-interpretation/) - In 1893, Edward Bulwer-Lytton wrote that “[t]he pen is mightier than the sword.” That may be so, but more power lies with he who interprets the words than he who writes them. By using ordinary tools of statutory construction, the Supreme Court interpreted the Apprehension and Detention of Aliens Act and sealed the fate of countless aliens in the United States. lawreview - Minnesota Law Review - [Loot Box Lottery: How the Backlash Against Video Game Loot Boxes Is Affecting Game Developers, Retailers, and Consumers in the Legal Sphere](https://minnesotalawreview.org/2019/04/23/loot-box-lottery-how-the-backlash-against-video-game-loot-boxes-is-affecting-game-developers-retailers-and-consumers-in-the-legal-sphere/) - Confetti! Bright colors! Candy! Little Billy’s eyes are fixed on the screen. He just broke open a Llama Piñata in his favorite video game, Fortnite, with hopes of receiving a rare in-game item he has long desired. Alas, he sees the results and sighs in disappointment. Nothing. Just some useless items he won the day before. lawreview - Minnesota Law Review - [No More Surprises: Patients fight back against Surprise Medical Bills](https://minnesotalawreview.org/2019/04/22/no-more-surprises-patients-fight-back-against-surprise-medical-bills/) - Before his 2013 surgery for herniated disks, Peter Drier checked off all the boxes a diligent patient could: he made sure the facility was in-network, the surgeon was in-network, and he even ensured the anesthesiologist would be in-network. Nonetheless, during the surgery an out-of-network assistant surgeon—whom Drier had never met—stepped in to help. lawreview - Minnesota Law Review - [Amateurs by the Hour](https://minnesotalawreview.org/2019/04/07/amateurs-by-the-hour/) - AMATEURS BY THE HOUR: EXPERIMENTAL AIRCRAFT COMPLETION CENTERS AND TORT LIABILITY By: Mitchell Williams, Volume 103 Staff Member In the wake of the recent air disasters involving Boeing 737 MAX airplanes,[1] much media attention has been directed to the Federal Aviation Administration (“FAA”) for inadequacies in its certification process.[2] While stories like this are sensational to the lawreview - Minnesota Law Review - [There and Back Again](https://minnesotalawreview.org/2019/04/07/there-and-back-again/) - THERE AND BACK AGAIN: THE NLRB’S RECENT JOURNEY THROUGH WORKER CLASSIFICATION UNDER THE NLRA By: Alex Shaner, Volume 103 Staff Member In the modern “gig” economy, a critical issue for access to labor rights comes down to how a worker is labeled.[1] Is a worker an employee or an independent contractor? Recent data from the Bureau lawreview - Minnesota Law Review - [HOLISTIC CARE BEGINS WITH SAFE USE PRACTICES](https://minnesotalawreview.org/2019/03/22/holistic-care-begins-with-safe-use-practices/) - HOLISTIC CARE BEGINS WITH SAFE USE PRACTICES: SAFE INJECTION SITES AS CRUCIAL PIECES TO FIGHTING THE OPIOID EPIDEMIC By: Michelle Cardona Vinasco, Volume 103 Staff Member While using drugs may initially start off as a choice, it often ceases to be one; addiction takes this choice away. Helping people obtain treatment should be one of the lawreview - Minnesota Law Review - [IS A GOOGLE SERVER A “PLACE” FOR PURPOSES OF PATENT VENUE?](https://minnesotalawreview.org/2019/03/22/is-a-google-server-a-place-for-purposes-of-patent-venue/) - IS A GOOGLE SERVER A “PLACE” FOR PURPOSES OF PATENT VENUE? THE FEDERAL CIRCUIT’S REFUSAL TO REHEAR IN RE GOOGLE HINTS THAT IT MIGHT BE By: Jenna Saunders, Volume 103 Staff Member The Supreme Court’s recent holding in TC Heartland has given patent litigators yet another opportunity to challenge the patent system’s adaptability to our technologically driven society. This case lawreview - Minnesota Law Review - [DEMOCRACY UNCAGED](https://minnesotalawreview.org/2019/03/22/democracy-uncaged/) - DEMOCRACY UNCAGED: FLORIDA VOTERS STRIKE DOWN CONSTITUTIONAL REMNANT OF THE JIM CROW ERA AND SET STAGE FOR 2020 ELECTION By: Conor Hume, Volume 103 Staff Member What does it mean to be an American citizen when the law prevents you from participating in democracy? The answer to this question lies in the struggle that minority lawreview - Minnesota Law Review - [PICK UP THE PACER](https://minnesotalawreview.org/2019/03/19/pick-up-the-pacer/) - PICK UP THE PACER: PROGRESS ON THE HORIZON FOR AN OUTDATED AND OVERPRICED SYSTEM By: Megan Square, Volume 103 Staffer “The Wall” has become a recent subject of hot debate. Discussions highlighting its astronomical cost and questionable legality have come to the fore, with some observers even proposing that the idea should be scrapped altogether.[1] These lawreview - Minnesota Law Review - [CHANGING TIDES](https://minnesotalawreview.org/2019/03/19/changing-tides/) - Changing Tides: Article III Standing and Climate Change Litigation By: Hillary Hoffman, Volume 103 Staff Member Globally, young people are attempting to assert their stake in the future of the environment through litigation.[1] This should come as no surprise, since young people will surely be the most severely impacted by climate change.[2]However, courts—or at least U.S. lawreview - Minnesota Law Review - [REHEATING THE COLD WAR](https://minnesotalawreview.org/2019/03/19/reheating-the-cold-war/) - REHEATING THE COLD WAR By: Bonny Birkeland, Volume 103 Staff Member “We really have no choice. Perhaps we can negotiate a different agreement adding China and others, or perhaps we can’t. And in which case, we will outspend and out-innovate all others by far.”[1] -- President Trump At the State of the Union Address, President Trump reiterated lawreview - Minnesota Law Review - [ALL WORK AND NO PAY](https://minnesotalawreview.org/2019/02/28/all-work-and-no-pay/) - ALL WORK AND NO PAY: HOW A STATUTORY CHANGE COULD PROTECT FEDERAL EMPLOYEES’ RIGHTS DURING GOVERNMENT SHUTDOWNS By: Brooke Robbins, Volume 103 Staff Member Spurred by political disagreement, recently, there has been a surge in extended government shutdowns.[1]There are huge costs associated with government shutdowns. For example, the most recent thirty-five-day shutdown under the Trump lawreview - Minnesota Law Review - [Florida v. Riley: Foreshadowing Fourth Amendment Issues in 21st Century Aerial Surveillance and The Need for Clarity](https://minnesotalawreview.org/2019/02/28/florida-v-riley-foreshadowing-fourth-amendment-issues-in-21st-century-aerial-surveillance-and-the-need-for-clarity/) - Florida v. Riley: Foreshadowing Fourth Amendment Issues in 21st Century Aerial Surveillance and The Need for Clarity By: Christopher Beglinger, Volume 103 Staff Member At its core, the Fourth Amendment reflects the maxim “every man’s house is his castle.”[1] Founded on the Framer’s opposition to abuses of power in searching private homes,[2] the Fourth Amendment affirms the lawreview - Minnesota Law Review - [DISNEY-FOX, AT&T-TIME WARNER, AND DOJ INCONSISTENCY](https://minnesotalawreview.org/2019/02/28/disney-fox-att-time-warner-and-doj-inconsistency/) - DISNEY-FOX, AT&T-TIME WARNER, AND DOJ INCONSISTENCY By: Shashi Gowda, Volume 103 Staff Member In October 2016, AT&T Inc. (“AT&T”) announced that it would be acquiring TimeWarner Inc. (“TimeWarner”) through a $108.7 billion purchase.[1] Two years later, The Walt Disney Company (“Disney”) announced that it would be acquiring Twenty-First Century Fox, Inc. (“Fox”) for $71.3 billion.[2] Both potential lawreview - Minnesota Law Review - [GOVERNMENT CAN’T HAVE ITS CAKE AND EAT IT TOO](https://minnesotalawreview.org/2019/02/28/government-cant-have-its-cake-and-eat-it-too/) - GOVERNMENT CAN’T HAVE ITS CAKE AND EAT IT TOO: WHY GOVERNMENT SHOULD NOT INITIATE A CBM REVIEW AND ESCAPE AIA ESTOPPEL PROVISION By: Seung Sub Kim, Volume 103 Staff Member What is a person? Although it is often used as a synonym for “a human being,”[1] courts have expanded the term to include a corporation[2] while ruling lawreview - Minnesota Law Review - [A LESSON IN STATUTORY INTERPRETATION](https://minnesotalawreview.org/2019/02/27/a-lesson-in-statutory-interpretation/) - A LESSON IN STATUTORY INTERPRETATION: AZAR V. ALLINA HEALTH SERVICES AND IMPLICATIONS FOR THE HEALTHCARE AND ADMINISTRATIVE LAW WORLDS By: Allisa Newman, Volume 103 Staff Member Medicare administration has met its match. An already technical healthcare statute is under scrutiny to navigate proper rulemaking procedure for its administration. On January 15, the Supreme Court heard oral arguments lawreview - Minnesota Law Review - [Physician Obligations to Suicidal Patients in the Era of Physician-Assisted Death Laws](https://minnesotalawreview.org/2019/02/22/physician-obligations-to-suicidal-patients-in-the-era-of-physician-assisted-death-laws/) - By Kate Hanson, Volume 103 Staff Member On January 1st of this year, Hawaii became the eighth jurisdiction[1] in the United States to allow physician-assisted death. In physician-assisted death law jurisdictions, physicians may prescribe medication to hasten death,[2] and patients retain the choice to fill the prescription and to ingest the medication. Physician-assisted death is narrowly defined, lawreview - Minnesota Law Review - [Constructing the Sandwich](https://minnesotalawreview.org/2019/02/22/constructing-the-sandwich/) - By Alexander Park Introduction What is a sandwich? Most people never stop to ask themselves this question. After all, the answer seems almost too obvious—two slices of bread with meat, cheese, or some sort of filling between the two slices of bread. In recent years, this question has been in the popular media’s spotlight. One question, lawreview - Minnesota Law Review - [Constructing the Sandwich](https://minnesotalawreview.org/2019/02/13/constructing-the-sandwich-2/) - Constructing the Sandwich By Alexander Park Introduction What is a sandwich? Most people never stop to ask themselves this question. After all, the answer seems almost too obvious—two slices of bread with meat, cheese, or some sort of filling between the two slices of bread. In recent years, this question has been in the popular lawreview - Minnesota Law Review - [Physician Obligations to Suicidal Patients in the Era of Physician-Assisted Death Laws](https://minnesotalawreview.org/2019/02/13/physician-obligations-to-suicidal-patients-in-the-era-of-physician-assisted-death-laws-2/) - PHYSICIAN OBLIGATIONS TO SUICIDAL PATIENTS IN THE ERA OF PHYSICIAN-ASSISTED DEATH LAWS By: Kate Hanson, Volume 103 Staff Member On January 1st of this year, Hawaii became the eighth jurisdiction[1] in the United States to allow physician-assisted death. In physician-assisted death law jurisdictions, physicians may prescribe medication to hasten death,[2] and patients retain the choice to fill lawreview - Minnesota Law Review - [SLAPPing Down Discriminatory Voter Fraud Prosecutions](https://minnesotalawreview.org/2019/02/11/slapping-down-discriminatory-voter-fraud-prosecutions/) - SLAPPing Down Discriminatory Voter Fraud Prosecutions: A Possible Solution to a Problem that Threatens to Chill Participation in Elections By: Sam Cleveland, Volume 103 Staff Member INTRODUCTION A sinister new trend in discriminatory prosecution of alleged voter fraud has compounded other problems which already make it difficult for many Americans. Unlike many other countries, election lawreview - Minnesota Law Review - [The Modern Public Forum](https://minnesotalawreview.org/2019/02/11/the-modern-public-forum/) - THE MODERN PUBLIC FORUM: GOVERNMENT-RUN SOCIAL MEDIA PAGES AND THE FIRST AMENDMENT By: Hudson Peters, Volume 103 Staff Member As American society becomes increasingly digitized, so too has political discourse. However, the law has generally not kept pace with the changing landscape, as more and more Americans interact with their government via the internet. The lawreview - Minnesota Law Review - [The Implications of Jennings v. Rodriguez on Immigration Detention Policy](https://minnesotalawreview.org/2019/02/04/the-implications-of-jennings-v-rodriguez-on-immigration-detention-policy/) - The Implications of Jennings v. Rodriguez on Immigration Detention Policy By: Kelsey Lutz, Volume 103 Staff Member Alejandro Rodriguez, a Mexican citizen, came to the United States with his family as an infant.[1] He had been a lawful permanent resident of the United States for nearly twenty years when he was detained by Immigration and Customs Enforcement (“ICE”) lawreview - Minnesota Law Review - [Free to Drink Local?](https://minnesotalawreview.org/2018/12/30/free-to-drink-local/) - Free to Drink Local? Supreme Court Will Decide Whether Liquor Retailer Durational Residency Requirements Are Valid By: Gina Tonn, Volume 103 Staff Member The maxim “Drink Local” is achievable for many beer and liquor connoisseurs these days.[1] But can state law require that consumers’ only option is to “drink local”? At least twenty-one states restrict out-of-state lawreview - Minnesota Law Review - [Proportional Representation](https://minnesotalawreview.org/2018/12/30/proportional-representation/) - Proportional Representation: Ending Partisan Gerrymandering Without the Courts By: Aaron Stenz, Volume 103 Staff Member Representative democracy is as American as apple pie. It is enshrined in the foundational texts of our nation.[1] It is an abstract ideal and the functional foundation of our government, and it is imperative that we address any issues jeopardizing the lawreview - Minnesota Law Review - [JUDICIAL RECUSAL IN THE POST-CITIZENS UNITED WORLD](https://minnesotalawreview.org/2018/12/30/judicial-recusal-in-the-post-citizens-united-world/) - JUDICIAL RECUSAL IN THE POST-CITIZENS UNITED WORLD By: Bryan Mette, Volume 103 Staff Member I. CITIZENS UNITED AND CAPERTON In 2010, the U.S. Supreme Court struck down federal limits on independent expenditures by corporations holding that it was unconstitutional under the First Amendment to prohibit political speech based on a speaker’s corporate identity.[1] In doing so, the Court reiterated lawreview - Minnesota Law Review - [Losing My Religion (and My Money)](https://minnesotalawreview.org/2018/12/30/losing-my-religion-and-my-money/) - Losing My Religion (and My Money): How the Church of Scientology Contractually Limits Its Ex-Members’ Ability to Fight the Church in Court By: Paige Papandrea, Volume 103 Staff Member The Church of Scientology enjoys an unsavory reputation with the general public, in part due to recent investigative efforts spurred by ex-members and non-members alike.[1]While deaths lawreview - Minnesota Law Review - [ARE ALL DEFENDANTS “DEFENDANTS”? ](https://minnesotalawreview.org/2018/12/07/are-all-defendants-defendants/) - ARE ALL DEFENDANTS “DEFENDANTS”? HOME DEPOT U.S.A., INC. V. JACKSON AND THE QUESTION OF THIRD-PARTY COUNTERCLAIM DEFENDANTS’ REMOVAL POWERS By: Travis Panneck, Volume 103 Staff Member The Supreme Court has granted certiorari to hear arguments in Home Depot U.S.A., Inc. v. Jackson.[1] The case has been described as “an esoteric battle that only a lexicographer or civil procedure nerd lawreview - Minnesota Law Review - [Fourplex City](https://minnesotalawreview.org/2018/11/25/fourplex-city/) - Fourplex City: Local Politics and Neighborhood Values By: Sarah Trautman, Volume 103 Staff Member In 2017, a super-liberal field of mayoral candidates split the Democratic-Farmer-Laborer party endorsement with vying platforms that each addressed affordable housing as a top issue.[1] Jacob Frey ultimately leveraged his track record of civil rights advocacy and championing economic development to win lawreview - Minnesota Law Review - [Democratizing Democracy](https://minnesotalawreview.org/2018/11/25/democratizing-democracy/) - Democratizing Democracy: A Private Right of Action Under the Help America Vote Act Would Improve Election Accuracy and Restore Voter Confidence By: Jack Davis, Volume 103 Staff Member Confidence that a person’s vote will be accurately and honestly recorded is confidence in democracy itself. The recount litigation in Bush v. Gore thrust the potential for inaccurate recording of lawreview - Minnesota Law Review - [Men Fear False Allegations. Women Fear Sexual Misconduct, Assault, and Rape.](https://minnesotalawreview.org/2018/11/25/men-fear-false-allegations-women-fear-sexual-misconduct-assault-and-rape/) - MEN FEAR FALSE ALLEGATIONS. WOMEN FEAR SEXUAL MISCONDUCT, ASSAULT, AND RAPE. By: Jackie Fielding, Volume 103 Staff Member “Why do men feel threatened by women?” . . . “They’re afraid women will laugh at them.” . . . “Why do women feel threatened by men?” . . . “They’re afraid of being killed.” Second Words: lawreview - Minnesota Law Review - [Hi, Fidelity](https://minnesotalawreview.org/2018/11/25/hi-fidelity/) - ‘Hi, Fidelity’: States’ Rights to Control Faithless Electors By: Tim Lovett, Volume 103 Staff Member Introduction The 2016 election had the most faithless electors of any presidential election in modern American history, with seven electors casting votes for individuals different from the candidates who won the electors’ respective state’s popular votes.[1] While previous elections have featured lawreview - Minnesota Law Review - [Cy Pres-ing for Funding](https://minnesotalawreview.org/2018/11/21/cy-pres-ing-for-funding/) - Cy Pres-ing for Funding: How Frank v. Gaos May Affect the Funding of Minnesota’s Legal Services By: Lucas Curtis, Volume 103 Staff Member Legal Aid organizations provide free, essential legal services to low-income clients;[1] however, free services come at a price. Due to diminished resources and a high demand for their services, Legal Aid organizations frequently have to lawreview - Minnesota Law Review - [Scoot Back](https://minnesotalawreview.org/2018/11/07/scoot-back/) - SCOOT BACK: ADDRESSING THE CHALLENGES POSED BY THE SUDDEN EMERGENCE OF THE E-SCOOTER INDUSTRY By: Alec Minea, Volume 103 Staff Member The scooter, the trendiest[1] and least efficient[2] transportation method of the early 2000s, experienced a glorious, evolutionary resurgence in 2018. Seemingly overnight, cities across the United States became inundated with souped-up, electric versions of their turn-of-the-century lawreview - Minnesota Law Review - [Another ACA Lawsuit](https://minnesotalawreview.org/2018/11/03/another-aca-lawsuit-pre-existing-conditions-the-doj-and-severability-in-texas-v-u-s-2/) - ANOTHER ACA LAWSUIT: PRE-EXISTING CONDITIONS, THE DOJ, AND SEVERABILITY IN TEXAS V. U.S. By: Noah Steimel, Volume 103 Staff Member I. INTRODUCTION On June 7, 2018, the Department of Justice (DOJ) filed a brief arguing that the courts should strike down the Affordable Care Act (ACA)’s protections for those with pre-existing conditions.[1]The underlying lawsuit, Texas v. U.S., lawreview - Minnesota Law Review - [Sticks And Stones And Permanent Muzzles](https://minnesotalawreview.org/2018/10/31/sticks-and-stones-and-permanent-muzzles-the-first-amendment-and-the-constitutionality-of-permanent-injunctions-on-future-speech-after-defamation-trials/) - STICKS AND STONES AND PERMANENT MUZZLES: THE FIRST AMENDMENT AND THE CONSTITUTIONALITY OF PERMANENT INJUNCTIONS ON FUTURE SPEECH AFTER DEFAMATION TRIALS By: Connor Shaull, Volume 103 Staff Member A second chance is vital, especially regarding what we say. Indeed, an apology has followed some of the most notorious words humans have ever spoken.[1] Consequently, some lawreview - Minnesota Law Review - [Matchmaking Mishaps](https://minnesotalawreview.org/2018/10/31/matchmaking-mishaps-ncaa-amateurism-and-collegiate-esports-2/) - MATCHMAKING MISHAPS: NCAA AMATEURISM AND COLLEGIATE ESPORTS By: Michael Arin,† Volume 103 Staff Member On August 15, 2017, ESPN announced that the National Collegiate Athletic Association (“NCAA”) is formally investigating its role in the collegiate esports[1] domain.[2] By late November 2017, the NCAA contracted with a Chicago-based marketing and consulting firm to “further its exploration lawreview - Minnesota Law Review - [To Have and To Hold Regardless of Consent?](https://minnesotalawreview.org/2018/04/03/to-have-and-to-hold/) - TO HAVE AND TO HOLD REGARDLESS OF CONSENT?: WHY THE MODEL PENAL CODE’S SEXUAL ASSAULT PROVISIONS SHOULD NOT INCLUDE AN AFFIRMATIVE DEFENSE FOR SPOUSES AND INTIMATE PARTNERS By: Grace Quintana, Volume 102 Staff Member The fight for the right to control the terms of marital intercourse can be traced as far back as the first lawreview - Minnesota Law Review - [Bush v. Gore](https://minnesotalawreview.org/2018/04/01/bush-v-gore/) - BUSH V. GORE: CAN THE SUPREME COURT’S MOST POLITICAL CASE PREVENT RUSSIAN HACKING OF VOTING MACHINES? By: Jakob Brecheisen, Volume 102 Staff Member Bush v. Gore[1] is nothing short of notorious.[2] Despite Justice Antonin Scalia admonishing Americans to “get over it,”[3] many continue to believe that Bush v. Gore is the prime example of a lawreview - Minnesota Law Review - [The Gymnasts' Army in the Age of Viral Media](https://minnesotalawreview.org/2018/03/06/the-gymnasts-army/) - THE GYMNASTS’ ARMY IN THE AGE OF VIRAL MEDIA: VICTIM IMPACT STATEMENTS’ CULTURE-SHIFTING POTENTIAL By: Julia Wolfe, Volume 102 Staff Member “I thought that training for the Olympics would be the hardest thing that I would ever have to do. But, in fact, the hardest thing I would ever have to do is process that lawreview - Minnesota Law Review - [CFPB's Independent Director](https://minnesotalawreview.org/2018/03/06/the-cfpb/) - THE CFPB’S INDEPENDENT DIRECTOR STRUCTURE SURVIVES—FOR NOW By: Nick Kaylor, Volume 102 Staff Member The Consumer Financial Protection Bureau (“CFPB”) received a small victory on January 31, 2018, when an en banc panel of the D.C. Court of Appeals upheld 7-3 the agency’s single director structure as constitutional.[1] PHH Corporation (“PHH”)—the mortgage lender who brought lawreview - Minnesota Law Review - [The H-4 Dreamers](https://minnesotalawreview.org/2018/03/05/the-h-4-dreamers/) - THE H-4 DREAMERS: PROVIDING A FUTURE FOR THE CHILDREN OF H-1B VISA HOLDERS By: Frances Fink, Volume 102 Staff Member In September 2017, President Donald Trump ordered an end to the Deferred Action for Childhood Arrivals program (“DACA”).[1] The program provided protection from deportation for hundreds of thousands of undocumented young people brought into the lawreview - Minnesota Law Review - [From Bulbs to Bitcoins](https://minnesotalawreview.org/2018/03/05/from-bulbs-to-bitcoins/) - FROM BULBS TO BITCOINS: THE LEGALITY OF CORPORATE BANKING RESTRICTIONS ON CREDIT CARD CRYPTO-CURRENCY PURCHASES By: Peter G. Economou, Vol. 102 Staff Member The modern world is one of exponential technological innovation and growth. From drone delivery services and autonomous vehicles, to artificially intelligent personal assistants capable of becoming either your closest ally or immortal lawreview - Minnesota Law Review - [Waiting on You, SEC](https://minnesotalawreview.org/2018/03/04/waiting-on-you-sec/) - WAITING ON YOU, SEC: ARE CRYPTOCURRENCIES SECURITIES OR NOT? By: William Paterson, Volume 102 Staff Member Love it or hate it, cryptocurrency[1] is likely here to stay. Although confusing to many, entirely unknown to some, or disdained by others, cryptocurrencies have found a niche.[2] This niche has led to popularity and like other commodities,[3] such lawreview - Minnesota Law Review - [Net Neutrality](https://minnesotalawreview.org/2018/02/28/net-neutrality/) - NET NEUTRALITY: A SOLUTION TO A PROBLEM OR A SOLUTION IN SEARCH OF A PROBLEM? By: Tash Bottum, Volume 102 Staff Member The internet is everywhere. The last two decades have seen extraordinary growth in internet use, investment and innovation.[1] In order to ensure continual growth, the Federal Communications Commission (“FCC”) has committed itself to lawreview - Minnesota Law Review - [Clearinghouses](https://minnesotalawreview.org/2018/02/28/clearinghouses/) - CLEARING HOUSES: THE ROAD MORE TRAVELLED[1] By: James Patterson, Volume 102 Staff Member Imagine two roads running through a rural county. One is ungraded, dark, and winding. The other is straight, well lit, and nicely paved. Imagine also that the county’s roads have tolls that are levied based on the dangerousness of the type of lawreview - Minnesota Law Review - [Of T-Shirts and Tea Parties](https://minnesotalawreview.org/2018/02/27/of-t-shirts-and-tea-parties/) - OF T-SHIRTS AND TEA PARTIES: MINNESOTA VOTERS ALLIANCE V. MANSKY AND THE MEANING OF “POLITICAL” By: David A. LaBerge, Volume 102 Staff Member In Minnesota, wearing political clothing to a polling place can land you a petty misdemeanor and keep you from casting your vote.[1] At least for now. On February 28th, 2018, the United lawreview - Minnesota Law Review - [Unlocking Fifth Amendment Considerations in State v. Diamond](https://minnesotalawreview.org/2018/02/23/unlocking-fifth-amendment-considerations/) - UNLOCKING FIFTH AMENDMENT CONSIDERATIONS IN STATE V. DIAMOND: WHY REMOVING THE FINGERPRINT PASSWORD CAPABILITY ON YOUR CELL PHONE IS IN YOUR BEST INTEREST By: Jordan Dritz, Volume 102 Staff Member In the age of smart phones, people regularly protect content on their devices through passcodes. Modern cellphones often offer the option of a fingerprint password lawreview - Minnesota Law Review - [What Trump Can Learn from Tricky Dick](https://minnesotalawreview.org/2018/02/20/what-trump-can-learn-from-tricky-dick/) - WHAT TRUMP CAN LEARN FROM TRICKY DICK: AN OVERVIEW OF WHETHER THE PRESIDENT CAN FIRE SPECIAL COUNSEL ROBERT MUELLER By: Robert Wild, Volume 102 Staff Member It has been rumored over the past few months that President Donald Trump has considered firing Special Counsel Robert Mueller.[1] Those rumors were all but officially confirmed by the lawreview - Minnesota Law Review - ["O Vengeance!—Why What an Ass Am I?"](https://minnesotalawreview.org/2018/02/20/o-vengeance-why-what-an-ass-am-i/) - “O VENGEANCE!—WHY WHAT AN ASS AM I?”[1]: LOOKING PAST THE REVENGE PLOT OF THE AT&T-TIME WARNER MERGER By: Derek Waller, Volume 102 Staff Member Even before the Department of Justice (DOJ) sued to block the AT&T’s merger with Time Warner (CNN’s parent company), reporters and pundits speculated that President Trump’s notorious rivalry with CNN could lawreview - Minnesota Law Review - [Too Much Information?](https://minnesotalawreview.org/2018/02/16/too-much-information/) - TOO MUCH INFORMATION? BALANCING DISCLOSURE AND PRIVACY INTERESTS IN MAKING DOMESTIC ABUSE A MATTER OF PUBLIC RECORD By: April Will, Volume 102 Staff Member In the modern age of internet and “app” dating, anyone can fire up a Google search and evaluate a potential partner. Savvy searchers can uncover anything from their love interest’s prior lawreview - Minnesota Law Review - [An Illusory Sanctuary](https://minnesotalawreview.org/2018/02/14/an-illusory-sanctuary/) - AN ILLUSORY SANCTUARY: HOW IMMIGRATION LAW AND POLICY FAIL TO PROTECT IMMIGRANTS FROM DEPORTATION By: Kayla Hoel, Volume 102 Staff Member At two in the morning on October 24, 2017, an ambulance carrying a ten-year-old child to an emergency surgery in Corpus Christi, Texas, was stopped at an immigration checkpoint.[1] The child, Rosa Maria Hernandez, lawreview - Minnesota Law Review - [The Final Court to the Split](https://minnesotalawreview.org/2018/02/14/the-final-court-to-the-split/) - THE FINAL COURT TO THE SPLIT: COULD IN RE ARCHDIOCESE GIVE THE EIGHTH CIRCUIT A CHANCE TO WEIGH IN ON NONCONSENSUAL THIRD-PARTY RELEASES IN CHAPTER 11 BANKRUPTCY PROCEEDINGS? By: Emily Muirhead McAdam, Volume 102 Staff Member The United States Bankruptcy Court for the District of Minnesota weighed in recently on a long-running debate in Chapter lawreview - Minnesota Law Review - [(In)definite Detention](https://minnesotalawreview.org/2018/02/12/indefinite-detention/) - (IN)DEFINITE DETENTION: JENNINGS AND THE BACKWARDS DETENTION SYSTEM FOR NON-CITIZENS SEEKING RELIEF By: Nathaniel Gier, Volume 102 Staff Member In the current fiscal year, there are 667,839 immigration cases pending,[1] and the average wait time for cases pending in immigration court was 691 days in 2017.[2] There are also over 352,000 immigration detainees in the lawreview - Minnesota Law Review - [Jesner v. Arab Bank](https://minnesotalawreview.org/2018/02/12/jesner-v-arab-bank/) - JESNER v. ARAB BANK: CORPORATE LIABILITY AND THE “TOUCH AND CONCERN” TEST By: Anthony Ufkin, Volume 102 Staff Member In Jesner v. Arab Bank,[1] the Supreme Court will likely answer the question of whether corporations may be held liable for alleged human rights violations under the Alien Tort Statute (ATS).[2] The ATS grants non-citizens access lawreview - Minnesota Law Review - [Cruz-Guzman and the Rise of Charter Schools](https://minnesotalawreview.org/2018/02/11/cruz-guzman-and-the-rise-of-charter-schools/) - Cruz-Guzman and the Rise of Charter Schools: How Will the Minnesota Supreme Court Respond to the Resegregation of Schools in the Twin Cities? By: Charles W. Niemann, Volume 102 Staff Member A recent analysis by the Associated Press showed that charter schools are playing a significant role in the resegregation of American schools.[1] Charter schools lawreview - Minnesota Law Review - [Is Simple Better?](https://minnesotalawreview.org/2018/02/05/is-simple-better/) - IS SIMPLE BETTER?: THE ANSWER TO PARTISAN GERRYMANDERING MAY LIE WITH BENISEK V. LAMONE RATHER THAN GILL V. WHITFORD By: Torie Abbott Watkins, Volume 102 Staff Member In today’s political discourse it is an all but impossible challenge to get Democrats and Republicans to agree on anything. There are few more politicized topics than that lawreview - Minnesota Law Review - [Let's Talk About Sex[ual Harassment]](https://minnesotalawreview.org/2018/01/24/lets-talk-about-sexual-harassment/) - LET’S TALK ABOUT SEX[UAL HARASSMENT]: THE INADEQUACY OF LEGAL PROTECTIONS FOR WORKPLACE SEXUAL HARASSMENT By: Sarah DeWitt, Volume 102 Staff Member Sexual harassment is not a new phenomenon.[1] Sexual harassment affects not only young woman in subservient positions,[2] but also in professional careers.[3] Sexual harassment is not confined to Hollywood, but occurs in media outlets, lawreview - Minnesota Law Review - [After Marriage Equality](https://minnesotalawreview.org/2018/01/22/after-marriage-equality/) - AFTER MARRIAGE EQUALITY: LGBT NONDISCRIMINATION LAWS IN MASTERPIECE CAKESHOP By: Joshua Preston, Volume 102 Staff Member Obergefell v. Hodges (2015) was a watershed moment in extending the full benefits of society to members of the LGBT community.[1] Though the freedom to marry was won, Obergefell failed to address the broader issue of whether nondiscrimination protections lawreview - Minnesota Law Review - [Armstrong v. Exceptional Child Center](https://minnesotalawreview.org/2017/12/22/armstrong-v-exceptional-child-center/) - ARMSTRONG V. EXCEPTIONAL CHILD CENTER: WHO SHOULD ENFORCE MEDICAID EQUAL ACCESS? By: Jessica Wheeler, Volume 102 Staff Member Deamonte Driver, a twelve-year-old Medicaid beneficiary, died from an untreated tooth abscess when the infection spread to his brain.[1] His death could have been prevented had his tooth been removed months earlier when it first started to lawreview - Minnesota Law Review - [What the Tax Bill Means for Students](https://minnesotalawreview.org/2017/12/07/what-the-tax-bill-means-for-students/) - WHAT THE "TAX CUTS AND JOBS ACT" MEANS FOR STUDENTS: DO WE WANT INCENTIVES OR SIMPLIFICATION? By: Melanie Pulles Benson, Volume 102 Staff Member The new House tax reform bill, the “Tax Cuts and Jobs Act” (“Act”), significantly departs from the current tax code.[1] The Act alters the tax brackets, lowers the corporate tax rate lawreview - Minnesota Law Review - [Losing Bigly](https://minnesotalawreview.org/2017/12/01/losing-bigly/) - LOSING BIGLY: HOW THE ACLU’S COMPLAINT FORCED THE U.S. GOVERNMENT TO RELEASE ROSA MARIA By: David Racine, Volume 102 Staff Member On October 25, 2017, U.S. Customs and Border Protection (CBP) detained Rosa Maria Hernandez, a ten-year-old child with cerebral palsy who was recovering from an emergency surgery she endured a day prior.[1] National and lawreview - Minnesota Law Review - [Silent and Ambiguous](https://minnesotalawreview.org/2017/11/29/silent-and-ambiguous/) - SILENT AND AMBIGUOUS: THE SUPREME COURT DODGES CHEVRON AND LENITY IN ESQUIVEL-QUINTANA V. SESSIONS By: David Hahn, Volume 102 Staff Member[1] Twenty-year-old Juan Esquivel-Quintana—a lawful permanent resident from Mexico—had consensual sex with his sixteen-year-old girlfriend.[2] This violated California’s statutory rape statute,[3] and he pled no contest in state court.[4] The Immigration and Nationality Act makes lawreview - Minnesota Law Review - [Big Brother DHS](https://minnesotalawreview.org/2017/11/28/big-brother-dhs/) - BIG BROTHER[1] DHS: IMMIGRANT SOCIAL MEDIA DATA COLLECTION AND THE CONSTITUTIONAL CHALLENGES IT FACES By: Paul Baxter, Volume 102 Staff Member With the advent and growth of social media, more and more of us put aspects of our lives online for all to see.[2] Many do not understand the implications of this until something goes lawreview - Minnesota Law Review - [Carpenter, Your iPhone, and the Fourth Amendment](https://minnesotalawreview.org/2017/11/21/carpenter-iphone-fourth-amendment/) - CARPENTER, YOUR iPHONE, AND THE FOURTH AMENDMENT By: Peter Estall, Volume 102 Staff Member A man robs a string of electronics stores. While investigating the robberies, the government arrests several suspects, one of whom confesses to the robberies.[1] The robber gives his cellphone number to the police; the FBI review his call records, and obtain lawreview - Minnesota Law Review - [Prison for the Innocent](https://minnesotalawreview.org/2017/11/14/prison-for-the-innocent/) - PRISON FOR THE INNOCENT: THE ‘NEWLY DISCOVERED EVIDENCE’ STANDARD THROUGH THE LENS OF NASH V. RUSSELL By: Alexa Ely, Volume 102 Staff Member Since 1989, there have been over 2,120 exonerations with nearly 18,450 years lost in prison by innocent men and women in the United States criminal justice system.[1] Wrongful convictions can stem from lawreview - Minnesota Law Review - ["Transgender Need Not Apply"](https://minnesotalawreview.org/2017/11/12/transgender-need-not-apply/) - ‘TRANSGENDER NEED NOT APPLY’[1]: HOW THE SESSIONS MEMO THREATENS ESSENTIAL WORKPLACE PROTECTIONS FOR TRANSGENDER INDIVIDUALS By: Libby Bulinski, Volume 102 Staff Member On October 4th, 2017, U.S. Attorney General Jeff Sessions issued a memorandum stating that Title VII of the 1964 Civil Rights Act does not prohibit discrimination based on gender identity in the workplace.[2] lawreview - Minnesota Law Review - [Scandal in the NCAA](https://minnesotalawreview.org/2017/11/12/scandal-in-the-ncaa/) - SCANDAL IN THE NCAA: A FIDUCIARY TALE By: Andrew Escher, Volume 102 Staff Member Common wisdom holds that sports bring people together. In circumstances as varied as a Texas high school at a Friday night football game or an entire country during the Olympics, athletics gives disparate groups of people reason to find common cause. lawreview - Minnesota Law Review - [Investigating Juror Misconduct in Minnesota](https://minnesotalawreview.org/2017/11/08/investigating_juror_misconduct/) - INVESTIGATING JUROR MISCONDUCT IN MINNESOTA By: Melanie Johnson, Volume 102 Staff Member In the American criminal justice system, jurors are expected to be unbiased. [1] It’s an issue most often litigated pre-trial during the jury selection process as counsel for the defendant and state grapple over diversity of the jury venire or defects in voir lawreview - Minnesota Law Review - [Started from the Bottom](https://minnesotalawreview.org/2017/11/06/started-from-the-bottom/) - STARTED FROM THE BOTTOM: WHAT DRAKE’S FAIR USE WIN MEANS TO THE FUTURE OF MUSIC SAMPLING By: Veena Tripathi, Volume 102 Staff Member True, just like it’s probably easier to snap a picture with that camera [looks at camera] than it is to actually paint a picture. But what the photographer is to the painter lawreview - Minnesota Law Review - [Your Car Is Watching You](https://minnesotalawreview.org/2017/11/02/your-car-is-watching-you/) - YOUR CAR IS WATCHING YOU: SHOULD THE POLICE NEED A WARRANT TO FIND OUT WHAT IT KNOWS? By: Clayton Carlson, Volume 102 Staff Member Out of all the things that people own that could be spying on them, they seldom suspect their cars. If you have purchased your car within the past few years, however, lawreview - Minnesota Law Review - [Patent Apocalypse](https://minnesotalawreview.org/2017/10/29/patent-apocalypse/) - PATENT APOCALYPSE: WILL OIL STATES RESURRECT THE VICTIMIZED PATENT RIGHTS OF IPR? By: Clint Maynard, Volume 102 Staff Member Where does a patent go to die? Some patent holders might say the Patent Trials and Appeals Board (PTAB). Since the enactment of the Leahy-Smith America Invents Act [1] (AIA), patent holders have seen the rise lawreview - Minnesota Law Review - ["Uber" Uncertainty](https://minnesotalawreview.org/2017/10/25/uber-uncertainty/) - “UBER” UNCERTAINTY: WHY COURTS ARE ILL-EQUIPPED TO DETERMINE COMPENSABILITY IN A GIG ECONOMY By: Joshua Greenberg, Volume 102 Staff Member In an increasingly digital world, people are finding new ways to earn a living. Specifically, the “gig economy,” also known as “on-demand employment,” continues to “grow[] at a rapid rate along with the supply of lawreview - Minnesota Law Review - [Alabama Prisoners' Cry for Help](https://minnesotalawreview.org/2017/10/25/alabama-prisoners-cry-for-help/) - A COURT HEARS ALABAMA PRISONERS’ CRY FOR HELP By: J.D. Davis, Volume 102 Staff Member In June of 2017, Judge Myron Thompson issued his second major opinion in a three-part class action lawsuit.[1] This 302-page ruling came out of a massive 2014 lawsuit filed by inmates held by the Alabama Department of Corrections (ADOC).[2] In lawreview - Minnesota Law Review - [The Algorithm Made Me Do It and Other Bad Excuses](https://minnesotalawreview.org/2017/05/17/the-algorithm-made-me-do-it-and-other-bad-excuses/) - THE ALGORITHM MADE ME DO IT AND OTHER BAD EXCUSES: UPHOLDING TRADITIONAL LIABILITY PRINCIPLES FOR ALGORITHM-CAUSED HARM By: Rebecca J. Krystosek, Volume 101 Staff Member As the outputs of algorithms increasingly pervade our everyday lives—from wayfinding apps and search engine autofill results to investment advice and self-driving cars—we must also come to terms with who lawreview - Minnesota Law Review - [All (Privacy) Is Not Lost](https://minnesotalawreview.org/2017/05/02/all-privacy-is-not-lost/) - ALL (PRIVACY) IS NOT LOST: ATTORNEYS GENERAL AND PRIVACY PROTECTION By: Mitchell Noordyke, Volume 101 Staff Member In March, the House and Senate voted to prevent portions of the FCC Privacy Rule from going into effect.[1] This rule would have required more demanding protocol from broadband internet access service and telecommunications service providers to ensure lawreview - Minnesota Law Review - [Pot, Printz, and Preemption](https://minnesotalawreview.org/2017/04/26/pot-printz-and-preemption/) - POT, PRINTZ, AND PREEMPTION: WHY STATES CAN "JUST SAY NO" TO JEFF SESSIONS AND THE CONTROLLED SUBSTANCES ACT By: Franklin R. Guenthner, Volume 101 Staff Member Attorney General Jeff Sessions is not a fan of marijuana. Before assuming his role at the Department of Justice, the former Senator from Alabama remarked in April of 2016 lawreview - Minnesota Law Review - [Keefe v. Adams](https://minnesotalawreview.org/2017/04/25/keefe-v-adams/) - KEEFE V. ADAMS: OVERREGULATING OFF-CAMPUS SPEECH UNDER PROFESSIONAL CODES OF CONDUCT By: Maximilian Hall, Volume 101 Staff Member The Court of Appeals for the Eighth Circuit recently held that a student’s off-campus speech, which violated the American Nursing Association Code of Ethics, could be regulated by a nursing program as an academic issue.[1] A subsequent lawreview - Minnesota Law Review - [Protecting Senior Citizens from Their Mail](https://minnesotalawreview.org/2017/04/24/protecting-senior-citizens-from-their-mail/) - Protecting Senior Citizens from Their Mail: The Growing Threat of Direct Mail Solicitation at Senior Living Communities By: Mike Sikora, Volume 101 Staff Member Many of us hear stories of scammers targeting the elderly: fake grandsons trapped in jail, fake nieces stranded at airports, and fake friends offering a chance to make a quick buck. lawreview - Minnesota Law Review - [Much Ado About Nothing](https://minnesotalawreview.org/2017/04/22/much-ado-about-nothing/) - MUCH ADO ABOUT NOTHING: ELIMINATING CHEVRON DEFERENCE WOULD LIKELY HAVE A MINIMAL IMPACT ON SUPREME COURT JURISPRUDENCE By: Jessica Sharpe, Volume 101 Staff Member Neil Gorsuch’s nomination to the Supreme Court was confirmed by the Senate in recent weeks.[1] Throughout his confirmation hearings, his views on Chevron deference[2] sparked controversy.[3] This Post argues that the lawreview - Minnesota Law Review - [Educational Privileges](https://minnesotalawreview.org/2017/04/22/educational-privileges/) - EDUCATIONAL PRIVILEGES: A PERPSECTIVE ON U.S. DEPARTMENT OF EDUCATION REGULATIONS BANNING PRE-DISPUTE, MANDATORY ARBITRATION IN UNIVERSITIES By: Kate Kelzenberg, Volume 101 Staff Member During the Senate confirmation hearing of Supreme Court nominee Neil Gorsuch, Sen. Al Franken (D-Minn.) questioned the nominee on his opinions about arbitration as a form of dispute resolution.[1] Gorsuch conceded that, lawreview - Minnesota Law Review - [Inaction of Mercy](https://minnesotalawreview.org/2017/04/19/inaction-of-mercy/) - INACTION OF MERCY: MINNESOTA’S PARDON PROBLEM By: Devin Driscoll, Volume 101 Staff Member The pardon power of the President[1]—called the “benign prerogative” by Hamilton[2]—has long attracted scholarly attention.[3] The granting of executive commutations and pardons at the federal level had been in steep decline: President Carter granted 563 in his single term; the senior President lawreview - Minnesota Law Review - [Looking Back at the FCC's Privacy Rules](https://minnesotalawreview.org/2017/04/18/looking-back-at-fcc-privacy-rules/) - LOOKING BACK AT THE FCC'S PRIVACY RULES By: Ronald Waclawski, Volume 101 Staff Member On October 27, 2016, the Federal Communication Commission (FCC) adopted a rule designed to protect consumer information by requiring telecommunication carriers to protect the confidentiality of customer information.[1] On March 23, 2017, the Senate voted 50-48 to prevent the entirety of lawreview - Minnesota Law Review - [Placing Religion Above All Else](https://minnesotalawreview.org/2017/04/15/placing-religion-above-all-else/) - PLACING RELIGION ABOVE ALL ELSE: RFRA AND THE LEAKED DRAFT OF PRESIDENT TRUMP'S PROPOSED EXECUTIVE ORDER ON RELIGIOUS FREEDOM By: Kristen Mishler, Volume 101 Staff Member In January of this year, The Nation and Reveal obtained copies of a draft proposed executive order under consideration by President Trump.[1] Although several of President Trump’s executive orders lawreview - Minnesota Law Review - [Obama Cared](https://minnesotalawreview.org/2017/04/06/obama-cared/) - OBAMA CARED: THE IMPORTANCE OF ESSENTIAL HEALTH BENEFITS IN THE AFFORDABLE CARE ACT By: Jesse Goldfarb, Volume 101 Staff Member A key provision in the Affordable Care Act (ACA) mandates that certain types of benefits be included in any healthcare insurance plan on the state and federal exchanges.[1] While there are no specific benefits required, lawreview - Minnesota Law Review - [Cats and Dogs and the Takings Clause](https://minnesotalawreview.org/2017/04/03/cats-and-dogs-and-the-takings-clause/) - CATS AND DOGS AND THE TAKINGS CLAUSE: BALANCING THE REGULATORY TAKINGS DOCTRINE AND INNOVATION IN THE SEVENTH CIRCUIT By: Austin J. Spillane, Volume 101 Staff Member We are currently living through an intriguing period of time that is marked by the digitization of many facets of the traditionally non-digital economy—a period dubbed by one commentator as “the lawreview - Minnesota Law Review - [The Future of Class Actions](https://minnesotalawreview.org/2017/03/30/the-future-of-class-actions/) - THE FUTURE OF CLASS ACTIONS By: Caroline Bressman, Volume 101 Staff Member Far from being the exception to individual adversarial suits in modern U.S. litigation,[1] an early prototype of class action litigation was common in medieval England.[2] During a period shaped by strong group cultures, judges largely did not question group litigation.[3] The early U.S. lawreview - Minnesota Law Review - [Running from the Law Doesn't Mean You Broke It](https://minnesotalawreview.org/2017/03/29/running-from-the-law-doesnt-mean-you-broke-it/) - RUNNING FROM THE LAW DOESN’T MEAN YOU BROKE IT: COMMONWEALTH V. WARREN CONSIDERS RACE WHEN DETERMINING REASONABLE SUSPICION By: Vanessa R. Colletti, Volume 101 Staff Member Jimmy Warren is probably just grateful to be free; however, his case presents a greater opportunity for freedom for people of color everywhere. Commonwealth v. Warren[1] is a notable lawreview - Minnesota Law Review - [Do Two Wrongs Make a Right?](https://minnesotalawreview.org/2017/03/28/do-two-wrongs-make-a-right/) - DO TWO WRONGS MAKE A RIGHT? By: Mitchell Ness, Volume 101 Staff Member On April 19th, the Supreme Court will hear arguments in Weaver v. Massachusetts.[1] The case concerns an intersection of two constitutional guarantees, the guarantee to the effective assistance of counsel and the guarantee to a fair trial.[2] In Weaver the Supreme Court lawreview - Minnesota Law Review - [The (Mad) Fight to Legalize Sports Betting in New Jersey](https://minnesotalawreview.org/2017/03/24/fight-to-legalize-sports-betting/) - THE (MAD) FIGHT TO LEGALIZE SPORTS BETTING IN NEW JERSEY By: Bradley Machov, Volume 101 Staff Member New Jersey wants to legalize sports betting within its borders.[1] In 1992, Congress, with the Professional and Amateur Sports Protection Act of 1992 (“PASPA”), made it clear that despite the potential revenue legalized sports betting could generate, “the lawreview - Minnesota Law Review - [Recent State Legislation Seeks to Limit Disruptive Protests](https://minnesotalawreview.org/2017/03/23/recent-state-legislation-seeks-to-limit-disruptive-protests/) - RECENT STATE LEGISLATION SEEKS TO LIMIT DISRUPTIVE PROTESTS By: Jorgen Lervick, Volume 101 Staff Member On January 21, 2017, just one day after President Donald Trump was sworn in as the forty-fifth President of the United States of America, more than two million people in cities all across the country and the world gathered to lawreview - Minnesota Law Review - [Can President Trump Be Sued for Defamation Because of His Personal Tweets?](https://minnesotalawreview.org/2017/03/21/president-trump-personal-tweets/) - CAN PRESIDENT TRUMP BE SUED FOR DEFAMATION BECAUSE OF HIS PERSONAL TWEETS? By: Alex Walsdorf, Volume 101 Staff Member If you happen to visit President Trump’s private Twitter page,[1] you will notice his affinity for tweeting. Some of his tweets, at least on their face, promote respectful discourse and are fitting of the office.[2] Other lawreview - Minnesota Law Review - [Hiring Shouldn't Give License for Firing](https://minnesotalawreview.org/2017/03/09/hiring-shouldnt-give-license-for-firing/) - HIRING SHOULDN’T GIVE LICENSE FOR FIRING: AFFORDING THE SAME ACTOR INFERENCE APPROPRIATE WEIGHT By: Bailey Drexler, Volume 101 Staff Member In 1991 the Fourth Circuit Court of Appeals articulated what would come to be known as the “same actor inference” in the context of employment discrimination cases. In Proud v. Stone,[1] the court announced that lawreview - Minnesota Law Review - [See You in Court](https://minnesotalawreview.org/2017/03/08/see-you-in-court/) - SEE YOU IN COURT: ANALYZING JUDGE GORSUCH’S VIEWS ON THE SEPARATION OF POWERS By: Nathan Rice, Volume 101 Staff Member Judge Neil M. Gorsuch has been cast into a political warzone since his nomination on January 31 to fill the late Antonin Scalia’s now long-vacant seat on the Supreme Court.[1] As he prepares for his lawreview - Minnesota Law Review - [Comparing and Contrasting the Legal Challenges to President Trump's Travel Ban](https://minnesotalawreview.org/2017/03/01/comparing-and-contrasting-legal-challenges-trump-travel-ban/) - COMPARING AND CONTRASTING THE LEGAL CHALLENGES TO PRESIDENT TRUMP’S TRAVEL BAN By: Richard Canada, Volume 101 Staff Member In the whirlwind first month of Donald Trump’s tenure as President, perhaps no issue has been as controversial or received as much attention as the Executive Order banning travel to the United States from a group of lawreview - Minnesota Law Review - [Legal Analysis of Trump Executive Order on Refugees](https://minnesotalawreview.org/2017/02/27/trump-executive-order/) - LEGAL ANALYSIS OF TRUMP EXECUTIVE ORDER ON REFUGEES By: Stephen Meili, Clinical Professor in Law, University of Minnesota Law School† On January 27, 2017, President Trump issued an Executive Order (“Order”) curtailing entry to the U.S. by immigrants, non-immigrants and refugees in three significant ways: (1) Creating a 120-day moratorium on the U.S. refugee resettlement lawreview - Minnesota Law Review - [Defying Conservationist Ethics](https://minnesotalawreview.org/2017/02/24/defying-conservationist-ethics/) - DEFYING CONSERVATIONIST ETHICS: A LOOK AT PRESIDENT TRUMP'S ENERGY PLAN By Karrah Johnston, Volume 101 Staff Member Over the course of his presidential campaign, President Donald Trump routinely championed former President Theodore Roosevelt’s conservation legacy. Trump continually asserted that he would follow in the “great environmentalist[’s]” footsteps by bolstering domestic production of energy resources such lawreview - Minnesota Law Review - [Microsoft Corp. v. United States](https://minnesotalawreview.org/2017/02/23/microsoft-corp-v-united-states/) - MICROSOFT CORP. V. UNITED STATES: SHOULD CONGRESS REVISE THE STORED COMMUNICATIONS ACT? By: Adam Frudden, Volume 101 Staff Member On July 14, 2016, the Court of Appeals for the Second Circuit issued its ruling in the case of Microsoft Corp. v. United States.[1] The long-awaited decision pertaining to the scope of the Stored Communications Act lawreview - Minnesota Law Review - [The Presidential Clemency Power and Chelsea Manning](https://minnesotalawreview.org/2017/02/14/the-presidential-clemency-power-and-chelsea-manning/) - THE PRESIDENTIAL CLEMENCY POWER AND CHELSEA MANNING: AN ORIGINALIST PERSPECTIVE By: Caitlin Opperman, Volume 101 Staff Member On his last day in office, President Obama commuted the sentences of 330 people serving time for drug offenses, bringing the total number of commutations issued throughout his presidency to 1,715.[1] Issued mostly throughout his second term, President lawreview - Minnesota Law Review - [Unprecedented](https://minnesotalawreview.org/2017/02/01/unprecedented/) - UNPRECEDENTED: PRESIDENT TRUMP’S DIVIDED LOYALTIES By: Emily Atmore, Volume 101 Staff Member Donald Trump’s prominence as an international businessman has raised widespread concerns about conflicts of interest in his newest venture: as President of the United States.[1] Legal experts have relied on a little known section of the Constitution, the Emoluments Clause, in calling on lawreview - Minnesota Law Review - [Reading the Tea Leaves of Pretextual Protectionism](https://minnesotalawreview.org/2017/01/26/reading-the-tea-leaves-of-pretextual-protectionism/) - READING THE TEA LEAVES OF PRETEXTUAL PROTECTIONISM: THE FUTURE OF THE U.S.-CUBA RELATIONSHIP By: Charles Barrera Moore, Volume 101 Lead Online Editor In the wake of the death of Cuban dictator Fidel Castro, both President Obama and President Trump acknowledged that the United States is faced with a crucial moment in its relationship with the lawreview - Minnesota Law Review - [When Food Turns Deadly](https://minnesotalawreview.org/2017/01/25/when-food-turns-deadly/) - WHEN FOOD TURNS DEADLY: CRIMINAL LIABILITY FOR RESTAURATEURS THAT DISREGARD PATRONS FOOD ALLERGIES By: Taylor Gess, Volume 101 Staff Member On January 28, 2016, the mother of a five-year-old girl used Panera’s online ordering system to purchase a grilled cheese sandwich for her peanut-allergic daughter.[1] The order’s special instructions section stated “peanut allergy is having lawreview - Minnesota Law Review - [Elon Take the Wheel](https://minnesotalawreview.org/2017/01/24/elon-take-the-wheel/) - ELON TAKE THE WHEEL: MAJOR CHALLENGES THAT AUTONOMOUS CARS WILL PRESENT TO THE LEGAL SYSTEM By: Stephen Maier, Volume 101 Staff Member In May 2016, 40-year-old Joshua Brown was driving a Tesla Model S in “Autopilot mode” when a semi turned in front of him.[1] The self-driving computer did not recognize the truck against the lawreview - Minnesota Law Review - [Re-Introducing "Stop and Frisk" or Revisiting It?](https://minnesotalawreview.org/2017/01/23/re-introducing-stop-and-frisk-or-revisiting-it/) - RE-INTRODUCING “STOP AND FRISK” OR REVISITING IT? By: Anabel Cassady, Volume 101 Staff Member On the evening of August 20, 2008, Leroy Downs was stopped by two plainclothes officers outside his home while making a phone call to a friend.[1] Downs was a black male in his mid-thirties living in Staten Island and working as lawreview - Minnesota Law Review - [DACA on the Docket](https://minnesotalawreview.org/2017/01/19/daca-on-the-docket/) - DACA ON THE DOCKET By: Nicholas R. Bednar, Volume 100 Lead Articles Editor [1] On December 9, 2016, Senators Lindsey Graham and Dick Durbin introduced the Bridge Act, which would provide temporary protection for undocumented children and young adults who have received immigration benefits under President Obama’s 2012 directive, Deferred Action for Childhood Arrivals (DACA).[2] Under lawreview - Minnesota Law Review - [Frozen Embryo Forum Shopping](https://minnesotalawreview.org/2017/01/18/frozen-embryo-forum-shopping/) - FROZEN EMBRYO FORUM SHOPPING: HOW CONFLICTS OF LAW INHIBIT THE LAWSUIT AGAINST SOFIA VERGARA By: Joseph T. Janochoski, Volume 101 Staff Member In December 2016, actress Sofía Vergara[1] was named as the sole defendant in a Louisiana lawsuit filed by her own frozen embryos.[2] The embryos “Emma” and “Isabella” sought to “remedy the prevention of lawreview - Minnesota Law Review - [Inclusive Communities and the Question of Impact](https://minnesotalawreview.org/2016/12/08/inclusive-communities-and-the-question-of-impact/) - INCLUSIVE COMMUNITIES AND THE QUESTION OF IMPACT: PRO-PLAINTIFF? By: Lauren Clatch, Volume 101 Staff Member In the summer of 2015, the Supreme Court ruled in Texas Dep’t of Housing & Community Affairs v. Inclusive Communities Project, Inc. regarding the viability of disparate impact claims under the Fair Housing Act (FHA).[1] Many have heralded the Court’s lawreview - Minnesota Law Review - [Phasing Out Private Prisons Is an Important Symbolic Gesture](https://minnesotalawreview.org/2016/12/06/phasing-out-private-prisons-is-an-important-symbolic-gesture/) - PHASING OUT PRIVATE PRISONS IS AN IMPORTANT SYMBOLIC GESTURE By: Claire Williams, Volume 101 Staff Member On August 18th, the Department of Justice (DOJ) announced that it would begin to phase out its use of private prisons, “either declin[ing] to renew that contract or substantially reduc[ing] its scope in a manner consistent with law and lawreview - Minnesota Law Review - [Creeping on the Constitution](https://minnesotalawreview.org/2016/11/29/creeping-on-the-constitution/) - CREEPING ON THE CONSTITUTION: FIRST AMENDMENT IMPLICATIONS OF THE 2016 CLOWN CRAZE By: Bethany Davidson, Volume 101 Staff Member On August 24, 2016, the property manager of an apartment complex in Greenville, South Carolina posted a concerning letter on residents’ doors.[1] The letter addressed multiple reports that were made to the complex’s office as well lawreview - Minnesota Law Review - [Is Auer Deference on the Way Out?](https://minnesotalawreview.org/2016/11/28/is-auer-deference-on-the-way-out/) - IS AUER DEFERENCE ON THE WAY OUT? By: Trevor Matthews, Volume 101 Staff Member In Bowles v. Seminole Rock & Sand, later reaffirmed in Auer v. Robbins, the Supreme Court announced a deferential standard of review for agency rules which interpret binding notice and comment regulations.[1] The standard, now commonly called Auer deference, instructs courts lawreview - Minnesota Law Review - [Helping Others Die](https://minnesotalawreview.org/2016/11/17/helping-others-die/) - HELPING OTHERS DIE: COMPARING POLICIES IN BELGIUM TO THOSE IN THE U.S. By: Ellie Bastian, Volume 101 Staff Member In the opening scenes of the Italian film Miele a woman makes her monthly journey from Europe to a Mexican pharmacy to buy Lamputin, a drug meant to end a pet’s life.[1] She brings two doses lawreview - Minnesota Law Review - [From "Let Us Pray" to "Let Us Reconsider"](https://minnesotalawreview.org/2016/11/15/from-let-us-pray-to-let-us-reconsider/) - FROM “LET US PRAY” TO “LET US RECONSIDER”: THE FOURTH CIRCUIT GRANTS EN BANC REVIEW IN LUND V. ROWAN COUNTY By: Rachel Leitschuck, Volume 101 Staff Member “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof . . . .”[1] This language is known as the Establishment Clause lawreview - Minnesota Law Review - [Minnesota Supreme Court Elections](https://minnesotalawreview.org/2016/11/07/minnesota-supreme-court-elections/) - MINNESOTA SUPREME COURT ELECTIONS: CONSIDERING CONCERNS AND CRITICISMS By: Sara Lewenstein, Volume 101 Staff Member On, Tuesday, August 9, 2016, 173,884 voters turned out for primary elections in Minnesota.[1] In some districts, the only item on the ballot was a statewide election for a seat on the Minnesota Supreme Court. The candidates included the following: lawreview - Minnesota Law Review - [It Takes Turner](https://minnesotalawreview.org/2016/11/02/it-takes-turner/) - IT TAKES TURNER: HOW STORIES SHAPE US By: Maisie Baldwin, Volume 101 Staff Member Anyone who's been on any form of social media since early 2015 has likely read Brock Turner's name. His name has come up in a variety of contexts: evidence of the continued existence of white privilege,[1] outrage regarding rape culture,[2] discussion lawreview - Minnesota Law Review - [Whole Woman's Health v. Hellerstedt](https://minnesotalawreview.org/2016/11/01/whole-womans-health-v-hellerstedt/) - WHOLE WOMAN’S HEALTH V. HELLERSTEDT: A REAFFIRMATION OF REPRODUCTIVE RIGHTS By: Payton George, Volume 101 Staff Member On June 27, 2016, the Supreme Court issued its ruling in the case of Whole Woman’s Health v. Hellerstedt.[1] In an opinion heralded by pro-choice supporters,[2] Justice Breyer, joined by Justices Kagan, Sotomayor, Kennedy, and Ginsburg (who issued lawreview - Minnesota Law Review - [Does Mother Nature Get a Vote?](https://minnesotalawreview.org/2016/10/19/does-mother-nature-get-a-vote/) - DOES MOTHER NATURE GET A VOTE? OUR NEXT PRESIDENT COULD IMPACT AMERICA'S INVOLVEMENT IN THE PARIS AGREEMENT ON CLIMATE CHANGE By: Taylor Mayhall, Volume 101 Staff Member Last December, representatives from 195 countries assembled in Paris to converse about a subject which they all felt was worthy of attention on a global scale: climate change.[1] lawreview - Minnesota Law Review - [Dan's Flaw](https://minnesotalawreview.org/2016/01/20/dans-flaw/) - DAN'S [F]LAW: STATUTORY FAILURE TO ENFORCE ETHICAL BEHAVIOR IN CLINICAL DRUG TRIALS By: Noah Lewellen,* Volume 99 Articles Submission Editor I. INTRODUCTION Paul, a sophomore at the University of Minnesota, bursts into a lecture hall, loudly claims to see monsters sitting in the seats, and offers his services in slaying them. The police are called, lawreview - Minnesota Law Review - [Case Comment: Bhogaita v. Altamonte](https://minnesotalawreview.org/2015/07/29/case-comment-bhogaita-v-altamonte/) - EVERY DOG CAN HAVE HIS DAY IN COURT: THE USE OF ANIMALS AS DEMONSTRATIVE EXHIBITS By: Kyle R. Kroll, Volume 100 Online Managing Editor In Bhogaita v. Altamonte, the Eleventh Circuit recently decided whether to allow a dog in the courtroom as a demonstrative exhibit.[1] Although the case presented many serious issues regarding the Fair lawreview - Minnesota Law Review - [Revisiting Water Bankruptcy](https://minnesotalawreview.org/2015/07/14/revisiting-water-bankruptcy/) - REVISITING WATER BANKRUPTCY IN CALIFORNIA’S FOURTH YEAR OF DROUGHT By Olivia Moe, Volume 100Managing Editor This spring, as “extreme” to “exceptional” drought stretched across most of California—indicating that a four-year streak of drought was not about to resolve itself[1]—Governor Jerry Brown issued an unprecedented order to reduce potable urban water usage by twenty-five percent.[2] In lawreview - Minnesota Law Review - [Defying Auer Deference](https://minnesotalawreview.org/2015/06/24/defying-auer-deference-skidmore-solution-conservative-concerns-perez-v-mortgage-bankers-association/) - DEFYING AUER DEFERENCE: SKIDMORE AS A SOLUTION TO CONSERVATIVE CONCERNS IN PEREZ v. MORTGAGE BANKERS ASSOCIATION By: Nicholas R. Bednar, Volume 100 Lead Articles Editor* On March 9, 2015, the Supreme Court of the United States handed down its decision in Perez v. Mortgage Bankers Association.[1]F The Court overturned the D.C. Circuit’s decision in Paralyzed Veterans lawreview - Minnesota Law Review - [Patent Reform Primer](https://minnesotalawreview.org/2015/03/31/reporting-patent-reform-primer/) - WHAT'S UNDER THE BRIDGE? A PATENT REFORM PRIMER By Ann E. Motl, Volume 99 Online Managing Editor Just a few years after passing the most sweeping changes in patent law since 1952, Congress is considering patent reform again.[1] Whereas the America Invents Act of 2011 (AIA) focused heavily on patent examination, the proposed reform would lawreview - Minnesota Law Review - [Rumble v. Fairview Health](https://minnesotalawreview.org/2015/03/31/reporting-rumble-v-fairview-health/) - RUMBLE V. FAIRVIEW HEALTH SERVICES: FEDERAL JUDGE HOLDS THAT THE AFFORDABLE CARE ACT'S FRANKENSTEIN CIVIL RIGHTS PROVISION PROTECTS TRANSGENDER INDIVIDUALS By: Leah Tabbert, Volume 99 Staff Member The federal judiciary has spent years teasing apart and examining the many provisions of the Patient Protection and Affordable Care Act (ACA).[1] Yet amidst the excitement surrounding religious lawreview - Minnesota Law Review - [FAA's Commercial Drone Quandary](https://minnesotalawreview.org/2015/03/26/reporting-faas-commercial-drone-quandary/) - THE FAA’S AMAZON EXEMPTION SIGNALS A COMMERCIAL DRONE QUANDARY ON THE HORIZON By: Maxwell Mensinger, Volume 99 Staff Member Last week, the Federal Aviation Administration (FAA) granted Amazon a much anticipated but highly restrictive license to test its drone delivery program. The event prompted various responses. Some commentators found the FAA’s progress laudable, particularly considering lawreview - Minnesota Law Review ## Pages - [Current Issue](https://minnesotalawreview.org/) - Articles, Essays, & Tributes Notes Headnotes Volume 110: Fall Issue Volume 108: Symposium Supplement De Novo Blog Tweets by MinnesotaLawRev barne102 - Minnesota Law Review - [Volume 110 <em>Headnotes</em>: Spring Issue](https://minnesotalawreview.org/current-headnotes/) - No More IEEPA Tariffs? The Legal Bases of an Alternative Regime By Lawrence J. Liu Full essay here. AI is not a Natural Monopoly By Simon Goldstein & Peter N. Salib Full essay here. Standard Confusion: The Case for Adopting Motivating Factor Causation for FMLA Retaliation Claims By Alyssa Shaw Full essay here. Founding Freedoms lawreview - Minnesota Law Review - [Volume 110 <em>Headnotes</em>: Fall Issue](https://minnesotalawreview.org/volume-110-headnotes-fall-issue/) - Exceptional Cases By Emily Cauble Full essay here. Machine Gun Funk: The Unusual Analysis of "Dangerous and Unusual" By Gregory S. Parks & Vivian Bolen Full essay here. 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 essay here. lawreview - Minnesota Law Review - [Headnotes Archive](https://minnesotalawreview.org/headnotes-archive/) - Volume 110 Fall Issue Volume 109 Fall Issue Spring Issue Volume 108 Fall Issue Spring Issue Symposium Supplement Volume 107 Fall Issue Spring Issue Volume 106 Fall Issue Spring Issue Volume 105 Fall Issue Spring Issue Volume 104 Compendium: Election Law and in the Ramp-Up to 2020 Spring Issue Volume 103 Fall Issue Spring Issue barne102 - Minnesota Law Review - [Submissions](https://minnesotalawreview.org/submissions/) - The Minnesota Law Review is published six times a year in November, December, February, April, May, and June by the Minnesota Law Review Foundation. Headnotes is published two times a year in the Fall and Spring. Minnesota Law Review Submissions for the Volume 111 print edition of the Minnesota Law Review are now closed as of barne102 - Minnesota Law Review - [Mastheads](https://minnesotalawreview.org/about/mastheads/) - 2026–27, Volume 111 2025–26, Volume 110 2024–25, Volume 109 2023–24, Volume 108 2022–23, Volume 107 2021–22, Volume 106 2020–21, Volume 105 2019–20, Volume 104 2018–19, Volume 103 2017–18, Volume 102 2016–17, Volume 101 2015–16, Volume 100 2014–15, Volume 99 2013–14, Volume 98 2012–13, Volume 97 2011–12, Volume 96 2010–11, Volume 95 2009–10, Volume 94 2008–09, barne102 - Minnesota Law Review - [Vol. 110 Print Issues](https://minnesotalawreview.org/vol-110-print-issues/) - Vol. 110:1 States as Shields, by Lindsay F. Wiley here. AI Companions and the Lessons of Family Law, by Clare Huntington here. The Good, the Bad, and the Ugly: A Comparative Constitutional Analysis of Whistleblowing Speech, the Government's Managerial Domain, and the Imperatives of Democratic Self-Government, by Ronald J. Krotoszynski, Jr. here. Securitizing the University, lawreview - Minnesota Law Review - [Membership](https://minnesotalawreview.org/about/membership/) - Thank you for your interest in the law journals at the University of Minnesota Law School. The 2025-26 petitioning period has closed. Though the 2026-27 process will vary, the information and links provided below may be useful in preparing to petition. The moot courts and journals have provided information and videos on their organizations. This barne102 - Minnesota Law Review - [MLR Archive](https://minnesotalawreview.org/law-review-archive/) - Issues 90–110 can be accessed here. The full archive is available through HeinOnline. Volume 110. Volume 109 Volume 108 Volume 107 Volume 106 Volume 105 Volume 104 Volume 103 Volume 102 Volume 101 Volume 100 Volume 99 Volume 98 Volume 97 Volume 96 Volume 95 Volume 94 Volume 93 Volume 92 Volume 91 Volume 90 barne102 - Minnesota Law Review - [Vol. 109 Print Issues](https://minnesotalawreview.org/vol-109-print-issues/) - Vol. 109:1 If Lived Experience Could Speak: A Method for Repairing Epistemic Violence in Law and the Legal Academy, by Terrell Carter and Rachel López here. Informed Bystanders' Duty to Warn, by Gilat J. Bachar here. Lawyering in the Age of Artificial Intelligence, by Jonathan H. Choi, Amy B. Monahan, and Daniel Schwarcz here. Repurposed lawreview - Minnesota Law Review - [Volume 109 <em>Headnotes</em>: Spring Issue](https://minnesotalawreview.org/volume-109-headnotes-spring-issue/) - Critical Curriculum Design: Teaching Law in an Age of Rising Authoritarianism By RACHEL LÓPEZ. Full Text. John Roberts’ Supreme Court: The Triumph of Partisanship and Ideology Over Precedent By DAVID SCHULTZ & JACOB BOURGAULT. Full Text. Tax Talk and Taxing Sugar Babies By BLAINE G. SAITO. Full Text. The Liminality of Transactional Relationships By VICTORIA lawreview - Minnesota Law Review - [Banquet](https://minnesotalawreview.org/banquet/) - Annual Banquet -- Save the Date! Each year, the Minnesota Law Review Banquet celebrates the hard work that Editors and Staffers put towards managing the Minnesota Law Review and presents an opportunity for current members to engage with MLR alumni and other advocates, policymakers, and scholars from across the Twin Cities. The Banquet includes exciting lawreview - Minnesota Law Review - [Alumni](https://minnesotalawreview.org/about/alumni/) - Welcome, alumni! We'd like to hear from you! Please email mnlawrev@umn.edu if you'd like to join the alumni mailing list, and feel free to also reach out whenever you or another alumnus has significant news that we can share within our community. We look forward to staying in touch! Distinguished Alumni Awards Created by the Volume barne102 - Minnesota Law Review - [Symposia Archive](https://minnesotalawreview.org/symposia-archive/) - 2024–25 Environmental and Energy Regulation Reformation: Challenges and Solutions After West Virginia v. EPA, Sackett v. EPA, and Loper Bright Enterprises v. Raimondo 2023–24 Aiming for Answers: Balancing Rights, Safety, and Justice in a Post-Bruen America 2022–23 Leaving Langdell Behind: Reimagining Legal Education for a New Era 2021–22 A Hill to Die On: Federal Court Reform in the 2020s barne102 - Minnesota Law Review - [2025-26 Symposium](https://minnesotalawreview.org/2025-26-symposium/) - The Minnesota Law Review invites you to attend the Vol. 110 Symposium, "The Battle Will Not Be Over": 60 Years of the Voting Rights Act. As Lyndon B. Johnson signed the historic Voting Rights Act of 1965, he warned that it wouldn't end the lengthy fight against disenfranchisement: "Even if we pass this bill, the lawreview - Minnesota Law Review - [2024-25 Symposium](https://minnesotalawreview.org/2024-25-symposium/) - Environmental and Energy Regulation Reformation: Challenges and Solutions After West Virginia v. EPA, Sackett v. EPA, and Loper Bright Enterprises v. Raimondo Minnesota Law Review is excited to present the Fall 2024 Symposium, Environmental and Energy Regulation Reformation: Challenges and Solutions After West Virginia v. EPA, Sackett v. EPA, and Loper Bright Enterprises v. Raimondo. This Symposium will focus on recent U.S. lawreview - Minnesota Law Review - [Volume 109 <em>Headnotes</em>: Fall Issue](https://minnesotalawreview.org/volume-109-headnotes-fall-issue/) - Substance Over Symbolism: Do We Need Benefit Corporation Laws? By CHENG-CHI (KIRIN) CHANG. Full Text. The Supreme Court’s Opinion in SEC v. Jarkesy Has the Potential To Be Extremely Destructive. By RICHARD J. PIERCE, JR. Full Text. Defining Common and Individual Issues in Class Actions: What a Reasonable Jury Could Do. By AARON D. VAN lawreview - Minnesota Law Review - [Volume 108 Headnotes: Symposium Supplement](https://minnesotalawreview.org/volume-108-headnotes-symposium-supplement/) - 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 essay here. Refining the Dangerousness Standard in Felon Disarmament By Jamie G. McWilliam Full essay here. “Proven” Safety Regulations: Massachusetts 1805 Proving Law As Historical Analogue for Modern Gun lawreview - Minnesota Law Review - [Volume 108 Headnotes: Spring Issue](https://minnesotalawreview.org/volume-108-headnotes-spring-issue/) - Volume 108: Spring Issue Thirty-Five Years of Inaction: The Unfulfilled Promise of the Medicaid Equal Access Provision By Delaram Takyar Full essay here. Teaching “Is This Case Rightly Decided?” By Steven Arrigg Koh Full essay here. Erasing Racial Harms in CFPB v. Community Financial Services Association By Callan Showers Full essay here. Should Courts Make lawreview - Minnesota Law Review - [Volume 108 Headnotes: Fall Issue](https://minnesotalawreview.org/volume-108-headnotes-fall-issue/) - Volume 108: Fall Issue AI Tools for Lawyers: A Practical Guide By Daniel Schwarcz & Jonathan H. Choi Full essay here. Property as a Legitimating Right By Duncan Hosie Full essay here. Still on the Hook: Forward-Looking Releases Reel-in Potential Risks in Mergers and Acquisitions By Mark T. Wilhelm & Madison Fitzgerald Full essay here. lawreview - Minnesota Law Review - [Vol. 108 Print Issues](https://minnesotalawreview.org/vol-108-print-issues/) - 108:1 Civil Rights Liability for Bad Hiring, by Nancy Leong here. An Organizational Theory of International Technology Transfer, by Peter Lee here. Bringing Courts into Global Governance in a Climate-Disrupted World Order, by Karen C. Sokol here. Regulating History, by Sara C. Bronin and Leslie R. Irwin here. The Federal Reserve's Mandate by David T. lawreview - Minnesota Law Review - [Aiming for Answers: Balancing Rights, Safety, and Justice in a Post-<em>Bruen</em> America](https://minnesotalawreview.org/2023-24-symposium-2/) - Minnesota Law Review and Giffords Law Center are excited to present the Fall 2023 Symposium, Aiming for Answers: Balancing Rights, Safety, and Justice in a Post-Bruen America. Through a multidisciplinary framework, this Symposium will focus on how lawyers, scholars, and historians can work within the NYSRPA v. Bruen framework to address gun violence across our country and lawreview - Minnesota Law Review - [Headnotes Submissions](https://minnesotalawreview.org/about-headnotes/) - Thank you for your interest in publishing with Minnesota Law Review Headnotes. If you have a timely article responding to a recent legal development or court opinion, please submit those pieces for consideration directly to mnlawrev@umn.edu. Headnotes will begin reviewing submissions for Volume 109 on May 1, 2024. Submissions received prior to that date are welcome, barne102 - Minnesota Law Review - [Appendix for Civil Rights Liability for Bad Hiring](https://minnesotalawreview.org/v108-leong-appendix/) - Download [40.00 KB] lawreview - Minnesota Law Review - [Volume 108 Appendices](https://minnesotalawreview.org/volume-108-appendices/) - [Copy explaining that all appendices are included here for the purposes of transparency and easy access -- or something like that?] Volume 108, Issue 1: Civil Rights Liability for Bad Hiring by Nancy Leong lawreview - Minnesota Law Review - [2023-24 Symposium](https://minnesotalawreview.org/2023-24-symposium/) - Minnesota Law Review and Giffords Law Center are excited to present the Fall 2023 Symposium, Aiming for Answers: Balancing Rights, Safety, and Justice in a Post-Bruen America. Through a multidisciplinary framework, this Symposium will focus on how lawyers, scholars, and historians can work within the NYSRPA v. Bruen framework to address gun violence across our country and lawreview - Minnesota Law Review - [Vol. 107 Print Issues](https://minnesotalawreview.org/vol-107-print-issues/) - 107:1 Citizenship Disparities, by Emily Ryo and Reed Humphrey here. Rethinking the Crime of Rioting, by Nick Robinson here. Unsexing Breastfeeding, by Naomi Schoenbaum here. Killing the Motivation of the Minority Law Professor, by Goldburn P. Maynard Jr. here. Optional Legislation, by Jacob Bronsther and Guha Krishnamurthi here. Unprotected but Not Forgotten: A Call to lawreview - Minnesota Law Review - [Experto Crede](https://minnesotalawreview.org/experto-crede/) - Experto Crede is the official Minnesota Law Review podcast. Listen to the latest episodes on Soundcloud, Spotify, or iTunes! Season 5 5.1 How the Liberal First Amendment Under-Protects Democracy with Professor Tabatha Abu El-Haj The guest for this episode is Professor Tabatha Abu El-Haj, a Professor of Law at Drexel University Thomas R. Kline School of lawreview - Minnesota Law Review - [Volume 107 Headnotes: Spring Issue](https://minnesotalawreview.org/volume-107-headnotes-spring-issue/) - Volume 107: Spring Issue Tattoos, Norms, and Implied Licenses By Aaron Perzanowski Full essay here. The Ethics of Abortion Ban Exceptions: Is the “Life-Threatening” Exception Threatening Lives? By Mary Fleming Full essay here. Interstate Cannabis Compacts: The Road to a Regional Legal Cannabis Economy By Michael Kinane Full essay here. The Battle for the Soul lawreview - Minnesota Law Review - [2022–23 Symposium](https://minnesotalawreview.org/2022-23-symposium/) - Fall 2022 Symposium The Fall 2022 Symposium, Leaving Langdell Behind: Reimagining Legal Education for a New Era was held on Friday, October 7, in-person at Walter F. Mondale Hall. The entire event was streamed live, and videos of each panel can be found in a YouTube playlist here. The schedule and speakers is available here. For those that are lawreview - Minnesota Law Review - [About Us](https://minnesotalawreview.org/about/) - In January 1917, Professor Henry J. Fletcher launched the Minnesota Law Review with lofty aspirations: “A well-conducted law review . . . ought to do something to develop the spirit of statesmanship as distinguished from a dry professionalism. It ought at the same time contribute a little something to the systematic growth of the whole barne102 - Minnesota Law Review - [Volume 107 Headnotes: Fall Issue](https://minnesotalawreview.org/volume-107-headnotes-fall-issue/) - Volume 107: Fall Issue “What Has Always Been True”: The Washington Supreme Court Decides That Seizure Law Must Account for Racial Disparity in Policing By Aliza Hochman Bloom Full essay here. Antitrust Reformers Should Consider the Consequences of Mandatory Treble Damages: What the Admonition Against Putting New Wine in Old Wineskins Can Teach Us About lawreview - Minnesota Law Review - [Volume 106 Print Issues](https://minnesotalawreview.org/volume-106-print-issues/) - 106:1 Remembrance of and Tribute to Walter F. Mondale, by Garry W. Jenkins here. The Law School as a White Space, by Bennett Capers here. Stealing (Identity) From the Poor, by Sara S. Greene here. The APA and the Assault on Deference, by Ronald M. Levin here. 4°C, by J.B. Ruhl & Robin Kundis Craig lawreview - Minnesota Law Review - [Volume 106 Headnotes: Spring Issue](https://minnesotalawreview.org/volume-106-headnotes-spring-issue/) - Introduction to The Bremer-Kovacs Collection: Historic Documents Related to the Administrative Procedure Act of 1946 (HeinOnline 2021) By Emily S. Bremer & Kathryn E. Kovacs Full essay here. Sprinting a Marathon: Next Steps for Gender Equity in Criminal Law Employment By Maryam Ahranjani Full article here. Racial Bias in Algorithmic IP By Dan L. Burk Full essay here. lawreview - Minnesota Law Review - [Distinguished Alumni Awards](https://minnesotalawreview.org/distinguished-alumni-awards/) - Created by the Volume 89 Board of Editors, the Distinguished Alumni Awards are granted each year by the current Board of Editors at the annual spring banquet. We look to Law Review alumni to nominate other alumni who have made extraordinary contributions to the profession and the greater good of society. Please tell us about colleagues lawreview - Minnesota Law Review - [Vol. 106 Print Issues](https://minnesotalawreview.org/vol-106-print-issues/) - 106:1 Remembrance of and Tribute to Walter F. Mondale, by Garry W. Jenkins here. The Law School as a White Space, by Bennett Capers here. Stealing (Identity) From the Poor, by Sara S. Greene here. The APA and the Assault on Deference, by Ronald M. Levin here. 4°C, by J.B. Ruhl & Robin Kundis Craig lawreview - Minnesota Law Review - [2021-22 Symposium](https://minnesotalawreview.org/2022-symposium/) - Minnesota Law Review, Volume 106 Symposium "A Hill to Die On: Federal Court Reform in the 2020s" Friday, March 25, 2022 12:00 PM to 4:00 PM Over a short period of time, the structure of our federal courts has become a hot topic of political, scholarly, and cultural debate. While the Article III judiciary - [Volume 106 Headnotes: Fall Issue](https://minnesotalawreview.org/volume-106-headnotes-fall-issue/) - Changing the Student Loan Dischargeability Framework: How the Department of Education Can Ease the Path for Borrowers in Bankruptcy By Pamela Foohey, Aaron S. Ament, & Daniel A. Zibel Full essay here. The Banality of Law Journal Rejections By Noah C. Chauvin Full essay here. Advancing Student Achievement Through Elementary and Secondary Education Act Waivers By Justin - [Vol. 105 Print Issues](https://minnesotalawreview.org/vol-105-print-issues/) - 105:1 Fun with Reverse Ejusdem Generis, by Jay Wexler here Restoring ALJ Independence, by Richard E. Levy & Robert L. Glicksman here No Privilege to Pollute: Expanding the Crime-Fraud Exception to the Attorney-Client Privilege, by Tom Lininger here Parental Autonomy over Prenatal End-of-Life Decisions, By Greer Donley here Core Criminal Procedure, by Steven Arrigg Koh lawreview - Minnesota Law Review - [2020-21 Symposium](https://minnesotalawreview.org/2020-symposium/) - “Glass Ceilings, Glass Walls: Intersections in Legal Gender Equality and Voting Rights One Hundred Years After the Nineteenth Amendment” Thursday, April 1 (starts at 1:00pm) - Friday, April 2, 2021 (starts at 9:00am) Register Now (Must Register for Each Day Separately): z.umn.edu/MLRSymposium2021Day1 z.umn.edu/MLRSymposium2021Day2 Symposium Schedule Available Here Detailed Information on each Panel Available Here lawreview - Minnesota Law Review - [Volume 104 Headnotes: Spring Issue](https://minnesotalawreview.org/volume-104-headnotes-spring-issue/) - Criminal Consequences and the Anti-Injunction Act By Gerald S. Kerska Full essay here. Comment on Griffith’s Deal Insurance: The Continuing Scramble Among Professionals By Abraham J.B. Cable Full essay here. lawreview - Minnesota Law Review - [Vol. 104 Print Issues](https://minnesotalawreview.org/vol-104-print-issues/) - 104:1 Regulation in Transition, by Bethany A. Davis Noll and Richard L. Revesz here Contracting for Fourth Amendment Privacy Online, by Wayne A. Logan and Jake Linford here Solving Banking’s “Too Big To Manage” Problem, by Jeremy C. Kress here Restructuring Rebuttal of the Marital Presumption for the Modern Era, by Jessica Feinberg here The Lawyer As Accomplice: Cannabis, Uber, lawreview - Minnesota Law Review - [The Headnotes Compendium: Election Law in the Ramp-Up to 2020](https://minnesotalawreview.org/the-headnotes-compendium-election-law-in-the-ramp-up-to-2020/) - Minnesota Law Review Headnotes is proud to publish its first annual Compendium. Each Headnotes Compendium will focus on a different area of law and feature essays highlighting the latest legal developments in the field. The inaugural Compendium focuses on recent changes in election law and voting rights, as the country prepares itself for the 2020 lawreview - Minnesota Law Review - [Vol. 101: Spring Headnotes](https://minnesotalawreview.org/vol-101-spring-headnotes/) - Heuristic Interventions in the Study of Intellectual Property by Jessica Silbey Professor Silbey expands on the work of Professor Burk by elaborating on three of Burk’s central points, while noting that Burk’s work serves as a crucial step in explaining intellectual property as a social practice. Full essay here. Truth, Lies, and Power at Work by Cynthia Estlund lawreview - Minnesota Law Review - [Volume 103 Headnotes: Spring Issue](https://minnesotalawreview.org/volume-103-headnotes-spring-issue/) - Response to McGeveran’s The Duty of Data Security: Not the Objective Duty He Wants, Maybe the Subjective Duty We Need by Justin (Gus) Hurwitz Full essay here. The Chevronization of Auer by Kristin E. Hickman & Mark R. Thomson. Full essay here. Why Police Should Protect Complainant Autonomy By Randall K. Johnson. Full article here. lawreview - Minnesota Law Review - [2019 Symposium](https://minnesotalawreview.org/2019-symposium/) - “Mass Incarceration as a Chronic Condition: Diagnosis, Prognosis, and Treatment” Monday, November 18, 2019 University of Minnesota Law School, Room 25 Registration is closed. The waitlist is also closed. If you are registered and unable to attend, please email traut050@umn.edu to open a space. The 2019 Symposium assembles scholars that will examine mass incarceration as barne102 - Minnesota Law Review - [Test Front Page](https://minnesotalawreview.org/test-front-page/) - lawreview - Minnesota Law Review - [Past Issues](https://minnesotalawreview.org/past-issues/) - lawreview - Minnesota Law Review - [Volume 103 Headnotes: Fall Issue](https://minnesotalawreview.org/volume-103-headnotes-fall-issue/) - The Other Trade War by Kathleen Claussen Full essay here. Les Bleus and Black: A Football Elegy to French Colorblindness by Khaled A. Beydoun Full essay here. Preventing Sexual Harassment and Misconduct in Higher Education: How Lawyers Should Assist Universities in Fortifying Ethical Infrastructure by Susan Saab Fortney Full essay here. The SAFE, the KISS, lawreview - Minnesota Law Review - [Volume 103 Headnotes](https://minnesotalawreview.org/volume-103-headnotes/) - barne102 - Minnesota Law Review - [Vol. 103 Print Issues](https://minnesotalawreview.org/vol-103-issues/) - 103:1 Remembrance of Judge Diana E. Murphy, by Ruth Bader Ginsburg here Remembrance of Judge Diana E. Murphy, by Margaret H. Chutich here Remembrance of Judge Diana E. Murphy, by Michael J. Melloy here Remembrance of Judge Diana E. Murphy, by Rubén Castillo here Remembrance of Judge Diana E. Murphy, by Johnathan Lebdeoff here The lawreview - Minnesota Law Review - [Vol. 103 Print Issues](https://minnesotalawreview.org/vol-103-print-issues/) - 103:1 Remembrance of Judge Diana E. Murphy, by Ruth Bader Ginsburg here Remembrance of Judge Diana E. Murphy, by Margaret H. Chutich here Remembrance of Judge Diana E. Murphy, by Michael J. Melloy here Remembrance of Judge Diana E. Murphy, by Rubén Castillo here Remembrance of Judge Diana E. Murphy, by Jonathan Lebedoff here The lawreview - Minnesota Law Review - [Subscriptions](https://minnesotalawreview.org/subscriptions/) - The Minnesota Law Review (ISSN 0026-5535) is published six times a year in November, December, February, April, May, and June by the Minnesota Law Review Foundation, 285 Walter F. Mondale Hall, 229 19th Avenue South, Minneapolis, Minnesota 55455. Periodicals postage paid at Minneapolis, Minnesota and at additional mailing office. Subscriptions are automatically renewed upon expiration unless barne102 - Minnesota Law Review - [2018 Symposium](https://minnesotalawreview.org/2018-symposium/) - "Recession in Retrospect: Financial Regulation and Consumer Protection Ten Years Since the 2008 Financial Crisis" Date: Friday, October 12, 2018 Location: University of Minnesota Law School, Room 25 Ten years since the 2008 Financial Crisis, the Minnesota Law Review seeks to explore the state of financial regulation and consumer protection in America. Incorporating the views barne102 - Minnesota Law Review - [MLR Online: De Novo and Experto Crede](https://minnesotalawreview.org/de-novo/) - De Novo Purpose De Novo is the newest addition to the Minnesota Law Review family. The blog serves as a forum through which the staff, editors, and alumni of the Minnesota Law Review can contribute to legal thought and academic debate. Content De Novo features posts in a variety of forms: essays, policy briefs, legal reporting, case barne102 - Minnesota Law Review - [Issues](https://minnesotalawreview.org/issues/) - barne102 - Minnesota Law Review - [Volume 102 Headnotes](https://minnesotalawreview.org/volume-102-headnotes/) - Improving Familial and Communal Eldercare in the United States: Lessons from China and Japan by Hunter Bruton Abstract and essay here. Prosecuting Inequitable Conduct by Kyle R. Kroll Full essay here. lawreview - Minnesota Law Review - [Fletcher Files](https://minnesotalawreview.org/fletcher-files/) - Volume 9 Issue 1 (Fall 2013) Volume 8 Issue 2 (Spring 2013) Issue 1 (Fall 2012) Volume 7 Issue 2 (Spring 2012) Issue 1 (Fall 2011) Volume 6 Issue 2 (Spring 2011) Issue 1 (Fall 2010) Volume 5 Issue 2 (Spring 2010) Issue 1 (Fall 2009) Volume 4 Issue 2 (Spring 2009) Issue 1 (Fall lawreview - Minnesota Law Review - [Symposia Archive](https://minnesotalawreview.org/symposia-archive-2/) - 2017 Prescription for Pharmaceutical's Future: Balancing Industry and Consumer Concerns in Pharmaceutical Drug Development. Watch a full video recording of this symposium here 2016 Balancing First Amendment Rights with an Inclusive Environment on Public University Campuses 2015 Standing on the Shoulders of Giants: Celebrating 100 Volumes of the Minnesota Law Review 2014 Offenders in the Community: Reshaping lawreview - Minnesota Law Review - [De Novo Posts](https://minnesotalawreview.org/de-novo-archive-2/) - lawreview - Minnesota Law Review - [Vol. 102 Print Issues](https://minnesotalawreview.org/vol-102-issues/) - 102:1 Remembrance of Judge Myron Bright, by Ruth Bader Ginsburg here Remembrance of Judge Myron Bright, by Samuel A. Alito, Jr. here In Memoriam Judge Myron Bright, by Diana E. Murphy here Remembering Judge Myron Bright, by Jane Kelly here Standing Voting Instructions: Empowering the Excluded Retail Investor, by Jill E. Fisch here Constitutional Reasonableness, by Brandon L. Garrett here Valuing Identity, by Osamudia R. James here Carbon Taxation by Regulation, by Jim Rossi here Strengthening Cybersecurity with Cyberinsurance lawreview - Minnesota Law Review - [Vol. 101 Print Issues](https://minnesotalawreview.org/vol-101-issues/) - 101:1 Federalism and Moral Disagreement, by Guido Calabresi & Eric S. Fish here Truth and Lies in the Workplace: Employer Speech and the First Amendment, by Helen Norton here The Law of the Platform, by Orly Lobel here Knowledge Goods and Nation-States, by Daniel J. Hemel & Lisa Larrimore Ouellette here Tie Votes in the Supreme Court, by Justin Pidot here Note: Guardians of Your Galaxy S7: Encryption Backdoors and lawreview - Minnesota Law Review - [Vol. 100 Print Issues](https://minnesotalawreview.org/vol-100-issues/) - 100:1 Back to the Future? Legal Scholarship in the Progressive Era and Today, by Daniel A. Farber here Against Jawboning, by Derek E. Bambauer here Revitalizing Dormant Commerce Clause Review for Interstate Coordination, by Alexandra B. Klass & Jim Rossi here Why Rape Should Not (Always) Be a Crime, by Katharine K. Baker here Outrageous and Irrational, by Jane R. Bambauer & Toni M. Massaro here Note: Social Group Semantics: lawreview - Minnesota Law Review - [Vol. 99 Print Issues](https://minnesotalawreview.org/vol-99-issues/) - 99:1 A Conversation Between Justice Ruth Bader Ginsburg and Professor Robert A. Stein here A Corporate Right to Privacy, by Elizabeth Pollman here Law’s Remarkable Failure to Protect Mistakenly Overpaid Employees, by Jim Hawkins here Law at the End of War, by Deborah N. Pearlstein here The Death of Tax Court Exceptionalism, by Stephanie Hoffer & Christopher J. Walker here Truthiness: Corporate Public Figures and the Problem of lawreview - Minnesota Law Review - [Vol. 98 Print Issues](https://minnesotalawreview.org/vol-98-issues/) - 98:1 Greeting the Future with an Outstretched Hand, by President William J. Clinton here The Right to Quantitative Privacy, by David Gray and Danielle Citron here eHearsay, by Jeffrey Bellin here The Shale Oil and Gas Revolution, Hydraulic Fracturing, and Water Contamination: A Regulatory Strategy, by Thomas W. Merrill & David M. Schizer here The Merchants of Wall Street: Banking, Commerce, and Commodities, by Saule T. Omarova here Genetically Modified lawreview - Minnesota Law Review - [Vol. 97 Print Issues](https://minnesotalawreview.org/vol-97-issues/) - 97:1 How Business Fares in the Supreme Court, by Lee Epstein, William M. Landes, and Richard A. Posner here Notice-and-Comment Sentencing, by Richard A. Bierschbach and Stephanos Bibas here Patent Law’s Audience, by Mark D. Janis and Timothy R. Holbrook here Forum Competition and Choice of Law Competition in Securities Law After Morrison v. National Australia Bank, by Wulf A. Kaal and Richard W. Painter here The Political lawreview - Minnesota Law Review - [Vol. 96 Print Issues](https://minnesotalawreview.org/vol-96-issues/) - 96:1 Essay: Substantive Equality: A Perspective, by Catharine A. MacKinnon here Tort Law and the American Economy, by Frank B. Cross here Rights for Sale, by Tsilly Dagan and Talia Fisher here Beyond Crime and Commitment: Justifying Liberty Deprivations of the Dangerous and Responsible, by Kimberly Kessler Ferzan here Public Choice and International Law Compliance: The Executive Branch Is a “They,” Not an “It”, by Neomi Rao here Note: Combating lawreview - Minnesota Law Review - [Vol. 95 Print Issues](https://minnesotalawreview.org/vol-95-issues/) - 95:1 The Role of Dissenting Opinions, by Hon. Ruth Bader Ginsburg here Strategic Enforcement, by Margaret H. Lemos and Alex Stein here Dual Illegality and Geoambiguous Law: A New Rule for Extraterritorial Application of U.S. Law, by Jeffrey A. Meyer here Anticompetitive Effect, by Hon. Richard D. Cudahy and Alan Devlin here Administration By Treasury, by David Zaring here Note: Meeting Boumediene′s Challenge: The Emergence of an Effective Habeas Jurisprudence lawreview - Minnesota Law Review - [Vol. 94 Print Issues](https://minnesotalawreview.org/vol-94-issues/) - 94:1 Against Permititis: Why Voluntary Organizations Should Regulate the Use of Cancer Drugs, by Richard A. Epstein here Reconfiguring Estate Settlement, by John H. Martin here Why Did the Incorporation of the Bill of Rights Fail in the Late Nineteenth Century?, by Gerard N. Magliocca here Note: Credit Rating Agencies and the First Amendment: Applying Constitutional Journalistic Protections to Subprime Mortgage Litigation, by Theresa Nagy here Note: In lawreview - Minnesota Law Review - [Vol. 93 Print Issues](https://minnesotalawreview.org/vol-93-issues/) - 93:1 Essay: The Constitution in the National Surveillance State, by Jack M. Balkin here The Rules Enabling Act and the Procedural-Substantive Tension: A Lesson in Statutory Interpretation, by Martin H. Redish and Dennis Murashko here Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change, by Jill Elaine Hasday here Generous to a Fault? Fair Shares and Charitable Giving, by Miranda Perry Fleischer here The Quiet Revolution Revived: lawreview - Minnesota Law Review - [Vol. 92 Print Issues](https://minnesotalawreview.org/vol-92-issues/) - 92:1 The Bill of Rights in the Early State Courts, by Jason Mazzone here Punitive Damages and Valuing Harm, by Alexandra B. Klass here Integrating Investment Treaty Conflict and Dispute Systems Design, by Susan D. Franck here Note: To Fix or Not to Fix: Copyright’s Fixation Requirement and the Rights of Theoretical Collaborators, by Carrie Ryan Gallia here 92:2 State Habeas Relief for Federal Extrajudicial Detainees, by Todd E. lawreview - Minnesota Law Review - [Vol. 91 Print Issues](https://minnesotalawreview.org/vol-91-issues/) - 91:1 Lecture: The Future of the Legal Profession, by Robert A. Stein here Tribute: Continuing the Path to Excellence: University of Minnesota Law School Dean Alex M. Johnson, Jr., by Edward S. Adams here Juveniles’ Competence to Exercise Miranda Rights: An Empirical Study of Policy and Practice, by Barry C. Feld here The Anticompetitive Effects of Underenforced Invalid Patents, by Christopher R. Leslie here Third-Party Copyright Liability After Grokster, by Alfred lawreview - Minnesota Law Review - [Vol. 90 Print Issues](https://minnesotalawreview.org/vol-90-issues/) - 90:1 Introduction to Socratic Method and the Irreducible Core of Legal Education, by David Weissbrodt here Lecture, Socratic Method and the Irreducible Core of Legal Education, by Donald G. Marshall here Retaliation, by Deborah L. Brake here Justice Holmes, Buck v. Bell, and the History of Equal Protection, by Stephen A. Siegel here Playing with “Monopoly Money”: Phony Profits, Fraud Penalties and Equity, by Craig M. Boise here lawreview - Minnesota Law Review - [Vol. 93](https://minnesotalawreview.org/vol-93/) - A Better Solution to Moral Hazard in Employment Arbitration: It Is Time to Ban Predispute Binding Arbitration Clauses? A Response to LeRoy by Lisa Blomgren Bingham and David Henning Good In this Response, Professors Bingham and Good take a second look at Professor Michael LeRoy’s statistics from his article, Do Courts Create Moral Hazard? When Judges Nullify Employer lawreview - Minnesota Law Review - [Vol. 94: Spring](https://minnesotalawreview.org/vol-94-spring/) - Right Question, Wrong Answer: A Response to Professor Epstein and the “Permititis” Challenge by Ralph F. Hall In this Response to Professor Epstein’s Against Permititis: Why Voluntary Organizations Should Regulate the Use of Cancer Drugs, Professor Hall argues that while he agrees with Professor Epstein’s assessment of the problems with the FDA drug approval process, he disagrees lawreview - Minnesota Law Review - [Vol. 94: Winter](https://minnesotalawreview.org/vol-94-winter/) - Innovating Between and Within Technological Paradigms: A Response to Samuelson by Peter Lee In this Response, Professor Lee builds on Professor Samuelson’s Are Patents on Interfaces Impeding Interoperability? to emphasize that the social costs and benefits of interface patents are highly context-specific. Invoking the concept of “technological paradigms,” Professor Lee argues that strong interface patents can promote significant technological lawreview - Minnesota Law Review - [Vol. 95: Spring](https://minnesotalawreview.org/vol-95-spring/) - Justice David Stras Tribute by David Wippman, Robert A. Stein, Timothy R. Johnson, and Ryan W. Scott David Stras joined the University of Minnesota Law School faculty in 2004 and quickly established himself as a rising star, both as a teacher and a scholar. Only two years after he arrived, he was named the Stanley V. lawreview - Minnesota Law Review - [Vol. 95: Winter](https://minnesotalawreview.org/vol-95-winter/) - In the Shadow of the Omnipresent Claw: In Response to Professors Cherry & Wong by Michael C. Macchiarola [Editor's Note: This piece responds to Reply: Clawback to the Future by Miriam A. Cherry and Jarrod Wong.] As the American economy continues to totter against an ever-growing populist momentum, it seems likely that clawback mechanisms of various sorts will lawreview - Minnesota Law Review - [Vol. 96](https://minnesotalawreview.org/vol-96/) - In Defense of Future Children: A Response to Cohen’s Beyond Best Interests by Kimberly M. Mutcherson This essay responds to I. Glenn Cohen’s articles, Regulating Reproduction and Beyond Best Interests, by asserting that Cohen’s work fails to attain his goal of fundamentally shifting the terrain upon which discussions about exercising control over reproduction takes place. The response offers four interrelated lawreview - Minnesota Law Review - [Vol. 97](https://minnesotalawreview.org/vol-97/) - Burying Best Interests of the Resulting Child: A Response to Professors Crawford, Alvaré, and Mutcherson by I. Glenn Cohen In this Article, Professor Cohen responds to Articles by Professors Crawford, Alvaré, and Mutcherson, who wrestle with the arguments he raises in Regulating Reproduction: The Problem with Best Interests and Beyond Best Interests. Full essay here. lawreview - Minnesota Law Review - [Vol. 98](https://minnesotalawreview.org/vol-98/) - Substantial Government Interference with Prosecution Witnesses: The Ninth Circuit’s Decision in United States v. Juan by Ruth A. Moyer On January 7, 2013, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued its decision in United States v. Juan. As a matter of first impression, the Ninth Circuit held that the constitutional proscription lawreview - Minnesota Law Review - [Vol. 99: Spring](https://minnesotalawreview.org/vol-99-spring/) - Tax Credits on Federally Created Exchanges: Lessons from a Legislative Process Failure Theory of Statutory Interpretation by Mark Seidenfeld This Essay advocates that the question of whether, under the Affordable Care Act, individuals who purchase insurance on federally created exchanges are eligible for tax credits should be interpreted using a recently proposed method of reading statutes lawreview - Minnesota Law Review - [Vol. 99: Fall](https://minnesotalawreview.org/vol-99-fall/) - Restructuring the U.S. Tax Court:A Reply to Stephanie Hoffer and Christopher Walker’s The Death of Tax Court Exceptionalism by Leandra Lederman This is an invited response piece to the Walker & Hoffer article, The Death of Tax Court Exceptionalism. Our special thanks to Professor Lederman for penning this excellent response. Full essay here. Clinging to the lawreview - Minnesota Law Review - [Vol. 100: Summer Part Two](https://minnesotalawreview.org/vol-100-summer-part-ii/) - Improving Technology Neutrality Through Compulsory Licensing by Jake Linford Brad Greenberg’s article, Rethinking Technology Neutrality, challenges a fundamental premise of the current Copyright Act. The Act takes a technology neutral approach to defining the scope of copyright protection. Under the Act, old and new technologies should receive equal treatment with regard to copyright liability as a lawreview - Minnesota Law Review - [Vol. 100: Summer Part One](https://minnesotalawreview.org/vol-100-summer-part-i/) - Outstanding Constitutional and International Law Issues Raised by the United States-Puerto Rico Relationship by Juan R. Torruella This Article touches upon some issues of fundamental importance to the several million nationally disenfranchised United States citizens that reside in Puerto Rico. I write with a modicum of uneasiness as a result of the uncertain terrain on which the United States-Puerto Rico lawreview - Minnesota Law Review - [Vol. 100: Winter](https://minnesotalawreview.org/vol-100-winter/) - Obergefell and the “New” Reproduction by Courtney Megan Cahill Alternative reproduction has become the new frontier in the continuing culture wars over the family. Commentators with longstanding anxieties over non-traditional kinship have turned their regulatory gaze to it, as have more progressive scholars who support non-traditional family formation but nevertheless favor proposals to regulate the “new lawreview - Minnesota Law Review - [Vol. 101: Fall Headnotes](https://minnesotalawreview.org/vol-101-fall-headnotes/) - The Twice and Future President Revisited: Of Three-Term Presidents and Constitutional End Runs by Bruce G. Peabody Professor Bruce G. Peabody reexamines his 1999 piece published with Volume 83 of the Minnesota Law Review, entitled “The Twice and Future President: Constitutional Interstices and the Twenty-Second Amendment.” Peabody’s 1999 article has generated a significant amount of conversation since the lawreview - Minnesota Law Review - [Vol. 101: Online Scalia Symposium](https://minnesotalawreview.org/vol-101-scalia-symposium/) - Introduction by Charles Barrera Moore, Lead Online Editor Minnesota Law Review is pleased to present a collection of essays on Justice Antonin Scalia’s impact on the Supreme Court. These essays aim to present a wide look at Justice Scalia’s many contributions to the Court during his decades on the Bench. While Justice Scalia was one of the lawreview - Minnesota Law Review ## Supplement - [Comment on Griffith’s Deal Insurance: The Continuing Scramble Among Professionals](https://minnesotalawreview.org/supplement/comment-on-griffiths-deal-insurance-the-continuing-scramble-among-professionals/) - In his recent article, Professor Sean Griffith observes a substantial development in the M&A market. Increasingly, buyers and sellers replace traditional deal terms with an insurance product—representation and warranty insurance (“RWI”). This essay considers how this new product and the insurance professionals who sell and underwrite it affect the traditional role of M&A lawyers. It concludes that RWI, in its present form, does not substantially encroach on the traditional role of M&A lawyers. But it also notes that representations and warranties are ripe for technological innovation and that insurance professionals may be better positioned then lawyers to seize the opportunity. - Minnesota Law Review - [Criminal Consequences and the Anti-Injunction Act](https://minnesotalawreview.org/supplement/criminal-consequences-and-the-anti-injunction-act/) - By Gerald S. Kerska. Full text. Abstract: The United States Supreme Court has made clear that no litigant should have to choose between asserting his legal rights and risking prosecution. That is not so for certain challenges to Treasury regulations. Information reporting regulations are enforced through civil penalties and criminal liability. Because those civil penalties count - Minnesota Law Review - [The Chevronization of Auer](https://minnesotalawreview.org/supplement/the-chevronization-of-auer/) - The Supreme Court is poised in Kisor v. Wilkie to reconsider the standard of review known as Auer deference, whereby courts must defer to an agency’s reasonable interpretation of its own regulation. Auer’s defenders have long argued that the standard advances important practical goals, such as simplifying the judicial task and fostering consistency and predictability in the administrative process. During the last two decades, though, courts have engrafted an increasingly complex array of qualifications and exceptions onto Auer’s basic framework. This essay argues that those qualifications and exceptions have seriously undermined the practical rationales that are sometimes cited to support Auer deference, much as the development of a similar set of qualifications and exceptions diminished the practical benefits of Auer’s better-known cousin, Chevron deference. - Minnesota Law Review - [Why Police Should Protect Complainant Autonomy](https://minnesotalawreview.org/supplement/why-police-should-protect-complainant-autonomy/) - This Article is one in a series of papers that sets the record straight about the type, quality, and quantity of information that U.S. administrative agencies may employ to make more informed policy decisions. The Article does its work in, at least, three ways. First, it encourages better use of scarce public sector resources by calling for reform of the police complaint intake process. Next, this Article identifies the causes of police complaint inefficiencies by critically assessing how intake is done by the Chicago Police Department (CPD). Lastly, it provides guidance about how to achieve CPD intake reform by better protecting complainant autonomy. - Minnesota Law Review - [Taking it to the Limit: Shifting U.S. Antitrust Policy Toward Standards Development](https://minnesotalawreview.org/supplement/taking-it-to-the-limit-shifting-u-s-antitrust-policy-toward-standards-development/) - by Jorge L. Contreras Available here. Excerpt: "The contrast drawn by Mr. Delrahim between unilateral and concerted conduct is exemplified by two recent cases at the intersection of antitrust law and standardization: on the unilateral side, the actions brought by competition agencies around the world, including the FTC, against Qualcomm, Inc. for a range of alleged - Minnesota Law Review - [Essay: The SAFE, the KISS, and the Note: A Survey of Startup Seed Financing Contracts](https://minnesotalawreview.org/supplement/essay-the-safe-the-kiss-and-the-note-a-survey-of-startup-seed-financing-contracts/) - By John F. Coyle & Joseph M. Green Available here. Excerpt: "This Essay aspires to bring light to the darkness. Drawing upon original lawyer survey data collected in the spring and summer of 2018, it offers a snapshot of the current landscape for startup seed financing contracts. This snapshot will be of interest to legal scholars - Minnesota Law Review - [Article: Aesthetic Play and Bad Intent](https://minnesotalawreview.org/supplement/article-aesthetic-play-and-bad-intent/) - By Andrew Jensen Kerr Available here. Abstract: "Threatening words or images are assumed by American courts to be non-art. But this threshold question of art status is complicated by the evolution of rap and performance art. There is no articulable way to discern art from non-art for these nontextual media, a problem compounded in the - Minnesota Law Review - [Essay: Preventing Sexual Harassment and Misconduct in Higher Education: How Lawyers Should Assist Universities in Fortifying Ethical Infrastructure](https://minnesotalawreview.org/supplement/essay-preventing-sexual-harassment-and-misconduct-in-higher-education-how-lawyers-should-assist-universities-in-fortifying-ethical-infrastructure/) - By Susan S. Fortney Available here. Excerpt: "In order to change the culture and climate in higher education and to improve policies and procedures, university administrators should use the analytical framework of ethical infrastructure to evaluate the organization’s formal and informal systems, as well as the climate that supports those systems. Using such a framework, - Minnesota Law Review - [Essay: Les Bleus and Black: A Football Elegy to French Colorblindness](https://minnesotalawreview.org/supplement/essay-les-bleus-and-black-a-football-elegy-to-french-colorblindness/) - By Khaled A. Beydoun. Available here Excerpt: "The turbulent ballad that is French Football reveals that colorblindness—for French footballers of color and the millions living in France that share their race, ethnicity or religion—is contingent upon excellence. This myth is fleeting, and demystified by racial realities on the ground, including the emergent white supremacist populism rising - Minnesota Law Review - [Essay: The Other Trade War](https://minnesotalawreview.org/supplement/essay-the-other-trade-war/) - By Kathleen Claussen. Available here. Excerpt: "The trade war is on: beginning in the first half of 2018, the United States has employed half-century-old domestic law to impose tariffs on select products affecting U.S. industries, and other countries have struck back with tariffs of their own on U.S. products coming from battleground U.S. states. It is - Minnesota Law Review - [Prosecuting Inequitable Conduct](https://minnesotalawreview.org/supplement/prosecuting-inequitable-conduct/) - - Minnesota Law Review - [Improving Familial and Communal Eldercare in the United States: Lessons from China and Japan](https://minnesotalawreview.org/supplement/improving-familial-and-communal-eldercare-in-the-united-states/) - by Hunter Bruton Available here As America struggles with healthcare reform the mid-twentieth century baby boom has blossomed into an elder boom. As our population continues to age, it becomes harder and harder to ensure better eldercare without substantially increasing costs. An often-overlooked possibility could help solve this problem: eldercare provided or supplemented by families and - Minnesota Law Review - [A New Social Contract: Corporate Personality Theory and the Death of the Firm](https://minnesotalawreview.org/supplement/a-new-social-contract-corporate-personality-theory-and-the-death-of-the-firm/) - In their article The Death of the Firm, June Carbone and Nancy Levit argue that, “the firm as entity is disappearing as a unit of legal analysis.” More specifically, they argue that by dismissing the corporation as a mere legal fiction and equating the rights of this legal fiction with the rights of its owners, - Minnesota Law Review - [Truth, Lies, and Power at Work](https://minnesotalawreview.org/supplement/truth-lies-and-power-at-work/) - Professor Estlund discusses Professor Norton's analysis on the collision of regulating the speech of employers with protecting employees, finding that Norton "makes a persuasive case that relative power should be and sometimes is relevant to the constitutionality of both speech restrictions and compelled disclosure of information." - Minnesota Law Review - [Heuristic Interventions in the Study of Intellectual Property](https://minnesotalawreview.org/supplement/heuristic-interventions-in-the-study-of-intellectual-property/) - Professor Silbey expands on the work of Professor Burk by elaborating on three of Burk's central points, while noting that Burk's work serves as a crucial step in explaining intellectual property as a social practice. - Minnesota Law Review - [Reining in Private Agents](https://minnesotalawreview.org/supplement/reining-in-private-agents/) - Professor Amitai Etzioni discusses the government's use of private contractors by examining three case studies: data privacy, private policing, and private military contractors. By examining the ways in which the government can avoid certain restrictions by relying on these private agents, Professor Etzioni suggests that a complete reconceptualization may be required. - Minnesota Law Review - [Mathis v. U.S. and the Future of the Categorical Approach](https://minnesotalawreview.org/supplement/mathis-v-u-s-and-the-future-of-the-categorical-approach/) - The categorical approach and its various iterations have caused confusion in many of the lower courts. Professor Evan Tsen Lee dissects the future of the categorical approach after the Supreme Court's ruling in Mathis v. United States, while suggesting that there may be alternatives. - Minnesota Law Review - [The Twice and Future President Revisited: Of Three-Term Presidents and Constitutional End Runs](https://minnesotalawreview.org/supplement/twice-and-future-president-revisited/) - Professor Bruce G. Peabody reexamines his 1999 piece published with Volume 83 of the Minnesota Law Review, entitled “The Twice and Future President: Constitutional Interstices and the Twenty-Second Amendment.” Peabody’s 1999 article has generated a significant amount of conversation since the time of its publication and the argument is again renewed in light of commentary surrounding - Minnesota Law Review - [A Place of Their Own: Crowds in the New Market for Equity Crowdfunding](https://minnesotalawreview.org/supplement/a-place-of-their-own-crowds-in-the-new-market-for-equity-crowdfunding/) - Crowdfunding was designed as an alternative regime to traditional securities regulation to help small businesses access capital. One problem with this new regime is that crowdfunding rules ignore the special characteristics of crowds. Crowds rely on group heuristics like the “wisdom of the crowd” and are subject to group inefficiencies like information cascades. Treating crowdfunding like traditional fundraising ignores how crowds behave - Minnesota Law Review - [Improving Technology Neutrality Through Compulsory Licensing](https://minnesotalawreview.org/supplement/improving-technology-neutrality-through-compulsory-licensing/) - Brad Greenberg’s article, Rethinking Technology Neutrality, challenges a fundamental premise of the current Copyright Act. The Act takes a technology neutral approach to defining the scope of copyright protection. Under the Act, old and new technologies should receive equal treatment with regard to copyright liability as a way to future-proof copyright law and prevent too-frequent - Minnesota Law Review - [Tie Votes and the 2016 Supreme Court Vacancy](https://minnesotalawreview.org/supplement/tie-votes-and-the-2016-supreme-court-vacancy/) - Professor Justin R. Pidot previews his forthcoming piece in Minnesota Law Review, “Tie Votes in the Supreme Court” by summarizing his findings and commenting on how the Justices may approach potential tie votes in Justice Scalia’s absence. - Minnesota Law Review - [Justice Scalia's Innocence Tetralogy](https://minnesotalawreview.org/supplement/justice-scalias-innocence-tetralogy/) - Justice Scalia’s record as it relates to the rights of criminal defendants is as varied as it is wide-ranging. Professor Lee Kovarsky examines the Justice Scalia’s impact on one of those doctrines: “actual innocence.” - Minnesota Law Review - [Justice Scalia's Jiggery-Pokery in Federal Arbitration Law](https://minnesotalawreview.org/supplement/justice-scalias-jiggery-pokery-in-federal-arbitration-law/) - In authoring three decisions on the Federal Arbitration Act in his final years on the Court, Justice Scalia played a crucial role in shaping this area of the law. Although Justice Scalia’s interest in the field may have only developed late in his career, Professor David S. Schwartz notes that it will not soon be - Minnesota Law Review - [Justice Scalia's Unparalleled Contributions to Administrative Law](https://minnesotalawreview.org/supplement/justice-scalias-unparalleled-contributions-to-administrative-law/) - Throughout his legal career, Justice Scalia displayed a great interest in and exercised great influence over the development of administrative law. Professor Richard J. Pierce, Jr. discusses the changes Justice Scalia helped to impart on the field during his decades on the Bench. - Minnesota Law Review - [Justice Scalia: Affirmative or Negative?](https://minnesotalawreview.org/supplement/justice-scalia-affirmative-or-negative/) - Justice Scalia’s experiences played a crucial role in shaping how Justice Scalia framed his arguments. Professor Stephen M. Griffin comments on the ways in which the Justice’s background may have influenced his constitutional theory and his writing style. - Minnesota Law Review - [Rescued from the Grave and Then Covered with Mud: Justice Scalia and the Unfinished Restoration of the Confrontation Right](https://minnesotalawreview.org/supplement/rescued-from-the-grave-and-then-covered-with-mud-justice-scalia-and-the-unfinished-restoration-of-the-confrontation-right/) - In drafting the Supreme Court’s decision in Crawford v. Washington, Justice Scalia brought back to life the Sixth Amendment’s Confrontation Clause. In Justice Scalia’s absence, Professor Richard D. Friedman sees the future development of the doctrine to be far from certain. - Minnesota Law Review - [Playing Favorites? Justice Scalia, Abortion Protests, and Judicial Impartiality](https://minnesotalawreview.org/supplement/playing-favorites-justice-scalia-abortion-protests-and-judicial-impartiality/) - By examining Justice Scalia’s First Amendment jurisprudence through the lens of abortion cases, Professor Daniel A. Farber comments on how judicial bias may have played a part in the Court’s decisions during this era. - Minnesota Law Review - [Remembering Justice Antonin Scalia](https://minnesotalawreview.org/supplement/remembering-justice-antonin-scalia/) - Justice Scalia’s presence on the bench nearly matches his overall doctrinal contributions. Professor Alan B. Morrison comments on Justice Scalia’s minimal record upon appointment to the Supreme Court, the challenges he presented to lawyers at oral argument, his aversion to legislative history, and his tendency towards writing colorful dissenting opinions and predicting doom and gloom - Minnesota Law Review - [Foreword: A Consequential Justice](https://minnesotalawreview.org/supplement/foreword-a-consequential-justice/) - When he visited the University of Minnesota in October 2015, Justice Scalia commented that Justice William Brennan was “the most influential Justice of the twentieth century.” Although their styles could not have been more different, Professor Robert A. Stein observes that both Justice Brennan and Justice Scalia will certainly be remembered as two of the - Minnesota Law Review - [Introduction](https://minnesotalawreview.org/supplement/introduction/) - Minnesota Law Review is pleased to present a collection of essays on Justice Antonin Scalia's impact on the Supreme Court. These essays aim to present a wide look at Justice Scalia’s many contributions to the Court during his decades on the Bench. While Justice Scalia was one of the most polarizing figures on the Court - Minnesota Law Review - [The Dormant Commerce Clause Wins One: Five Takes on Wynne and Direct Marketing Association](https://minnesotalawreview.org/supplement/the-dormant-commerce-clause-wins-one-five-takes-on-wynne-and-direct-marketing-association/) - October Term 2014 featured what is to date the most important state and local tax case since 1992’s Quill Corp. v. North Dakota. In Comptroller v. Wynne, the U.S. Supreme Court affirmed a state court decision holding unconstitutional Maryland’s refusal to grant a credit for taxes paid by a resident taxpayer to other states on - Minnesota Law Review - [Outstanding Constitutional and International Law Issues Raised by the United States-Puerto Rico Relationship](https://minnesotalawreview.org/supplement/outstanding-constitutional-and-international-law-issues-raised-by-the-united-states-puerto-rico-relationship/) - This Article touches upon some issues of fundamental importance to the several million nationally disenfranchised United States citizens that reside in Puerto Rico. I write with a modicum of uneasiness as a result of the uncertain terrain on which the United States-Puerto Rico relationship presently finds itself, firstly, by reason of two cases that are pending resolution by the Supreme Court - Minnesota Law Review - [The Supreme Court’s Quiet Expansion of Qualified Immunity](https://minnesotalawreview.org/supplement/supreme-courts-quiet-expansion-qualified-immunity-2/) - This Essay discusses the Supreme Court’s tendency in recent opinions to covertly expand the reach of the qualified immunity defense available to public officials in § 1983 civil rights suits. In particular, the Essay points out that the Court, often in per curiam rulings, has described qualified immunity in increasingly broad terms and has qualified - Minnesota Law Review - [The Supreme Court’s Quiet Expansion of Qualified Immunity](https://minnesotalawreview.org/supplement/supreme-courts-quiet-expansion-qualified-immunity/) - - Minnesota Law Review - [The Optimal Scope of Physicians’ Duty to Protect Patients’ Privacy](https://minnesotalawreview.org/supplement/optimal-scope-physicians-duty-protect-patients-privacy/) - When discussing the optimal scope of the duty to protect patients’ privacy, the literature compares two incommensurable interests: privacy and safety. Policymakers face a difficult task when trying to find an optimal solution, balancing these two, often conflicting, interests. In this article, we confront the trade-off between patient confidentiality and public safety as manifested in - Minnesota Law Review - [Paying High for Low Performance](https://minnesotalawreview.org/supplement/paying-high-performance/) - This Essay argues that regulatory reforms in the area of executive compensation introduced by the Dodd-Frank Act of 2010 have not yet achieved their purpose of linking executive pay with company performance. The rule on shareholder say-on-pay appears to have had limited success over the five proxy seasons since its adoption. The rule on pay - Minnesota Law Review - [Obergefell and the “New” Reproduction](https://minnesotalawreview.org/supplement/obergefell-new-reproduction/) - Alternative reproduction has become the new frontier in the continuing culture wars over the family. Commentators with longstanding anxieties over non-traditional kinship have turned their regulatory gaze to it, as have more progressive scholars who support non-traditional family formation but nevertheless favor proposals to regulate the “new kinship” and the “new reproduction." Excavating Obergefell v. - Minnesota Law Review - [The Limitations of Economic Reasoning in Analyzing Duress](https://minnesotalawreview.org/supplement/1694/) - My colleagues and friends, Mark Seidenfeld and Murat Mungan, have made an interesting attempt to reduce the doctrine of duress in contract law to an inquiry about “rent-seeking,” by which they mean attempts to redistribute rather than to produce wealth. There is much truth in their argument, and they are admirably sensitive to many factors that - Minnesota Law Review - [Due Process Limits on Accomplice Liability](https://minnesotalawreview.org/supplement/due-process-limits-accomplice-liability/) - In a prior piece in this journal, I noted some disturbing developments in the law of accomplice liability. By definition, complicity law attaches guilt to the accomplice for the criminal acts of others. Thus, no matter how trivial the assistance or commitment, she is as guilty as the actual criminal actor. The notion of guilt for subsequent crimes - Minnesota Law Review - [Tax Credits on Federally Created Exchanges: Lessons from a Legislative Process Failure Theory of Statutory Interpretation](https://minnesotalawreview.org/supplement/tax-credits-federally-created-exchanges-lessons-legislative-process-failure-theory-statutory-interpretation/) - This Essay advocates that the question of whether, under the Affordable Care Act, individuals who purchase insurance on federally created exchanges are eligible for tax credits should be interpreted using a recently proposed method of reading statutes – the “legislative process failure theory of statutory interpretation.” Under this theory, courts should not rely on traditional judicial - Minnesota Law Review - [[Insert Company Name] Sucks: A Response to Speech, Citizenry and the Market](https://minnesotalawreview.org/supplement/insert-company-name-sucks-response-speech-citizenry-market/) - This piece is a response to Deven Desai's Speech, Citizenry, and the Market: A Public Corporate Figure Doctrine. Our thanks to Mr. Crowe for publishing this excellent response piece with the Minnesota Law Review - Minnesota Law Review - [Clinging to the Common Law in an Age of Statutes: Criminal Law in the States](https://minnesotalawreview.org/supplement/clinging-common-law-age-statutes-criminal-law-states/) - Among the earliest adopters of the Model Penal Code, Illinois codified its entire General Part, including the provisions on accountability, legislatively altering numerous common law positions that required change. Thus, as of 1961, its accountability statute predicated accomplice liability on one’s purposefully giving aid to the principal actor. Unfortunately, those changes were resisted by the - Minnesota Law Review - [Restructuring the U.S. Tax Court:A Reply to Stephanie Hoffer and Christopher Walker’s The Death of Tax Court Exceptionalism](https://minnesotalawreview.org/supplement/restructuring-u-s-tax-courta-reply-stephanie-hoffer-christopher-walkers-death-tax-court-exceptionalism/) - This is an invited response piece to the Walker & Hoffer article, The Death of Tax Court Exceptionalism. Our special thanks to Professor Lederman for penning this excellent response. - Minnesota Law Review - [Regulating Pollen](https://minnesotalawreview.org/supplement/regulating-pollen/) - The most common allergen is pollen, and pollen causes the most common allergy, known as “hay fever.” While pollen allergies might appear to be the unavoidable cost of living with flowering plants, the suffering engendered by pollen allergies is largely our own creation. Plants will always flower, but people have built a world that increases - Minnesota Law Review - [Government Endorsement: A Reply to Nelson Tebbe’s Government Nonendorsement](https://minnesotalawreview.org/supplement/government-endorsement-reply-nelson-tebbes-government-nonendorsement/) - In this response to Nelson Tebbe’s Government Nonendorsement, Abner Greene continues to develop his “thick perfectionist” view of government speech, arguing that the state may use its speech powers to advance various views of the good, from left, center, and right, even on controversial issues. Greene supports Tebbe’s view that there are some limits on - Minnesota Law Review - [Sonia Sotomayor: Role Model of Empathy and Purposeful Ambition](https://minnesotalawreview.org/supplement/sonia-sotomayor-role-model-empathy-purposeful-ambition/) - In writing her memoir, My Beloved World, U.S. Supreme Court Justice Sonia Sotomayor expressly acknowledges that she is a public role model and embraces this responsibility by making herself accessible to a broad audience. As a public figure, she sees an opportunity to connect with others through an account of her life journey, with details - Minnesota Law Review - [No Explanation Required? A Reply to Jeffrey Bellin’s eHearsay](https://minnesotalawreview.org/supplement/explanation-required-reply-jeffrey-bellins-ehearsay/) - You see why I tell you I ain’t want to be no damn juror. Some dude just come by my house and tell me he going pay me money to say not guilty. Now I don’t know what to do, because if I tell the judge they’re going to know it’s me. I know, right. - Minnesota Law Review - [Substantial Government Interference with Prosecution Witnesses: The Ninth Circuit’s Decision in United States v. Juan](https://minnesotalawreview.org/supplement/substantial-government-interference-prosecution-witnesses-ninth-circuits-decision-united-states-v-juan/) - On January 7, 2013, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued its decision in United States v. Juan. As a matter of first impression, the Ninth Circuit held that the constitutional proscription on substantial governmental interference with defense witnesses also applies to prosecution witnesses. By extending the “substantial - Minnesota Law Review - [A Global Collection: Reviewing The Global Limits of Competition Law](https://minnesotalawreview.org/supplement/global-collection-reviewing-the-global-limits-competition-law/) - The Global Limits of Competition Law is the first installment in Daniel Sokol’s and Ioannis Lianos’s ambitious new series from Stanford University Press, Global Competition Law and Economics. The project is ambitious because it takes on a potentially unbounded topic, and one that is constantly changing. It is also ambitious because Sokol and Lianos enter - Minnesota Law Review - [When Too Little Is Too Much: Why the Supreme Court Should Either Explain Its Opinions or Keep Them to Itself](https://minnesotalawreview.org/supplement/much-supreme-court-explain-opinions/) - In 1972, the Supreme Court released what appears on its face to be one of the simplest opinions in its history. That decision, Baker v. Nelson, read, in its entirety: “The appeal is dismissed for want of a substantial federal question.” That’s it. Eleven straightforward words. But, as is often the case in the law, - Minnesota Law Review - [More than Winners and Losers: The Importance of Moving Climate and Environmental Policy Debate Toward a More Transparent Process](https://minnesotalawreview.org/supplement/winners-losers-importance-moving-climate-environmental-policy-debate-transparent-process/) - Professor J.B. Ruhl’s article, The Political Economy of Climate Change Winners, seeks to break down this wall of silence. In his article, Professor Ruhl sets out a case for the existence of “climate change winners,” the importance of recognizing this phenomenon for purposes of crafting climate change policy, and policy proposals that he believes will - Minnesota Law Review - [Burying Best Interests of the Resulting Child: A Response to Professors Crawford, Alvaré, and Mutcherson](https://minnesotalawreview.org/supplement/burying-interests-resulting-child-response-professors-crawford-alvare-mutcherson/) - In this Article, Professor Cohen responds to Articles by Professors Crawford, Alvaré, and Mutcherson, who wrestle with the arguments he raises in Regulating Reproduction: The Problem with Best Interests and Beyond Best Interests. - Minnesota Law Review - [In Defense of Future Children: A Response to Cohen's Beyond Best Interests](https://minnesotalawreview.org/supplement/defense-future-children-response-cohens-beyond-interests/) - This essay responds to I. Glenn Cohen’s articles, Regulating Reproduction and Beyond Best Interests, by asserting that Cohen’s work fails to attain his goal of fundamentally shifting the terrain upon which discussions about exercising control over reproduction takes place. The response offers four interrelated observations about why Cohen’s work is ultimately unconvincing. First, his work - Minnesota Law Review - [Authentic Reproductive Regulation](https://minnesotalawreview.org/supplement/authentic-reproductive-regulation/) - In this response to I. Glenn Cohen's article, Regulating Reproduction, Professor Crawford notes the ways in which Professor Cohen’s questioning of “best interests” logic challenges legal scholars to reexamine received wisdom. She then evaluates Professor Cohen’s critique of "best interests" in the context of income taxation of surrogates. Professor Crawford concludes that Professor Cohen's “unmasking” - Minnesota Law Review - [Crawford v. Washington: What Would Justice Thomas Do?](https://minnesotalawreview.org/supplement/crawford-v-washington-justice-thomas-do/) - In Crawford v. Washington, the Supreme Court overruled the Ohio v. Roberts "reliability" test for the admission of hearsay statements as against a Confrontation Clause objection in criminal cases. The Court did so in part on the basis that the Roberts test was inherently unpredictable. The Court replaced the Roberts test with a case-by-case analysis - Minnesota Law Review - [A Response to Professor I. Glenn Cohen's Regulating Reproduction: The Problem with Best Interests](https://minnesotalawreview.org/supplement/response-professor-i-glenn-cohens-regulating-reproduction-problem-interests/) - In this response to Professor I. Glenn Cohen’s article, Regulating Reproduction: The Problem with Best Interests, Professor Alvaré argues that rules restricting reproductive freedom serve an important societal purpose and need not be abandoned simply because they cannot be supported by a “best interests of the resulting child” (“BIRC”) rationale. Professor Alvaré acknowledges that such - Minnesota Law Review - [A Response to Appleton and Pollak](https://minnesotalawreview.org/supplement/response-appleton-pollak/) - This article responds to Exploring the Connections Between Adoption and IVF: Twibling Analyses, by Professors Susan Frelich Appleton and Robert A. Pollak. Professors Cohen and Chen begin by emphasizing several valuable contributions made in Professors Appleton and Pollak’s article. Then, in an effort to crystallize a number of important points, Professors Cohen and Chen note - Minnesota Law Review - [A Better Solution to Moral Hazard in Employment Arbitration: It Is Time to Ban Predispute Binding Arbitration Clauses? A Response to LeRoy](https://minnesotalawreview.org/supplement/solution-moral-hazard-employment-arbitration-time-ban-predispute-binding-arbitration-clauses-response-leroy/) - In this Response, Professors Bingham and Good take a second look at Professor Michael LeRoy's statistics from his article, Do Courts Create Moral Hazard? When Judges Nullify Employer Liability in Arbitrations, and draw somewhat different conclusions. They then suggest a different policy prescription to address the problem: banning mandatory predispute arbitration clauses in the employment context altogether. - Minnesota Law Review - [The National Surveillance State: A Response to Balkin](https://minnesotalawreview.org/supplement/national-surveillance-state-response-balkin/) - In this Response, Professor Kerr concurs with Professor Balkin in The Constitution and the National Surveillance State that the development of new technology presents problems for the law. But for Kerr, those problems do not demand a shift to a new kind of governance, but rather adaptation of the law to the new technology. - Minnesota Law Review - [Climate Change and Reassessing the "Right" Level of Government: A Response to Bronin](https://minnesotalawreview.org/supplement/climate-change-reassessing-right-level-government-response-bronin/) - In this Response, Professor Klass further explores and amplifies the federalism issues that Professor Sara Bronin introduced in her article The Quiet Revolution Revived: Sustainable Design, Land Use, and the States. Professor Klass ultimately advocates applying the "cooperative federalism" approach used in other areas of environmental law to the problems of local regulation of green building. - Minnesota Law Review - [Speaking of Silence: A Reply to Making Defendants Speak](https://minnesotalawreview.org/supplement/speaking-silence-reply-making-defendants-speak/) - In this Response, Professors Judges and Cribari concentrate on explaining why they do not share Professor Sampsell-Jones's underlying antipathy to the Fifth Amendment right to silence at trial. That antipathy, also frequently expressed by other commentators, is reflected in the article’s proposed rejection of Griffin v. California’s prohibition regarding adverse inferences from the defendant’s assertion - Minnesota Law Review - [Innovating Between and Within Technological Paradigms: A Response to Samuelson](https://minnesotalawreview.org/supplement/innovating-technological-paradigms-response-samuelson/) - In this Response, Professor Lee builds on Professor Samuelson's Are Patents on Interfaces Impeding Interoperability? to emphasize that the social costs and benefits of interface patents are highly context-specific. Invoking the concept of "technological paradigms," Professor Lee argues that strong interface patents can promote significant technological advances in contested industries, but that ex post policy interventions - Minnesota Law Review - [Justice David Stras Tribute](https://minnesotalawreview.org/supplement/justice-david-stras-tribute/) - Before his appointment to the Minnesota State Supreme Court, Justice David Stras was the faculty advisor to the Minnesota Law Review . In recognition of his appointment, this Tribute features essays from Dean David Wippman, Professor Robert Stein, Professor Tim Johnson, and Professor Ryan Scott. - Minnesota Law Review - [Exploring the Connections Between Adoption and IVF: Twibling Analyses](https://minnesotalawreview.org/supplement/exploring-connections-adoption-ivf-twibling-analyses/) - This essay responds to Trading-Off Reproductive Technology and Adoption: Does Subsidizing IVF Decrease Adoption Rates and Should It Matter?, in which I. Glenn Cohen and Daniel L. Chen analyze what they describe as an arm-chair principle called “the substitution theory”–the claim that facilitating treatment for infertility, including subsidizing in vitro fertilization (IVF), decreases adoptions. Cohen - Minnesota Law Review - [Toward a Theory of Extraterritoriality](https://minnesotalawreview.org/supplement/theory-extraterritoriality/) - In this Response to Jeffrey Meyer’s Dual Illegality and Geoambiguous Law: A New Rule for Extraterritorial Application of U.S. Law, Professor Gibney commends Professor Meyer’s efforts to theorize a comprehensive framework for understanding the extraterritorial scope and limits of United States law. Professor Meyer’s proposal would give a territorial reading to U.S. law unless (1) - Minnesota Law Review - [Comment: “Anticompetitive Effect"](https://minnesotalawreview.org/supplement/commentanticompetitive-effect/) - Anticompetitive Effect by Judge Cudahy and Mr. Devlin focuses on a critical issue in antitrust jurisprudence: whether anticompetitive effect should be evaluated under an "aggregate welfare approach to competition" or under a "consumer welfare" approach. What hangs in the balance is the future efficacy of both public and private enforcement. This Comment traces the history - Minnesota Law Review - [Right Question, Wrong Answer: A Response to Professor Epstein and the "Permititis" Challenge](https://minnesotalawreview.org/supplement/question-wrong-answer-response-professor-epstein-permititis-challenge/) - In this Response to Professor Epstein’s Against Permititis: Why Voluntary Organizations Should Regulate the Use of Cancer Drugs, Professor Hall argues that while he agrees with Professor Epstein’s assessment of the problems with the FDA drug approval process, he disagrees with his proposed solution. Professor Hall argues that Professor Epstein’s solution—to reduce the FDA to an - Minnesota Law Review - [In Defense of Intellectual Property Anxiety: A Response to Professor Fagundes](https://minnesotalawreview.org/supplement/defense-intellectual-property-anxiety-response-professor-fagundes/) - In this Response to Professor Fagundes’s Property Rhetoric and the Public Domain, Professor Perzanowski expresses skepticism about two assumptions underlying the argument for embracing property rhetoric to promote the public domain. This argument assumes, first, public recognition of social discourse theory as an account of property and, second, rhetorical advantages of social discourse theory that are comparable to those of more familiar notions of - Minnesota Law Review - [On Silence: A Reply to Professors Cribari and Judges](https://minnesotalawreview.org/supplement/silence-reply-professors-cribari-judges/) - In this Reply, Professor Sampsell-Jones responds to Speaking of Silence: A Reply to Making Defendants Speak by Professors Cribari and Judges. He argues that their theory of the Self-Incrimination Clause, which relies on intuition to determine which practices are necessary to “test the prosecution” in criminal cases, is lacking in both textual support and practical - Minnesota Law Review - [In the Shadow of the Omnipresent Claw: In Response to Professors Cherry & Wong](https://minnesotalawreview.org/supplement/in-the-shadow-of-the-omnipresent-claw-in-response-to-professors-cherry-wong-2/) - **Editor's note: This piece responds to Reply: Clawback to the Future by Miriam A. Cherry and Jarrod Wong. As the American economy continues to totter against an ever-growing populist momentum, it seems likely that clawback mechanisms of various sorts will be put to increasing use in the coming months and years.[1] Very generally, a clawback - Minnesota Law Review - [Reply: Clawback to the Future](https://minnesotalawreview.org/supplement/reply-clawback-to-the-future/) - In Clawbacks: Prospective Contract Measures in an Era of Excessive Executive Compensation and Ponzi Schemes (the “Article”), we undertook the task of proposing a doctrine of clawbacks that would not only furnish a framework for analyzing the term more systematically, but would also describe the ways the doctrine would relate to established rules of contract - Minnesota Law Review - [Beyond Exclusion: A Review of Peter J. Spiro’s “Beyond Citizenship”](https://minnesotalawreview.org/supplement/beyond-exclusion-a-review-of-peter-j-spiros-beyond-citizenship/) - Introduction: America the Exclusive? Few people would have predicted the precipitous decline in power and prestige that the twenty-first century has dealt the United States. Humbled by the surprise attacks on 9/11, humiliated by its poor performance in both the Afghanistan and Iraq wars, and now hobbled by a staggering financial crisis, the United States - Minnesota Law Review ## Articles - [The <em>Skidmore</em> Compromise: Interpreting <em>Skidmore</em> as a Tiebreaker to Preserve Judicial Wisdom in the Era of <em>Loper Bright</em>](https://minnesotalawreview.org/article/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 lawreview - Minnesota Law Review - [Waging the Battle for Society's Soul: The Constitutionality of Juvenile Transfer Legislation in the Wake of <em>Jones v. Mississippi</em>](https://minnesotalawreview.org/article/waging-the-battle-for-societys-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 lawreview - Minnesota Law Review - [The Poly Problem in Zoning: Redefining "Family" for a Changing Society](https://minnesotalawreview.org/article/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: lawreview - Minnesota Law Review - [The Crisis in U.S. Cancer Care: Law, Markets, and Privatization](https://minnesotalawreview.org/article/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 lawreview - Minnesota Law Review - [Regulatory History and Judicial Review](https://minnesotalawreview.org/article/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 lawreview - Minnesota Law Review - [The Innocence Trap](https://minnesotalawreview.org/article/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 lawreview - Minnesota Law Review - [Bankruptcy as a National Security Risk](https://minnesotalawreview.org/article/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 lawreview - Minnesota Law Review - [Immigration, Federalism, and the Invasion Clauses: Who Has a Seat at the Table in Disputes Over the State Power to Repel "Immigrant Invaders"](https://minnesotalawreview.org/article/immigration-federalism-and-the-invasion-clauses-who-has-a-seat-at-the-table-in-disputes-over-the-state-power-to-repel-immigrant-invaders/) - By MEGAN NIEMITALO. Full Text. In Arizona v. United States, the Supreme Court famously invalidated an Arizona statute that criminalized immigration violations and empowered state officials to enforce immigration law. Arizona seemed to settle the issue of whether states can regulate immigration for the following decade. In the last year, however, questions around the division lawreview - Minnesota Law Review - [Pressing Charges: Criminal Fees and the Excessive Fines Clause](https://minnesotalawreview.org/article/pressing-charges-criminal-fees-and-the-excessive-fines-clause/) - By ANNEMARIE FOY. Full Text. Millions of people owe money to the government as a consequence of a criminal charge. But while some of that debt is tied to fines or restitution, much of it is levied as fees, or payments owed to the government for the administration of a defendant's criminal proceedings. Criminal fees lawreview - Minnesota Law Review - [Exempt but Not Immune: Why the Section 501(c)(3) Tax Exemption Amounts to Federal Financial Assistance and Demands that Private Schools Comply with Title IX](https://minnesotalawreview.org/article/exempt-but-not-immune-why-the-section-501c3-tax-exemption-amounts-to-federal-financial-assistance-and-demands-that-private-schools-comply-with-title-ix/) - By ELLEN BART. Full Text. Title IX of the Education Amendments Act of 1972 (Title IX) prohibits discrimination on the basis of sex in education programs and activities that receive federal financial assistance and ensures that federal funds are not used to support discriminatory practices. Independent, non-public, educational institutions try to escape compliance with Title lawreview - Minnesota Law Review - [Unwanted Pregnancy: Sex, Contraception, and the Limits of Consent](https://minnesotalawreview.org/article/unwanted-pregnancy-sex-contraception-and-the-limits-of-consent/) - By DEBORAH TUERKHEIMER. Full Text. Rape exceptions to abortion bans, widely popular among the American electorate, are cleaved from a rule that defines pregnancy as the byproduct of choice. According to the logic of this rule and its remarkably limited exception, a person who is not raped consents to sex and therefore to the pregnancy lawreview - Minnesota Law Review - [Insurers as Contract Influencers](https://minnesotalawreview.org/article/insurers-as-contract-influencers/) - By DAVID A. HOFFMAN & RICK SWEDLOFF. Full Text. Contract boilerplate degrading consumers' litigation options is omnipresent, but a little mysterious. And that's not just because no one reads it. We know that terms mandating arbitration, exculpating liability, requiring individualized litigation, and shifting risk have proliferated in the last generation. But consumer contracts' production and lawreview - Minnesota Law Review - [The Economic Structure of Trade Secret Law](https://minnesotalawreview.org/article/the-economic-structure-of-trade-secret-law/) - By TUN-JEN CHIANG. Full Text. The standard economic account of trade secret law focuses on providing incentives for creating new inventions. The incentive-to-invent theory, however, provides little explanation for why the key doctrinal features of trade secret law are structured the way that they are. For example, providing ex ante incentives to invent does not lawreview - Minnesota Law Review - [Major-Questions Lenity](https://minnesotalawreview.org/article/major-questions-lenity/) - By JOEL S. JOHNSON. Full Text. Both the historic rule of lenity and the new major questions doctrine rest on a fundamental commitment to the separation of powers for important policy questions. In light of that shared justification, the logic of the major questions doctrine in the administrative-law context has much to offer lenity in lawreview - Minnesota Law Review - [Machine Gun Funk: The Unusual Analysis of "Dangerous and Unusual"](https://minnesotalawreview.org/article/machine-gun-funk-the-unusual-analysis-of-dangerous-and-unusual/) - By GREGORY S. PARKS & VIVIAN BOLEN. Full Text. lawreview - Minnesota Law Review - [Nipping it in the Bud: The Promise and Perils of Tort Litigation in Addressing the Health Harms of High-THC Products](https://minnesotalawreview.org/article/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. lawreview - Minnesota Law Review - [Exceptional Cases](https://minnesotalawreview.org/article/exceptional-cases/) - By EMILY CAUBLE. Full Text. lawreview - Minnesota Law Review - [The Good, the Bad, and the Ugly: A Comparative Constitutional Analysis of Whistleblowing Speech, the Government's Managerial Domain, and the Imperatives of Democratic Self-Government](https://minnesotalawreview.org/article/the-good-the-bad-and-the-ugly-a-comparative-constitutional-analysis-of-whistleblowing-speech-the-governments-managerial-domain-and-the-imperatives-of-democratic-self-government/) - By RONALD J. KROTOSZYNSKI, JR. Full Text. Since issuing its 1968 landmark decision in Pickering, which first recognized that the First Amendment protects government employees' speech about matters of public concern, the U.S. Supreme Court has proceeded to whittle away First Amendment protections for government employees. The Justices have done so by adopting a series lawreview - Minnesota Law Review - [The Penalty Is Declined: The NFL's Exclusive Streaming Agreements and the Limits of Antitrust Law](https://minnesotalawreview.org/article/the-penalty-is-declined-the-nfls-exclusive-streaming-agreements-and-the-limits-of-antitrust-law/) - By WILLIAM HOLT. Full Text. The National Football League's (NFL) decision to grant NBCUniversal's Peacock streaming service exclusive rights to carry the 2023–24 wild-card matchup between the Kansas City Chiefs and the Miami Dolphins signaled a major shift in the league's media distribution strategy. Football fans that had long depended on free, over-the-air broadcasts for lawreview - Minnesota Law Review - ["Pollution Does Not [sic] Discriminate": <em>Louisiana v. EPA</em>, Disparate Impact, and the Fight for Environmental Justice in a Hostile Climate](https://minnesotalawreview.org/article/pollution-does-not-sic-discriminate-louisiana-v-epa-disparate-impact-and-the-fight-for-environmental-justice-in-a-hostile-climate/) - By NAOMI BRIM. Full Text. Human-induced climate change hurts people. Environmental burdens impact a person's ability to live freely, in good health, and with loved ones. And in the United States, people in positions of political authority and decision-making—who are predominantly white and high-income—use the legal system to push environmental harms disproportionately onto low-income, Black, lawreview - Minnesota Law Review - [Bare Analysis: Prison Visitor Strip and Body-Cavity Searches and Federal Courts' Insufficient Fourth Amendment Analysis](https://minnesotalawreview.org/article/bare-analysis-prison-visitor-strip-and-body-cavity-searches-and-federal-courts-insufficient-fourth-amendment-analysis/) - By TRISTEN LINDELL. Full Text. Strip and body-cavity searches are among the most egregious invasions of personal privacy that the government can impose. The Fourth Amendment, as interpreted by the Supreme Court, demands that courts thoroughly analyze these searches. Courts must consider not only the suspicion that warranted the search, but the way the search lawreview - Minnesota Law Review - [Securitizing the University](https://minnesotalawreview.org/article/securitizing-the-university/) - By MARYAM JAMSHIDI. Full Text. Since October 7, 2023, public and private actors have doubled down on efforts to securitize the American university. In large part, these initiatives aim to quash a vocal pro-Palestine movement that has become highly visible across U.S. campuses since October 7th. In targeting this group, these efforts have variously treated lawreview - Minnesota Law Review - [AI Companions and the Lessons of Family Law](https://minnesotalawreview.org/article/ai-companions-and-the-lessons-of-family-law/) - By CLARE HUNTINGTON. Full Text. Virtual friends and lovers powered by artificial intelligence are rapidly moving to the center of our emotional and social lives. Millions of people turn to AI companions every day for conversation, romance, sexual intimacy, therapy, and education. AI companionship holds promise, potentially reducing loneliness, supporting people without access to mental lawreview - Minnesota Law Review - [States as Shields](https://minnesotalawreview.org/article/states-as-shields/) - By LINDSAY F. WILEY. Full Text. State laws that aim to shield providers of reproductive health and gender-affirming care from the punitive actions of out-of-state officials raise thorny questions. Can the federal courts, Congress, or the Trump Administration require New York officials to enforce a Texas ban on abortion or gender-affirming care against a New lawreview - Minnesota Law Review - [The Four Horsemen of the New Separation of Powers: The Environmental Law Implications of <em>West Virginia</em>, <em>Sackett</em>, <em>Loper Bright</em>, and <em>Corner Post</em>](https://minnesotalawreview.org/article/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 lawreview - Minnesota Law Review - [Environmental and Energy Regulation Reformation: Challenges and Solutions After <em>West Virginia v. EPA</em>, <em>Sackett v. EPA</em>, and <em>Loper Bright Enterprises v. Raimondo</em>](https://minnesotalawreview.org/article/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. lawreview - Minnesota Law Review - [The Bogeyman of Environmental Regulation: Federalism, Agency Preemption, and the Roberts Court](https://minnesotalawreview.org/article/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 lawreview - Minnesota Law Review - [Filling the Sackett Gap: The Private Governance Option](https://minnesotalawreview.org/article/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 lawreview - Minnesota Law Review - [The Impact of <em>Loper Bright v. Raimondo</em>: An Empirical Review of the First Six Months](https://minnesotalawreview.org/article/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 lawreview - Minnesota Law Review - [Water Flowing Down Wall Street](https://minnesotalawreview.org/article/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. lawreview - Minnesota Law Review - [Catching Nutrients in a Net: Collective Action, Institutional Impediments, and the Mississippi River Watershed](https://minnesotalawreview.org/article/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 lawreview - Minnesota Law Review - [The Clean Water Act and Avoidance Creep](https://minnesotalawreview.org/article/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 lawreview - Minnesota Law Review - [Renewable Energy Federalism 2.0](https://minnesotalawreview.org/article/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. lawreview - Minnesota Law Review - [Toward a Dynamic View of Corporate Purpose](https://minnesotalawreview.org/article/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 lawreview - Minnesota Law Review - [Closing in on the Patent Troll: State Legislatures’ Role in Combatting Trolling Behavior](https://minnesotalawreview.org/article/closing-in-on-the-patent-troll-state-legislatures-role-in-combatting-trolling-behavior/) - By WILL ROBERTS. Full Text. In the United States, entities known as patent trolls purchase patents solely for the purpose of threatening and bringing litigation and present a significant threat to innovation and economic progress. The question is: Who will rise to the occasion and stop them? In the face of federal inaction, state legislatures lawreview - Minnesota Law Review - [Building Bridges: Queer Rights in and out of the Courts](https://minnesotalawreview.org/article/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 lawreview - Minnesota Law Review - [Against Attorney General Self-Referral in Immigration Law](https://minnesotalawreview.org/article/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 lawreview - Minnesota Law Review - [Suspecting with Data](https://minnesotalawreview.org/article/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 lawreview - Minnesota Law Review - [Forced Arbitration in the Fortune 500](https://minnesotalawreview.org/article/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 lawreview - Minnesota Law Review - [Racial Disparities in Crime-Based Removal Proceedings](https://minnesotalawreview.org/article/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’ lawreview - Minnesota Law Review - [Who Watches the Watchers?: FINRA, Self-Regulatory Organizations, and the Next Evolution of Appointment and Removal Jurisprudence](https://minnesotalawreview.org/article/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 lawreview - Minnesota Law Review - [Asking the Right Questions: An Emergency Action Exception to the Major Questions Doctrine](https://minnesotalawreview.org/article/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 lawreview - Minnesota Law Review - [Legal Academia’s White Gaze](https://minnesotalawreview.org/article/legal-academias-white-gaze/) - By RENEE NICOLE ALLEN. Full Text. For Black law faculty, Blackness, the Black experience, and Black legal and social identity are not trends. Yet, there are inflection points where legal scholarship about race, particularly Blackness, is in vogue. The most recent rise in such legal scholarship came in the aftermath of George Floyd’s murder and the lawreview - Minnesota Law Review - [Equity for American Indian Families](https://minnesotalawreview.org/article/equity-for-american-indian-families/) - By NEOSHIA R. ROEMER. Full Text. For the better part of two centuries, the cornerstone of federal Indian policy was destabilizing and eradicating tribal governments. In the process, federal Indian policy also dismantled American Indian families via child removal. Attempting to equalize American Indians through the practice of assimilation, decades of Indian child removal policies lawreview - Minnesota Law Review - [Minimal Justiciability](https://minnesotalawreview.org/article/minimal-justiciability/) - By RILEY T. KEENAN. Full Text. Federal courts adjudicate only justiciable disputes. But justiciable as to whom? The Supreme Court has hinted at an answer, holding that at least one plaintiff must show standing for each remedy sought in a federal case. But it has never explained this “one-plaintiff rule,” and recently some scholars have lawreview - Minnesota Law Review - [A Democratic Participation Model for Corporate Governance](https://minnesotalawreview.org/article/a-democratic-participation-model-for-corporate-governance/) - By GRANT M. HAYDEN and MATTHEW T. BODIE. Full Text. Corporate law is in the grip of a fundamental conundrum: whether corporations should seek only to serve shareholders or instead attend to the interests of all stakeholders. The doctrine of shareholder primacy, which focuses the corporation’s attention on the goal of maximizing shareholder wealth, has lawreview - Minnesota Law Review - [Judging Demeanor](https://minnesotalawreview.org/article/judging-demeanor/) - By KIEL BRENNAN-MARQUEZ and JULIA SIMON-KERR. Full Text. This Article challenges the conventional wisdom that defendant demeanor—affect, body language, and physical appearance—helps juries assess guilt. On the contrary, we show that demeanor evidence poses an inherent risk of propensity-based reasoning. It invites jurors to convict defendants based on whether they “look like criminals,” rather than lawreview - Minnesota Law Review - [Critical Curriculum Design: Teaching Law in an Age of Rising Authoritarianism](https://minnesotalawreview.org/article/critical-curriculum-design-teaching-law-in-an-age-of-rising-authoritarianism/) - By RACHEL LÓPEZ. Full Text. lawreview - Minnesota Law Review - [John Roberts’ Supreme Court: The Triumph of Partisanship and Ideology Over Precedent](https://minnesotalawreview.org/article/john-roberts-supreme-court-the-triumph-of-partisanship-and-ideology-over-precedent/) - By DAVID SCHULTZ & JACOB BOURGAULT. Full Text. lawreview - Minnesota Law Review - [Tax Talk and <em>Taxing Sugar Babies</em>](https://minnesotalawreview.org/article/tax-talk-and-taxing-sugar-babies/) - By BLAINE G. SAITO. Full Text. lawreview - Minnesota Law Review - [The Liminality of Transactional Relationships](https://minnesotalawreview.org/article/the-liminality-of-transactional-relationships/) - By VICTORIA J. HANEMAN. Full Text. lawreview - Minnesota Law Review - [Commodification, Precarity, and Identity: A Review of Professor Bridget Crawford’s <em>Taxing Sugar Babies</em>](https://minnesotalawreview.org/article/commodification-precarity-and-identity-a-review-of-professor-bridget-crawfords-taxing-sugar-babies/) - By TESSA DAVIS. Full text. lawreview - Minnesota Law Review - [Diversity Messaging After Affirmative Action](https://minnesotalawreview.org/article/diversity-messaging-after-affirmative-action/) - By NANCY LEONG. Full Text. Appendix here. Many colleges and universities communicate publicly that they value racial diversity—a practice this Article will call diversity messaging. Yet growing hostility to race-consciousness by courts, legislators, and other public figures has made diversity messaging increasingly fraught. This Article examines empirically whether law schools changed their diversity messaging following lawreview - Minnesota Law Review - [Diversity Messaging After Affirmative Action Appendix](https://minnesotalawreview.org/article/diversity-messaging-after-affirmative-action-appendix/) - lawreview - Minnesota Law Review - [150 Years of Detox: How Inadequate Dietary Supplement Regulation Undermines Consumer Safety in the Weight Loss Industry](https://minnesotalawreview.org/article/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, lawreview - Minnesota Law Review - [Law for the Rich](https://minnesotalawreview.org/article/law-for-the-rich/) - By ALEX RASKOLNIKOV. Full Text. With top incomes and wealth reaching historic highs, scholars and politicians have proposed new taxes and novel legal rules aimed at reversing the emergence of the new Gilded Age. Yet while new taxes target the rich directly by imposing greater burdens only on those with incomes or wealth above multi-million-dollar lawreview - Minnesota Law Review - [Debt, Work, and the State](https://minnesotalawreview.org/article/debt-work-and-the-state/) - By KATE ELENGOLD. Full Text. In every state and the District of Columbia, an individual who owes a debt to the state can lose their license to work. Without the ability to make a living, it is much harder to pay off debt. Although using occupational license restrictions as a debt collection tool appears nonsensical, lawreview - Minnesota Law Review - [Unpunishment Purposes](https://minnesotalawreview.org/article/unpunishment-purposes/) - By MEREDITH ESSER. Full Text. Sentencing scholarship often begins by exploring the traditional purposes of punishment: deterrence, retribution, incapacitation, and rehabilitation. However, little scholarship exists addressing how these four punishment purposes apply in the post- sentencing or second-look contexts. Further, abstract theories of sentencing can often seem sterile and disconnected from the realities of how lawreview - Minnesota Law Review - [Investor Justice](https://minnesotalawreview.org/article/investor-justice/) - By NICOLE IANNARONE. Full Text. There is a systemic flaw in the investor protection landscape. Unrepresented investors face off against well-resourced repeat- player firms that almost always have lawyers. While consumers face similar challenges in civil courts, in forced securities arbitration, the decisionmaker may not have a law degree, is prohibited from conducting any outside lawreview - Minnesota Law Review - [Green Gatekeepers](https://minnesotalawreview.org/article/green-gatekeepers/) - By LUCA ENRIQUES, ALESSANDRO ROMANO, AND ANDREW F. TUCH. Full Text. Products are routinely labeled “carbon neutral,” “recycled,” “biodegradable,” “ocean-friendly,” and “sustainable.” Bonds are marketed as “green” and mutual funds as “ESG,” while firms may pledge to become “net zero.” But are statements concerning environmental qualities reliable? It is often hard for consumers and investors lawreview - Minnesota Law Review - [Reconceptualizing “Background Principles” in Takings Law](https://minnesotalawreview.org/article/reconceptualizing-background-principles-in-takings-law/) - By TIMOTHY M. MULVANEY. Full Text. Both libertarians and progressives rejoiced in the result reached by the Supreme Court in the 2023 matter of Tyler v. Hennepin County. This Article asserts that such unified celebration has overshadowed the extent to which the Supreme Court’s reasoning calls into question even our most foundational assumptions about the lawreview - Minnesota Law Review - [Taxing Sugar Babies](https://minnesotalawreview.org/article/taxing-sugar-babies/) - By BRIDGET J. CRAWFORD. Full Text. How people talk about tax reflects both personal beliefs and larger cultural attitudes. In many cases, whether and how a potential taxpayer understands their activities in tax terms may also reveal attitudes about themselves and the value that society assigns to those activities. This Article examines how sugar daddies lawreview - Minnesota Law Review - [Not-So-Special Solicitude](https://minnesotalawreview.org/article/not-so-special-solicitude/) - By KATHERINE MIMS CROCKER. Full Text. In a high-profile 2023 case about state standing to sue in federal court, Justice Gorsuch deemed it “hard not to wonder why” the majority said “nothing about ‘special solicitude.’” The silence was indeed surprising, for in a landmark decision several years earlier, the Supreme Court had declared that states lawreview - Minnesota Law Review - [Protecting Minnesota’s Whistleblowers: Ending the Application of <em>McDonnell Douglas</em> to the Minnesota Whistleblower Act](https://minnesotalawreview.org/article/protecting-minnesotas-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. lawreview - Minnesota Law Review - [Forgotten Victims: Exploring the Right to Family Integrity as a Form of Redress for Children of Wrongfully Convicted Parents](https://minnesotalawreview.org/article/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 lawreview - Minnesota Law Review - [“Key” Tam: Giving Teeth to Federal Data Security Enforcement](https://minnesotalawreview.org/article/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 lawreview - Minnesota Law Review - [May Contain Peanuts, Eggs, and a “Natural” Solution: How to Challenge Food Manufacturers’ Harmful Use of Precautionary Allergen Labels](https://minnesotalawreview.org/article/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 lawreview - Minnesota Law Review - [As Punishment for Arrests: Involuntary Servitude Under the Housekeeping Exception to the Thirteenth Amendment](https://minnesotalawreview.org/article/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 lawreview - Minnesota Law Review - [Definite Convictions: <em>United States v. Alt</em> and the Seventh Circuit’s Prohibition on Defining “Beyond a Reasonable Doubt”](https://minnesotalawreview.org/article/definite-convictions-united-states-v-alt-and-the-seventh-circuits-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 lawreview - Minnesota Law Review - [Reconstruction, and the Unfulfilled Promise of Antitrust](https://minnesotalawreview.org/article/reconstruction-and-the-unfulfilled-promise-of-antitrust/) - By BENNETT CAPERS and GREGORY DAY. Full Text. Wealth inequality remains as wide, and as troubling, as it was a half-century ago. While scholars have offered various explanations, there is a contributor that has escaped serious scrutiny: state monopoly power. It is not just that there is a long history of states and municipalities using lawreview - Minnesota Law Review - [Repurposed Energy](https://minnesotalawreview.org/article/repurposed-energy/) - By ALEXANDRA B. KLASS & HANNAH WISEMAN. Full Text. Wildfires, weather extremes, and other conditions induced partially by climate change add urgency to the project of accelerating the clean energy transition from fossil fuels to zero-carbon energy infrastructure. Yet the hurdles to accomplishing such a massive industrial-scale transition are daunting. Indeed, large renewable energy generation lawreview - Minnesota Law Review - [Lawyering in the Age of Artificial Intelligence](https://minnesotalawreview.org/article/lawyering-in-the-age-of-artificial-intelligence/) - By JONATHAN H. CHOI, AMY B. MONAHAN, AND DANIEL SCHWARCZ. Full text. We conducted the first randomized controlled trial to study the effect of AI assistance on human legal analysis. We randomly assigned law school students to complete realistic legal tasks either with or without the assistance of GPT-4, tracking how long the students took lawreview - Minnesota Law Review - [Informed Bystanders’ Duty to Warn](https://minnesotalawreview.org/article/informed-bystanders-duty-to-warn/) - By GILAT J. BACHAR. Full text. Should bystanders with credible knowledge about prospective harm owe a duty of care to future victims? This urgent question comes up in various contexts, from former employers who withhold information about a serial harasser to data brokers who are silent about stalkers that track personal information. Under established common lawreview - Minnesota Law Review - [If Lived Experience Could Speak: A Method for Repairing Epistemic Violence in Law and the Legal Academy](https://minnesotalawreview.org/article/if-lived-experience-could-speak-a-method-for-repairing-epistemic-violence-in-law-and-the-legal-academy/) - BY TERRELL CARTER and RACHEL LÓPEZ. Full text. Terrell Carter grew up only a stone’s throw from Drexel University, the institution of higher learning where the other coauthor of this Article, Rachel López, would find her academic home years later. Even as a child, Terrell remembers feeling like other institutions that were miles away, like lawreview - Minnesota Law Review - [Defining Common and Individual Issues in Class Actions: What a Reasonable Jury Could Do](https://minnesotalawreview.org/article/11161/) - Defining Common and Individual Issues in Class Actions: What a Reasonable Jury Could Do By Aaron D. Van Oort and John L. Rockenbach Full essay here. The distinction between common and individual issues is the single most important concept in the modern class action, and it is the one that most bedevils courts in practice. lawreview - Minnesota Law Review - [The Supreme Court’s Opinion in <em>SEC v. Jarkesy</em> Has the Potential To Be Extremely Destructive](https://minnesotalawreview.org/article/the-supreme-courts-opinion-in-sec-v-jarkesy-has-the-potential-to-be-extremely-destructive/) - The Supreme Court’s Opinion in SEC v. Jarkesy Has the Potential To Be Extremely Destructive By Richard J. Pierce, Jr. Full essay here. In this essay, Professor Pierce describes the legal framework within which the Supreme Court decided whether an agency could adjudicate a class of disputes prior to its 2024 opinion in SEC. v lawreview - Minnesota Law Review - [Substance over Symbolism: Do We Need Benefit Corporation Laws?](https://minnesotalawreview.org/article/substance-over-symbolism-do-we-need-benefit-corporation-laws/) - BY CHENG-CHI (KIRIN) CHANG. Full essay here. Benefit corporation laws have gained traction as mechanisms to integrate societal and environmental objectives into business operations, yet they are arguably superfluous within the existing legal framework. The prevailing belief that corporations must prioritize shareholder wealth above all is not a legal imperative, as evidenced by the flexibility lawreview - Minnesota Law Review - [Curbing Gun Violence Under PLCAA and <em>Bruen</em>: State Attorney General–Driven Solutions to the Surging Epidemic](https://minnesotalawreview.org/article/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 a federal statute that the U.S. Congress enacted in 2005, lawreview - Minnesota Law Review - [“Proven” Safety Regulations: Massachusetts 1805 Proving Law As Historical Analogue for Modern Gun Safety Laws](https://minnesotalawreview.org/article/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 only follow the law’s safety standards, but they themselves also lawreview - Minnesota Law Review - [Refining the Dangerousness Standard in Felon Disarmament](https://minnesotalawreview.org/article/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 for certain classes of individuals to transport, receive, or possess lawreview - Minnesota Law Review - [The Second Amendment’s Racial Justice Complexities](https://minnesotalawreview.org/article/the-second-amendments-racial-justice-complexities/) - By DANIEL S. HARAWA. Full Text. The relationship between the Second Amendment and racial justice is complicated. That’s because the relationship between pe- nal administration and racial justice is complicated. The briefing in New York State Rifle & Pistol Association v. Bruen perfectly proves this point. A group of public defenders favored striking down New lawreview - Minnesota Law Review - [Trouble’s <em>Bruen</em>: The Lower Courts Respond](https://minnesotalawreview.org/article/troubles-bruen-the-lower-courts-respond/) - By BRANNON P. DENNING AND GLENN H. REYNOLDS. Full Text. New York State Rifle & Pistol Ass’n v. Bruen revolutionized the understanding of how Second Amendment cases are to be adjudicated. Rejecting the tiered-scrutiny analysis around which the lower courts had coalesced since the 2008 Heller decision, the Court instructed courts to look to history lawreview - Minnesota Law Review - [Scientific Context, Suicide Prevention, and the Second Amendment After <em>Bruen</em>](https://minnesotalawreview.org/article/scientific-context-suicide-prevention-and-the-second-amendment-after-bruen/) - By ERIC RUBEN. Full Text. The Supreme Court declared in New York State Rifle & Pistol Ass’n v. Bruen that modern gun laws must be “consistent with this Nation’s historical tradition of firearm regulation” to survive Second Amendment challenges. Scholarship has shown how this test of historical analogy presents difficulties because of how technological, legal, lawreview - Minnesota Law Review - [Age Restrictions and the Right to Keep and Bear Arms, 1791–1868](https://minnesotalawreview.org/article/age-restrictions-and-the-right-to-keep-and-bear-arms-1791-1868/) - By MEGAN WALSH AND SAUL CORNELL. Full Text. The disproportional misuse of firearms by eighteen-to-twenty-year-olds has long been a problem in America. The concerns are not novel. Nor are legislative responses to this problem a recent development in American law. These limitations are deeply rooted in American legal history. While minimum age gun laws routinely lawreview - Minnesota Law Review - [Firearms and the Homeowner: Defending the Castle, the Curtilage, and Beyond](https://minnesotalawreview.org/article/firearms-and-the-homeowner-defending-the-castle-the-curtilage-and-beyond/) - By CYNTHIA LEE. Full Text. In the spring of 2023, a series of back-to-back shootings shook the nation. A Black teenager in Missouri trying to pick up his two younger siblings went to the wrong door and rang the doorbell. The homeowner came to the door with a gun and, without saying a word, fired lawreview - Minnesota Law Review - [Firearms Carceralism](https://minnesotalawreview.org/article/firearms-carceralism/) - By JACOB D. CHARLES. Full Text. Gun violence is a pressing national concern. And it has been for decades. Throughout nearly all that time, the primary tool lawmakers have deployed to stanch the violence has been the machinery of the criminal law. Increased policing, intrusive surveillance, vigorous prosecution, and punitive penalties are showered on gun lawreview - Minnesota Law Review - [Aiming for Answers: Balancing Rights, Safety, and Justice in a Post-<em>Bruen</em> America](https://minnesotalawreview.org/article/aiming-for-answers-balancing-rights-safety-and-justice-in-a-post-bruen-america/) - By CHAD NOWLAN. Full Text. A foreword to the symposium issue of Minnesota Law Review volume 108. lawreview - Minnesota Law Review - [Private-Law Attorneys General](https://minnesotalawreview.org/article/private-law-attorneys-general/) - By Molly Shaffer Van Houweling. Full Text. The Constitution empowers Congress to “promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The founding-era Congress quickly exercised this power by enacting copyright and patent laws that track the constitutional lawreview - Minnesota Law Review - [Should Courts Make It Personal? Virtue-Dependent Doctrine and the Law of Executive Power](https://minnesotalawreview.org/article/should-courts-make-it-personal-virtue-dependent-doctrine-and-the-law-of-executive-power/) - By Michael Coenen. Full Text. With The Virtuous Executive, Professor Alan Rozenshtein has given us an impressive and wide-ranging analysis of the relevance of Presidential character to the law of executive power. The article’s central claim is straightforward: The Constitution reflects a “commitment to proper presidential character,” and scholars of and participants within the U.S. lawreview - Minnesota Law Review - [Erasing Racial Harms in <em>CFPB v. Community Financial Services Association</em>](https://minnesotalawreview.org/article/erasing-racial-harms-in-cfpb-v-community-financial-services-association/) - By Callan Showers. Full Text. Professor Allan Freeman’s “perpetrator perspective” explains the normative American legal framework that casts racism as an intentional deviation from an otherwise neutral system. Freeman describes the perpetrator perspective as a negative, remedial dimension casting discrimination as an isolated action by a perpetrator onto a victim. By conflating the concept of lawreview - Minnesota Law Review - [A Great American Gun Myth: Race and the Naming of the “Saturday Night Special”](https://minnesotalawreview.org/article/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 and guns be taken seriously and vetted appropriately. In this lawreview - Minnesota Law Review - [Bounded Entities and (Some of) Their Discontents](https://minnesotalawreview.org/article/bounded-entities-and-some-of-their-discontents/) - By Saurabh Vishnubhakat. Full Text. In his new article An Organizational Theory of International Technology Transfer, Professor Peter Lee offers two richly detailed accounts at once. One is a novel theoretical framework of “bounded entities” that generalizes both from the classic theory of the firm and, of more recent vintage, from the knowledge-based theory of lawreview - Minnesota Law Review - [American Fiction: Overturning the Doctrine of Immigration Entry Fiction as Established in <em>Shaughnessy v. Mezei</em>](https://minnesotalawreview.org/article/american-fiction-overturning-the-doctrine-of-immigration-entry-fiction-as-established-in-shaughnessy-v-mezei/) - By Dahlia Wilson. Full Text. In 1886, the Supreme Court decided a case called Yick Wo v. Hopkins, which held that any person physically within the United States’ territory would enjoy the protections of the Fourteenth Amendment, regardless of their immigration or citizenship status. In a racist and nationalistic reaction, this decision gave rise to lawreview - Minnesota Law Review - [Twins at <em>Bat</em>(<em>son</em>), Strikes Are Out: Minnesota’s Opportunity to Restore <em>Batson v. Kentucky</em> by Eliminating Peremptory Strikes](https://minnesotalawreview.org/article/twins-at-batson-strikes-are-out-minnesotas-opportunity-to-restore-batson-v-kentucky-by-eliminating-peremptory-strikes/) - By Samuel Buisman. Full Text. While the Supreme Court’s decision in Batson v. Kentucky is widely hailed by scholars and jurists alike as a triumph of American egalitarianism, time and trial have unmasked its protections as a paper tiger. Despite its purported protections against racially and sexually discriminatory peremptory juror strikes, the Court’s abysmal standard lawreview - Minnesota Law Review - [States’ Obligation to Provide for Trans Youth: How Medicaid Requires (Most) States to Provide Access to Puberty Blockers](https://minnesotalawreview.org/article/states-obligation-to-provide-for-trans-youth-how-medicaid-requires-most-states-to-provide-access-to-puberty-blockers/) - By GRACE WORCESTER. Full Text. Over the last few years, many states have endeavored to strip minor access to gender-affirming healthcare, and these efforts have seen considerable success. By the end of 2023, twenty-two states had enacted legislation that limits youth access to gender- affirming healthcare. In line with these efforts, many states have created lawreview - Minnesota Law Review - [The Mississippi River Basin Compact: A New Governance Structure to Save the Mississippi River](https://minnesotalawreview.org/article/the-mississippi-river-basin-compact-a-new-governance-structure-to-save-the-mississippi-river/) - By JOHN STACK. Full Text. The Mississippi River is one of the most significant and yet one of the most imperiled water bodies in the United States. It faces a myriad of problems, from rampant pollution, widespread flooding, wildlife habitat loss, and considerable droughts. Indeed, this is a critical time for the Mississippi River. Fall lawreview - Minnesota Law Review - [Answering the Call: How Reconfiguration of the Nation’s Mental Health Crisis Call Line Can Facilitate Reimagination of Community Well-Being and Public Safety](https://minnesotalawreview.org/article/answering-the-call-how-reconfiguration-of-the-nations-mental-health-crisis-call-line-can-facilitate-reimagination-of-community-well-being-and-public-safety/) - By LUCY CHIN. Full Text. When the 988 Suicide and Crisis Lifeline went live in Summer 2022, communities across the country began to confront the question of how this new, expanded behavioral health resource would integrate into the country’s preexisting, emergency response systems. The program seemed to promise the solution to an increasingly visible problem—as lawreview - Minnesota Law Review - [Police-Made Law](https://minnesotalawreview.org/article/police-made-law/) - By BRENNER M. FISSELL. Full Text. This Article presents evidence that police are writing laws that they enforce. This newly discovered phenomenon compounds the existing understanding of police “making” law through the exercise of discretion. They make law in a far more direct way, functioning as quasi-legislators at the local level—identifying a social problem, drafting lawreview - Minnesota Law Review - [Reproductive Objectification](https://minnesotalawreview.org/article/reproductive-objectification/) - By MEGHAN M. BOONE and BENJAMIN J. MCMICHAEL. Full Text. The American system of rights is individualized—premised on the concept of singular, physically separate, and autonomous people. The rise of the fetal personhood movement complicates this basic understanding. If rights attach to singular, autonomous people, and fetuses are legally people, then the body of a lawreview - Minnesota Law Review - [“Criminalizing” Depositions in Arbitration](https://minnesotalawreview.org/article/criminalizing-depositions-in-arbitration/) - By MITCH ZAMOFF. Full Text. Civil litigation–style deposition practice is preventing commercial arbitration from reaching its full potential as an economical, efficient alternative to a civil lawsuit. Although there is consensus among alternative dispute resolution experts that meaningful limits must be imposed on arbitration discovery to unlock the efficiency benefits of arbitration, depositions continue to lawreview - Minnesota Law Review - [Sound Marks](https://minnesotalawreview.org/article/sound-marks/) - By DEBORAH R. GERHARDT and JON J. LEE. Full Text. A lion roars just before a film rolls. A doughboy giggles. A giant green man laughs a hearty, “Ho, Ho, Ho.” These iconic sounds are all federally registered as trademarks. They identify specific brands and distinguish their products and services from the competition. Human brains lawreview - Minnesota Law Review - [Profit, Mission, and Protest at Work](https://minnesotalawreview.org/article/profit-mission-and-protest-at-work/) - By MARION CRAIN. Full Text. The classic understanding of capitalism maintains that the social responsibility of business is to increase its profits. But in the last decade, many firms have announced commitments to various social justice issues, folding them into corporate mission statements, codes of corporate social responsibility, and branding. Firms engaging in so-called “woke lawreview - Minnesota Law Review - [Modern Statutory Interpolation: Correcting Court-Made Deficiencies in Title VII Law](https://minnesotalawreview.org/article/modern-statutory-interpolation-correcting-court-made-deficiencies-in-title-vii-law/) - By Jordan Boudreaux. Full Text. Title VII of the Civil Rights Act of 1964 is a monumentally important piece of legislation that ensures all Americans can enjoy a fair workplace, free of discrimination. Even so, the federal circuits remain split on a significant aspect of Title VII’s interpretation. Notably, in some circuits, employees can still lawreview - Minnesota Law Review - [The Good, the Bad, and the Unconstitutional: State Attempts to Solve the Defendant Class Action Problem](https://minnesotalawreview.org/article/the-good-the-bad-and-the-unconstitutional-state-attempts-to-solve-the-defendant-class-action-problem/) - By Tyler Blackmon. Full Text. While the overwhelming majority of class action lawsuits filed in this country are plaintiff class actions—with named plaintiffs representing larger classes of plaintiffs—Rule 23 of the Federal Rules of Civil Procedure technically permits plaintiffs to sue a named defendant representing a class of defendants as well. However, such suits are lawreview - Minnesota Law Review - [Two Is Not Always Better than One: Concurrent Criminal Jurisdiction in Indian Country and the Withering of Tribal Sovereignty Following <em>McGirt</em> and <em>Castro-Huerta</em>](https://minnesotalawreview.org/article/two-is-not-always-better-than-one-concurrent-criminal-jurisdiction-in-indian-country-and-the-withering-of-tribal-sovereignty-following-mcgirt-and-castro-huerta/) - By Marina Berardino. Full Text. There is a violence epidemic plaguing the Native American population across the country. Native women are disproportionality victimized by both sexual and non-sexual violence—over eighty-five percent of Native women are expected to be victims of intimate partner violence, stalking, or sexual violence at some point in their life. Most often, lawreview - Minnesota Law Review - [Platform Unions](https://minnesotalawreview.org/article/platform-unions/) - By Charlotte Garden. Full Text. How should we regulate social media platforms to prevent harmful treatment of users? Regulators, advocates, and scholars have grappled with this problem for years. Many proposed solutions, ranging from improving privacy disclosures, to promoting competition between platforms, to requiring platforms to pay users for their data, are at best incomplete. lawreview - Minnesota Law Review - [Fixing Disparate Prosecution](https://minnesotalawreview.org/article/fixing-disparate-prosecution/) - Shima Baradaran Baughman and Jensen Lillquist. Full Text. America’s system of public prosecution is broken. Prosecutors who charge harshly or disparately are shielded from any consequences or recourse, and defendants are left with few options. This asymmetry in power results in prosecutors singlehandedly maintaining mass incarceration in the United States and leads to some states lawreview - Minnesota Law Review - [Contract Customization, Sex, and Islamic Law](https://minnesotalawreview.org/article/contract-customization-sex-and-islamic-law/) - By Rabea Benhalim. Full Text. Common law has historically deemed marriage and sex outside the right to contract. Yet, couples increasingly use contracts to provide legal rights to the unmarried in a variety of contexts ranging from same-sex relationships to surrogacy. Islamic law, on the other hand, has always conceived of marriage and sexual relationships lawreview - Minnesota Law Review - [Article III and Indian Tribes](https://minnesotalawreview.org/article/article-iii-and-indian-tribes/) - By Grant Christensen. Full Text. Among the most basic principles of our federal courts is that they are courts of limited jurisdiction, exercising only those powers delegated to them in Article III. In 1985 the Supreme Court inexplicably created an exception to this constitutional tenet and unilaterally declared a plenary judicial power to review the lawreview - Minnesota Law Review - [Animal Plaintiffs](https://minnesotalawreview.org/article/animal-plaintiffs/) - By Matthew Liebman. Full Text. From endangered Hawaiian songbirds to dolphins deafened by Navy sonar to a neglected horse named Justice, nonhuman animals increasingly appear as plaintiffs in lawsuits alleging their subjection to extinction, abuse, and other injustices. These cases are far more than mere novelties or publicity stunts; they raise important jurisprudential questions about lawreview - Minnesota Law Review - [Teaching “Is This Case Rightly Decided?”](https://minnesotalawreview.org/article/teaching-is-this-case-rightly-decided/) - By Steven Arrigg Koh. Full Text. “Is this case rightly decided?” From the first week of law school, every law student must grapple with this classroom question. This Essay argues that this vital question is problematically under-specified, creating imprecision in thinking about law. This Essay thus advocates that law professors should present students with a lawreview - Minnesota Law Review - [Thirty-Five Years of Inaction: The Unfulfilled Promise of the Medicaid Equal Access Provision](https://minnesotalawreview.org/article/thirty-five-years-of-inaction-the-unfulfilled-promise-of-the-medicaid-equal-access-provision/) - By Delaram Takyar. Full Text. In 1989, Congress amended the Social Security Act to ensure that Medicaid recipients would have the same access to medical providers as people covered by private insurance and Medicare. This was meant to remedy the wide disparities in access to care faced by Medicaid beneficiaries. Congress placed the responsibility for lawreview - Minnesota Law Review - [In Defense of <em>Pickering</em>: When a Public Employee’s Social Media Speech, Particularly Political Speech, Conflicts with Their Employer’s Public Service](https://minnesotalawreview.org/article/in-defense-of-pickering-when-a-public-employees-social-media-speech-particularly-political-speech-conflicts-with-their-employers-public-service/) - By Abby Ward. Full Text. With the rise of social media and the United States’ increasing political polarization, public employees take to social media to post about political issues such as race and policing. But when public employees make posts on political issues in an inflammatory or controversial way, public employers often discipline or fire lawreview - Minnesota Law Review - [Americon Dream: Social Pressures and Lackluster Regulation Allow Multi-Level Marketing Companies to Function as De Facto Pyramid Schemes](https://minnesotalawreview.org/article/americon-dream-social-pressures-and-lackluster-regulation-allow-multi-level-marketing-companies-to-function-as-de-facto-pyramid-schemes/) - By Lindsay R. Maher. Full Text. The entrepreneurial spirit goes to the heart of the American Dream. Pull yourself up by the bootstraps. Put your nose to the grindstone. If you could just be given the tools to get started, you, too, can make something of yourself with hard work and perseverance. This mindset drives lawreview - Minnesota Law Review - [Throuples and Family Law](https://minnesotalawreview.org/article/throuples-and-family-law/) - By Philip de Sa e Silva. Full Text. As throuples and other forms of polyamorous relationships gain visibility and acceptance, courts will have to confront the legal issues that will likely arise when a throuple forms and when it dissolves. How should courts determine child custody for three equally situated parents? How should courts divide lawreview - Minnesota Law Review - [Multi-Parent Custody](https://minnesotalawreview.org/article/multi-parent-custody/) - By Jessica Feinberg. Full Text. In recent years, a number of jurisdictions have enacted laws recognizing that a child may have more than two legal parents (multi-parentage). Recognition of multi-parentage represents a significant change to the legal framework governing parentage— for most of U.S. history, it was well established that a child could have a lawreview - Minnesota Law Review - [The Roberts Court and the Unraveling of Labor Law](https://minnesotalawreview.org/article/the-roberts-court-and-the-unraveling-of-labor-law/) - By Courtlyn G. Roser-Jones. Full Text. Labor law comprises several doctrines and procedures that oversee the relationships between employers, unions, and the workers they represent. These doctrines—the duty of fair representation, exclusivity, good-faith bargaining, captive-audience speech, and rights of equal access—are all component threads to a tapestry designed to facilitate widespread organizing and collective bargaining. lawreview - Minnesota Law Review - [Making Whole, Making Better, and Accommodating Resilience](https://minnesotalawreview.org/article/making-whole-making-better-and-accommodating-resilience/) - By Erik Encarnacion. Full Text. The conventional story about compensatory damages is that they aim to make plaintiffs whole, but not better off. This make-whole ideal implies that courts should subtract material gains from compensatory awards because otherwise plaintiffs would be unjustly enriched. This Article undermines this conventional wisdom in three ways. First, it highlights lawreview - Minnesota Law Review - [Subjective Costs of Tax Compliance](https://minnesotalawreview.org/article/subjective-costs-of-tax-compliance/) - By Jonathan H. Choi and Ariel Jurow Kleiman. Full Text. This Article introduces and estimates the “subjective costs” of tax compliance, which are costs of tax compliance that people experience directly and individually. To measure these costs, we conducted a survey experiment assessing how much taxpayers would pay to reduce the unpleasantness associated with filing lawreview - Minnesota Law Review - [Can the Excessive Fines Clause Mitigate the LFO Crisis? An Assessment of the Caselaw](https://minnesotalawreview.org/article/can-the-excessive-fines-clause-mitigate-the-lfo-crisis-an-assessment-of-the-caselaw/) - By Michael O'Hear. Full Text. The nation’s increasing use of fees, fines, forfeiture, and restitution has resulted in chronic debt burdens for millions of poor and working-class Americans. These legal financial obligations (LFOs) likely entrench racial and socioeconomic divides and contribute to the breakdown of trust in the police and courts in disadvantaged communities. One lawreview - Minnesota Law Review - [The Press Clause Needs Teeth: The Case for Strengthening Constitutional Press Protections at Protests](https://minnesotalawreview.org/article/the-press-clause-needs-teeth-the-case-for-strengthening-constitutional-press-protections-at-protests/) - By Ryan Liston. Full Text. Journalists and the government have often had a tense relationship because of journalism’s watchdog role. In recent years, that tension has reached a boiling point. Law enforcement arrested journalists at an unprecedented rate in 2020, primarily while they were covering racial justice protests after Minneapolis police officer Derek Chauvin murdered lawreview - Minnesota Law Review - [An Organizational Theory of International Technology Transfer](https://minnesotalawreview.org/article/an-organizational-theory-of-international-technology-transfer/) - By Peter Lee. Full Text. International technology transfer plays a critical role in advancing economic and social welfare around the world. Conventional wisdom holds that strong intellectual property rights—primarily patents—promote the transfer of technologies between countries. An important counternarrative, however, contends that weakening patents promotes important forms of technology transfer. This Article challenges the centrality lawreview - Minnesota Law Review - [Sidestepping the Escherian Stairwell: Explicit Establishment as a Method for Circumventing Qualified Immunity's Constitutional Stagnation](https://minnesotalawreview.org/article/sidestepping-the-escherian-stairwell-explicit-establishment-as-a-method-for-circumventing-qualified-immunitys-constitutional-stagnation/) - By Earl Y. Lin. Full Text. In recent years, the doctrine of qualified immunity (QI) has gained increased prominence in the public consciousness. Prior to the murder of George Floyd and the resulting nationwide racial justice protests and uprisings, this Supreme Court–made doctrine—and the ways it shields law enforcement officers from legal accountability—was a relatively lawreview - Minnesota Law Review - [Banishing Federal Overstep: Why Protecting Tribal Sovereignty Justifies a Narrow Reading of the Indian Civil Rights Act](https://minnesotalawreview.org/article/banishing-federal-overstep-why-protecting-tribal-sovereignty-justifies-a-narrow-reading-of-the-indian-civil-rights-act/) - By Randa Larsen. Full Text. At the heart of this Note is the need to preserve Tribal sovereignty. This Note focuses on a lesser-known issue currently being debated in circuit courts: whether Tribes should be permitted to banish Tribal members from their ranks without submitting to the scrutiny of federal courts. Recently, there has been lawreview - Minnesota Law Review - [Physicians Spreading Medical Misinformation: The Uneasy Case for Regulation](https://minnesotalawreview.org/article/physicians-spreading-medical-misinformation-the-uneasy-case-for-regulation/) - By Richard S. Saver. Full Text. Physicians have played a surprisingly prominent role in the current “infodemic” of false and misleading medical claims. Yet, state medical boards, the governmental agencies responsible for professional licensure and oversight, have sanctioned remarkably few physicians. Pushing back against the widespread criticism of medical boards for insufficient action, this Article lawreview - Minnesota Law Review - [The Algorithmic Explainability "Bait and Switch"](https://minnesotalawreview.org/article/the-algorithmic-explainability-bait-and-switch/) - By Boris Babic and I. Glenn Cohen. Full Text. Explainability in artificial intelligence and machine learning (AI/ML) is emerging as a leading area of academic research and a topic of significant regulatory concern. Increasingly, academics, governments, and civil society groups are moving toward a consensus that AI/ML must be explainable. In this Article, we challenge lawreview - Minnesota Law Review - [Just Extracurriculars?](https://minnesotalawreview.org/article/just-extracurriculars/) - By Emily Gold Waldman. Full Text. Extracurricular activities have been the battleground for a striking number of Supreme Court cases set at public schools, from cases involving speech to religion to drug testing. Indeed, the two most recent Supreme Court cases involving constitutional rights at public schools—Kennedy v. Bremerton School District (2022) and Mahanoy Area lawreview - Minnesota Law Review - [Banking Deserts, Structural Racism, and Merger Law](https://minnesotalawreview.org/article/banking-deserts-structural-racism-and-merger-law/) - By Christopher R. Leslie. Full Text. Roughly seventy million Americans cannot access a bank account or traditional financial services. Many of these individuals live in a “banking desert”—a town or community that has neither an independent bank nor a branch office of a larger bank. The United States has over 1,100 banking deserts, with another lawreview - Minnesota Law Review - [The Virtuous Executive](https://minnesotalawreview.org/article/the-virtuous-executive/) - By Alan Z. Rozenshtein. Full Text. As currently conceived, executive power law and scholarship detach the identity of the President from the powers and duties of the presidency. Whether an official was properly dismissed without cause, whether a pardon was validly issued, whether a foreign policy debacle rose to the level of an impeachable offense—the lawreview - Minnesota Law Review - [issue 2, article 10](https://minnesotalawreview.org/article/issue-2-article-10/) - lawreview - Minnesota Law Review - [issue 2, article 9](https://minnesotalawreview.org/article/issue-2-article-9/) - lawreview - Minnesota Law Review - [From <em>Powell</em> to Present: Defining the Right to Counsel Beyond <em>Rothgery</em>](https://minnesotalawreview.org/article/from-powell-to-present-defining-the-right-to-counsel-beyond-rothgery/) - By Amy M. Cohen. Full Text. Every morning in jails across America, new arrestees are woken up and ushered into a courtroom to be heard on their re- lease. Some might be coming down from a high, dealing with the consequences of binge drinking, or distressed about what this arrest might mean for their future. lawreview - Minnesota Law Review - [Help Me Sue a Gun Manufacturer: A State Legislator’s Guide to the Protection of Lawful Commerce in Arms Act and the Predicate Exception](https://minnesotalawreview.org/article/help-me-sue-a-gun-manufacturer-a-state-legislators-guide-to-the-protection-of-lawful-commerce-in-arms-act-and-the-predicate-exception/) - By Evan Dale. Full Text. Gun violence has become one of the central issues of our time. The number of gun violence victims, gun homicides, and mass shootings break all-time American records nearly every year. As the number of victims of gun violence rises, victims have tried—and largely failed—to hold gun manufacturers civilly liable for lawreview - Minnesota Law Review - [Hello, World? Domestic Software Patent Protection Stands Alone Due to Uncertain Subject Matter Eligibility Jurisprudence](https://minnesotalawreview.org/article/hello-world-domestic-software-patent-protection-stands-alone-due-to-uncertain-subject-matter-eligibility-jurisprudence/) - By Maxwell H. Terry. Full Text. In the last sixteen years, software-related inventions have en- compassed the majority of all utility patents issued in the United States. Further, studies estimate that spending within the global information technology market will grow to $4.6 trillion in 2023, as industries such as data security, cloud computing, and artificial lawreview - Minnesota Law Review - [The Federal Reserve’s Mandates](https://minnesotalawreview.org/article/the-federal-reserves-mandates/) - By David T. Zaring and Jeffery Y. Zhang. Full Text. Solutions to systemic problems such as climate change and racial inequities have eluded policymakers for decades. In searching for creative solutions, some policymakers have recently thought about expanding the Federal Reserve’s core set of macro-economic mandates to tackle these issues. But there are real questions lawreview - Minnesota Law Review - [Regulating History](https://minnesotalawreview.org/article/regulating-history/) - Sara C. Bronin and Leslie R. Irwin. Full Text. America’s local historic commissions collectively wield tremendous influence over millions of privately-owned parcels of land. By reviewing rehab proposals, blocking demolitions, and mandating property maintenance, these commissions have helped to protect many of America’s most beloved neighborhoods. They fill a vacuum left by federal and state lawreview - Minnesota Law Review - [Bringing Courts into Global Governance in a Climate-Disrupted World Order](https://minnesotalawreview.org/article/bringing-courts-into-global-governance-in-a-climate-disrupted-world-order/) - By Karen C. Sokol. Full Text. Climate-driven geophysical and geopolitical shifts are putting increasing pressure on international law and global governance. One window into the challenges and opportunities presented by these ongoing disruptions is provided by a surge of “climate-accountability” cases, which argue that governments and corporations are responsible for addressing climate risks or repairing lawreview - Minnesota Law Review - [Civil Rights Liability for Bad Hiring](https://minnesotalawreview.org/article/civil-rights-liability-for-bad-hiring-2/) - By Nancy Leong. Full Text. Appendix. Suppose that a municipality hires a police officer, teacher, corrections officer, or other official with an extensive record of past misconduct—someone the municipality should have known better than to hire. When such an employee causes a violation of constitutional rights, the injured party often brings a civil rights suit lawreview - Minnesota Law Review - [The Right to Counsel for Habeas Proceedings](https://minnesotalawreview.org/article/the-right-to-counsel-for-habeas-proceedings/) - By Amy Cohen. Full Text. Federal habeas is often the last avenue of relief for both federal and state prisoners. The Framers thought the right to the writ of habeas corpus was so established in law that its only reference in the Constitution is under what conditions the right may be suspended. Yet, most habeas lawreview - Minnesota Law Review - [Still on the Hook: Forward-Looking Releases Reel-in Potential Risks in Mergers and Acquisitions](https://minnesotalawreview.org/article/still-on-the-hook-forward-looking-releases-reel-in-potential-risks-in-mergers-and-acquisitions/) - By Mark T. Wilhelm & Madison Fitzgerald. Full Text. A recent study that analyzed more than 2,100 private-target acquisitions found that 65% of those transactions were structured with a separate signing and closing. While the number of days between signing and closing inevitably varies on a deal-by-deal basis, a prolonged executory period only intensifies concerns lawreview - Minnesota Law Review - [Property as a Legitimating Right](https://minnesotalawreview.org/article/property-as-a-legitimating-right/) - By Duncan Hosie. Full Text. Recent decisions from the Roberts Court have strengthened property rights, and progressive commentators and jurists have reacted with alarm. In light of these constitutional developments, this Essay revisits the landmark 2003 case of Goodridge v. Department of Public Health, which made Massachusetts the first state to recognize a right to lawreview - Minnesota Law Review - [AI Tools for Lawyers: A Practical Guide](https://minnesotalawreview.org/article/ai-tools-for-lawyers-a-practical-guide/) - By Daniel Schwarcz & Jonathan H. Choi. Full Text. This Article provides practical and specific guidance on how to effectively use AI large language models (LLMs), like GPT-4, Bing Chat, and Bard, in legal research and writing. Focusing on GPT-4—the most advanced LLM that is widely available at the time of this writing—it emphasizes that lawreview - Minnesota Law Review - [Civil Rights Liability for Bad Hiring](https://minnesotalawreview.org/article/civil-rights-liability-for-bad-hiring/) - By Nancy Leong. Full Text. Appendix. Suppose that a municipality hires a police officer, teacher, jail guard, or other official with an extensive record of past misconduct—someone the municipality should have known better than to hire. When such an employee causes a violation of constitutional rights, the injured party often brings a civil rights suit lawreview - Minnesota Law Review - [Minnesota Law Review, Volume 107 Symposium Foreword](https://minnesotalawreview.org/article/minnesota-law-review-volume-107-symposium-foreword/) - By Joshua Gutzmann. Full Text. For most of us (the Editors of Volume 107 of the Minnesota Law Review), the summer before starting law school was characterized by a global pandemic and a racial reckoning. Like many Americans, we experienced a toxic mix of feelings of isolation, hopelessness, and even anger; and we yearned for lawreview - Minnesota Law Review - [Modern Diploma Privilege: A Path Rather Than a Gate](https://minnesotalawreview.org/article/modern-diploma-privilege-a-path-rather-than-a-gate/) - By Catherine Martin Christopher. Full Text. This Article proposes a modern diploma privilege—a licensure framework that allows state licensure authorities to identify what competencies are expected of first-year attorneys, then partner with law schools to assess those competencies. Freed from the format and timing of a bar exam, schools can assess a broader range of lawreview - Minnesota Law Review - [Client-Centered Legal Education and Licensing](https://minnesotalawreview.org/article/client-centered-legal-education-and-licensing/) - By Deborah Jones Merritt. Full Text. Clients are central to law practice, yet they play a limited role in both legal education and licensing. This article challenges legal educators and bar examiners to become more client-centered. The article draws upon empirical data demonstrating the importance of client-related, hands-on skills in law practice, and then outlines lawreview - Minnesota Law Review - [Dethroning Langdell](https://minnesotalawreview.org/article/dethroning-langdell/) - By Beth Hirschfelder Wilensky. Full Text. What if we are teaching law entirely wrong? We fill our syllabi with appellate court opinions—even though very little of what most attorneys do involves reading these opinions to learn foundational legal doctrine. We cold call on students—even though most circumstances in which attorneys talk about the law bear lawreview - Minnesota Law Review - [Secondary Courses Taught by Secondary Faculty: A (Personal) Call to Fully Integrate Skills Faculty and Skills Courses into the Law School Curriculum Ahead of the NextGen Bar Exam](https://minnesotalawreview.org/article/secondary-courses-taught-by-secondary-faculty-a-personal-call-to-fully-integrate-skills-faculty-and-skills-courses-into-the-law-school-curriculum-ahead-of-the-nextgen-bar-exam/) - By O.J. Salinas. Full Text. This Essay focuses on the disconnect between what law schools say they value and who they value. The Essay highlights how law faculty and administrators often carry a survivorship bias that may prevent them from fully acknowledging or accepting that the law school experience may be challenging and unwelcoming for lawreview - Minnesota Law Review - [Teaching Dissents](https://minnesotalawreview.org/article/teaching-dissents/) - By Sherri Lee Keene. Full Text. Judges’ perspectives and attitudes—and even their biases and assumptions—naturally find their way into legal analysis and decision-making. Yet this reality is something that the language of opinions tends to deny. Court opinions are often written to sound authoritative and sure, making legal decisions seem purely logical and channeling a lawreview - Minnesota Law Review - [Law Students Left Behind: Law Schools’ Role in Remedying the Devastating Effects of Federal Education Policy](https://minnesotalawreview.org/article/law-students-left-behind-law-schools-role-in-remedying-the-devastating-effects-of-federal-education-policy/) - By Sandra L. Simpson. Full Text. Due to the unintended consequences of misdirected federal education policy, students come to law school with underdeveloped critical thinking and cognitive adaptability skills. As the products of the No Child Left Behind Act (NCLB) and its progeny, students educated in the United States after 2002 excel at memorization and lawreview - Minnesota Law Review - [What We Teach When We Teach Legal Analysis](https://minnesotalawreview.org/article/what-we-teach-when-we-teach-legal-analysis/) - By Susan A. McMahon. Full Text. Traditional legal education, especially in the first year, leaves students with the impression that law is neutral and objective, and their job, as lawyers, is to read cases, pull out rules, and sift facts into legal categories. This training contributes to a student’s sense that law is natural and lawreview - Minnesota Law Review - [“More than the Numbers”: Empirical Evidence of an Innovative Approach to Admissions](https://minnesotalawreview.org/article/more-than-the-numbers-empirical-evidence-of-an-innovative-approach-to-admissions/) - By Anahid Gharakhanian, Natalie Rodriguez, and Elizabeth A. Anderson. Full Text. “I am proof that your LSAT score does not define you; law schools need to understand that every student’s lived experience is unique. Thanks to Southwestern’s admissions process I was able to show that I’m more than the numbers on my application.” This third-year lawreview - Minnesota Law Review - [Leaving Langdell Behind: Reimagining Legal Education for a New Era](https://minnesotalawreview.org/article/leaving-langdell-behind-reimagining-legal-education-for-a-new-era-2/) - Symposium Keynote by Judith A. Gundersen. Full Text. "[T]he time seems right to ask ourselves, legal educators and bar examiners, who have different but related roles in the law student to lawyer continuum: how can we best work both independently and in collaboration to ensure that tomorrow’s law- yers are ready to take on the lawreview - Minnesota Law Review - [In Defense of (Mental) Hearth and Home: Challenges to § 922(g)(4) in the Wake of <em>New York State Rifle & Pistol Ass’n v. Bruen</em>](https://minnesotalawreview.org/article/in-defense-of-mental-hearth-and-home-challenges-to-§-922g4-in-the-wake-of-new-york-state-rifle-pistol-assn-v-bruen/) - By Zachary M. Robole. Full Text. Individually, discussions about mental illness and firearm possession are at the forefront of American discourse. Intriguingly, the intersection of the two issues produces provocative social and legal questions. 18 U.S.C. § 922(g)(4) bans those who have been involuntarily committed to a mental institution from owning a firearm. This ban is lawreview - Minnesota Law Review - [Freedom to Pray, Not to Protest](https://minnesotalawreview.org/article/freedom-to-pray-not-to-protest/) - By Leah Reiss. Full Text. The Supreme Court has never definitively ruled on the constitutionality of curfews that target political activity. Historically, curfews have been very difficult to challenge. They suffer from mootness issues because they tend to be temporary in nature, so associated harms are also temporary. Likely as a result, challenges to curfews lawreview - Minnesota Law Review - [Data Breach Class Actions: How Article III Standing Analysis Should Evolve After <em>TransUnion, LLC v. Ramirez</em>](https://minnesotalawreview.org/article/data-breach-class-actions-how-article-iii-standing-analysis-should-evolve-after-transunion-llc-v-ramirez/) - By Caleb A. Johnson. Full Text. Data breaches have become a common occurrence for many people in America. Companies retain consumers’ personal information (SSN, DOB, bank account, credit card, biometrics, etc.) to better serve the consumers as well as to improve their company’s bottom line. Hackers get into those databases to fraudulently use existing consumer lawreview - Minnesota Law Review - [Antitrust Federalism and the Prison-Industrial Complex](https://minnesotalawreview.org/article/antitrust-federalism-and-the-prison-industrial-complex/) - By Gregory Day. Full Text. States are not only prolific monopolists but also virtually unaccountable. Consider the prison-industrial complex, where states force inmates to pay monopoly prices while suppressing competition for commissary items, phone services, medicine, and more. While the Sherman Act would often ban these types of practices, states are immune from antitrust scrutiny lawreview - Minnesota Law Review - [Automated Agencies](https://minnesotalawreview.org/article/automated-agencies/) - By Joshua D. Blank and Leigh Osofsky. Full Text. When individuals have questions about federal benefits, services, and legal rules, they increasingly seek help from government chatbots, virtual assistants, and other automated tools. Most scholars who have studied artificial intelligence and federal government agencies have not focused on the government’s use of technology to offer lawreview - Minnesota Law Review - [The Public Stakes of Consumer Law: The Environment, the Economy, Health, Disinformation, and Beyond](https://minnesotalawreview.org/article/the-public-stakes-of-consumer-law-the-environment-the-economy-health-disinformation-and-beyond/) - By Rory Van Loo. Full Text. Consumer law has a conflicted and narrow identity. It is most immediately a form of business law, governing market transactions between people and companies. Accordingly, the microeconomic analysis of markets is the dominant influence on consumer law. But consumer law is often described as, and assumed to be about, lawreview - Minnesota Law Review - [The Law Enforcement Lobby](https://minnesotalawreview.org/article/the-law-enforcement-lobby/) - By Zoë Robinson and Stephen Rushin. Full Text. The law enforcement lobby represents one of the most important and undertheorized barriers to criminal justice reform. We define the law enforcement lobby as the constellation of entrenched actors within the justice system—particularly police unions, correctional officer unions, and prosecutor associations—that exert an outsized role in policy lawreview - Minnesota Law Review - [Tea and Donuts](https://minnesotalawreview.org/article/tea-and-donuts/) - By Derek E. Bambauer and Robert W. Woods. Full Text. U.S. trademark law often permits simultaneous use of the same brand by multiple entities. Its approach to deciding when and how this concurrent use is permissible has become antiquated, rooted in outdated assumptions about trade and telecommunications. By using the physical location of mark-users as lawreview - Minnesota Law Review - [The Battle for the Soul of the GDPR: Clashing Decisions of Supervisory Authorities Highlight Potential Limits of Procedural Data Protection](https://minnesotalawreview.org/article/the-battle-for-the-soul-of-the-gdpr-clashing-decisions-of-supervisory-authorities-highlight-potential-limits-of-procedural-data-protection/) - By Jordan Francis. Full Text. For privacy professionals, 2023 got off to a big start as the Irish Data Protection Commission (DPC) announced €390 million in fines against Meta Platforms Ireland Limited (“Meta”) for General Data Protection Regulation (GDPR) violations by its services Facebook and Instagram. Meta is no stranger to GDPR enforcement, having accumulated lawreview - Minnesota Law Review - [Interstate Cannabis Compacts: The Road to a Regional Legal Cannabis Economy](https://minnesotalawreview.org/article/interstate-cannabis-compacts-the-road-to-a-regional-legal-cannabis-economy/) - By Michael J.K.M. Kinane. Full Text. Since the passage of the Controlled Substances Act in 1970, cannabis has been a Schedule I drug. Yet twenty-one states, two territories, and the District of Columbia have legalized recreational cannabis, and even more have legalized it for medical use. Despite Supreme Court precedent holding the conduct of these lawreview - Minnesota Law Review - [The Ethics of Abortion Ban Exceptions: Is the “Life-Threatening” Exception Threatening Lives?](https://minnesotalawreview.org/article/the-ethics-of-abortion-ban-exceptions-is-the-life-threatening-exception-threatening-lives/) - By Mary E. Fleming. Full Text. Forty-three states have laws that outlaw abortion except when necessary to save the life of the mother. The exact language used in each state’s respective law varies, but for ease, this Essay will refer to all variations as “life-threatening” exceptions to abortion prohibitions. Prior to 2022, issues with life-threatening lawreview - Minnesota Law Review - [Evolving Online Terrain in an Inert Legal Landscape: How Algorithms and AI Necessitate an Amendment of Section 230 of the Communications Decency Act](https://minnesotalawreview.org/article/evolving-online-terrain-in-an-inert-legal-landscape-how-algorithms-and-ai-necessitate-an-amendment-of-section-230-of-the-communications-decency-act/) - By Ellison Snider. Full Text. The consequences of online speech are undeniable, and yet, as the internet rapidly evolves, Section 230 of the Communications Decency Act (CDA 230), the federal law most concerned with internet regulation, stays the same. The pervasive presence of algorithms and artificial intelligence (AI), sophisticated technologies used by platforms to autonomously lawreview - Minnesota Law Review - [Grandpa Sherman Did Not See Google Coming: Evolutions in Antitrust to Regulate Data Aggregating Firms](https://minnesotalawreview.org/article/grandpa-sherman-did-not-see-google-coming-evolutions-in-antitrust-to-regulate-data-aggregating-firms/) - By Michael J.K.M. Kinane. Full Text. There is a crisis of confidence regarding the regulation of Google and other Big Tech firms. In 2021, over fifty-five percent of Americans believed that under-regulation of Big Tech has resulted in these companies having too much economic influence. Seventy-five percent are not confident that government will hold companies lawreview - Minnesota Law Review - [There Is No Such Thing as Circuit Law](https://minnesotalawreview.org/article/there-is-no-such-thing-as-circuit-law/) - By Thomas B. Bennett. Full Text. Lawyers and judges often talk about “the law of the circuit,” meaning the set of legal rules that apply within a particular federal judicial circuit. Seasoned practitioners are steeped in circuit law, it is said. Some courts have imagined that they confront a choice between applying the law of lawreview - Minnesota Law Review - [Procedural Posture and Social Choice](https://minnesotalawreview.org/article/procedural-posture-and-social-choice/) - By Michael Risch. Full Text. Lawyers, judges, and professors have always been interested in the way cases unfold procedurally—their procedural posture. To date, however, nobody has provided a generalized theoretical framework to explain how procedural posture influences outcomes. This Article uses social choice theory to fill that void, providing much-needed insight into the ways that lawreview - Minnesota Law Review - [Gender-Based Religious Persecution](https://minnesotalawreview.org/article/gender-based-religious-persecution/) - By Pooja R. Dadhania. Full Text. People fleeing gender-based violence in the home face an uphill battle when seeking asylum in the United States. Through the lens of public and private spheres, this Article explores the underutilized religion ground for asylum for cases involving gender-based violence in the home—i.e., the private sphere. This Article argues lawreview - Minnesota Law Review - [Criminal Terms](https://minnesotalawreview.org/article/criminal-terms/) - By Anna Roberts. Full Text. Core terms used by criminal legal academics bolster the criminal system and ward off radical critique. They do this by conveying implicit messages of three types: that the criminal system is generally accurate, that it is necessary, and that it is well-intentioned and moving in the right direction. While recent lawreview - Minnesota Law Review - [Localism, Pretext, and the Color of School Dollars](https://minnesotalawreview.org/article/localism-pretext-and-the-color-of-school-dollars/) - By Derek W. Black. Full Text. Educational inequality is embedded in the structure of education itself. School districts, not individual schools, are the gatekeepers of educational opportunity. Racial isolation exists between school districts, not within them. Enormous funding gaps exist between neighboring school districts, sometimes in the same city, but not within them. These fault lawreview - Minnesota Law Review - [Tattoos, Norms, and Implied Licenses](https://minnesotalawreview.org/article/tattoos-norms-and-implied-licenses/) - By Aaron Perzanowski. Full Text. This Essay considers the legal questions raised by a recent flurry of tattoo copyright disputes and their intersection with industry norms. In particular, Perzanowski argues that public displays, reproductions, derivative works, and other uses of tattoo designs fall within the scope of a broad implied license when they are employed lawreview - Minnesota Law Review - [An (Un)reasonable Expectation of Privacy? Analysis of the Fourth Amendment When Applied to Keyword Search Warrants](https://minnesotalawreview.org/article/an-unreasonable-expectation-of-privacy-analysis-of-the-fourth-amendment-when-applied-to-keyword-search-warrants/) - By Helen Winters. Full Text. In the “digital age,” perpetual changes in technology have brought increased opportunities for exchanges of personal data between individuals and third parties. Often, this information-sharing is a necessity to fully participate in modern society. Yet, investigative techniques such as reverse keyword search warrants have called into question the applicability of lawreview - Minnesota Law Review - [School Curricula and Silenced Speech: A Constitutional Challenge to Critical Race Theory Bans](https://minnesotalawreview.org/article/school-curricula-and-silenced-speech-a-constitutional-challenge-to-critical-race-theory-bans/) - By Dylan Saul. Full Text. In 2021, conservative politicians, activists, and media personalities ignited a culture war over teaching critical race theory (CRT) in public schools. Something about this manufactured conflict struck a chord with American voters: school board meetings have devolved into screaming matches, education became a critical wedge issue in elections across the lawreview - Minnesota Law Review - [Public Law, Private Platforms](https://minnesotalawreview.org/article/public-law-private-platforms/) - By Andrew Keane Woods. Full Text. Our law—both our constitutional law and much of our statutory law—has long drawn a fraught distinction between public and private domains. Indeed, debates about the public/private distinction date as far back as liberalism itself. But today’s private digital platforms strain that distinction to a new degree. Platforms have become lawreview - Minnesota Law Review - [Americans, Beyond States and Territories](https://minnesotalawreview.org/article/americans-beyond-states-and-territories/) - By Tom C.W. Lin. Full Text. For over a century, the law has systemically marginalized over three million Americans living in the unincorporated Territories of the United States. The law has long defined the Territories homogenously and subserviently to States. It has segregated the rights and privileges of citizenship between those living in States and lawreview - Minnesota Law Review - [“Can You Hear Me Now?”: The Right to Counsel Prior to Execution of a Cell Phone Search Warrant](https://minnesotalawreview.org/article/can-you-hear-me-now-the-right-to-counsel-prior-to-execution-of-a-cell-phone-search-warrant/) - By Nathaniel Mensah. Full Text. As advances in technology allow law enforcement to gain ever more expansive surveillance powers, the criminal justice system scrambles to keep up. The Fourth Amendment has been the primary vehicle through which modern criminal procedure has adapted to new technologies. That limited approach risks undue harm to criminal defendants and lawreview - Minnesota Law Review - [Deals in the Heartland: Renewable Energy Projects, Local Resistance, and How Law Can Help](https://minnesotalawreview.org/article/deals-in-the-heartland-renewable-energy-projects-local-resistance-and-how-law-can-help/) - By Christiana Ochoa, Kacey Cook, and Hanna Weil. Full Text. Rural communities in every windblown and sun-drenched region of the United States are enmeshed in legal, political, and social conflicts related to the country’s rapid transition to renewable energy. Organized local opposition has foreclosed millions of acres from renewable energy development, impeding national and state-level lawreview - Minnesota Law Review - [The Old Hand Problem](https://minnesotalawreview.org/article/the-old-hand-problem/) - By Xiao Wang. Full Text. Senior status is a special form of retirement for federal judges. When a judge takes senior status, they open a vacancy on their court, yet continue to hear and decide cases. Most active judges today eventually go senior. Yet many do not do so the very moment they become eligible. lawreview - Minnesota Law Review - [Why Are There So Many Taxes?: Teleworking and the Multiple Taxation Dilemma—Time to Standardize and Apportion](https://minnesotalawreview.org/article/why-are-there-so-many-taxes-teleworking-and-the-multiple-taxation-dilemma-time-to-standardize-and-apportion/) - By Xiaoyuan Zhou. Full Text. Due in large part to the COVID-19 pandemic, remote teleworking has become the new norm for many professions. This dramatic shift in the workforce has raised serious tax concerns, and it has caused double taxation troubles for millions of remote workers. The fallout from COVID-19 continues to have a significant lawreview - Minnesota Law Review - [Minimum Deadly Contacts](https://minnesotalawreview.org/article/minimum-deadly-contacts/) - By Jesse Noltimier. Full Text. Domestic violence is a national epidemic. Roughly one in three women will experience some form of domestic violence during their lifetime. Women are also seventy times more likely to be killed in the two weeks after leaving their intimate partner than at any other time during their relationship. Thus, it lawreview - Minnesota Law Review - [Say It Ain’t <em>Roe</em>: <em>Dobbs</em> and Reason Bans Are Trojan Horses for the Down Syndrome Community](https://minnesotalawreview.org/article/say-it-aint-roe-dobbs-and-reason-bans-are-trojan-horses-for-the-down-syndrome-community/) - By Calvin Lee. Full Text. In recent times, one of the most in vogue methods for curtailing abortion rights has been through the enactment of “reason bans,” statutes precluding abortions if the procedure is being sought due to the sex, race, or potential genetic abnormality of the fetus. This Note focuses on the contemporary litigation lawreview - Minnesota Law Review - [Nonexclusive Functions and Separation of Powers Law](https://minnesotalawreview.org/article/nonexclusive-functions-and-separation-of-powers-law/) - By Ilan Wurman. Full Text. The Constitution’s text, structure, and history suggest that some governmental functions strictly and exclusively appertain to a particular branch, and to the exercise of a single vested power. Many governmental functions, however, are nonexclusive: their exercise has some combination of legislative, executive, and judicial characteristics and, as a result, can lawreview - Minnesota Law Review - [<em>Brady</em> Lists](https://minnesotalawreview.org/article/brady-lists/) - By Rachel Moran. Full Text. Brady lists, named after the Supreme Court’s 1963 decision Brady v. Maryland, are lists some prosecutors maintain of law enforcement officers with histories of misconduct that could impact the officers’ credibility. The lists serve as tools for prosecutors to track officer misconduct and disclose that information to defense counsel where lawreview - Minnesota Law Review - [Essential Property](https://minnesotalawreview.org/article/essential-property/) - By Timothy M. Mulvaney and Joseph William Singer. Full Text. For a sizable swath of the U.S. population, incomes and wealth are insufficient to cover life’s most basic necessities even in the most ordinary of times. A disturbingly resilient explanation for this state of affairs rests on the view that resource inequities are avoidable through lawreview - Minnesota Law Review - [How the Liberal First Amendment Under-Protects Democracy](https://minnesotalawreview.org/article/how-the-liberal-first-amendment-under-protects-democracy/) - By Tabatha Abu El-Haj. Full Text. This Article advances a distinct theoretical account of the First Amendment that stresses its role as the underwriter of a republican form of government. Predicated on a more accurate description of the processes of self-governance, the advanced theory delivers a construction of the First Amendment that actually protects democracy lawreview - Minnesota Law Review - [Handling the <em>Mayo</em> Powder Keg: Emphasizing Preemption in § 101 Biotechnology Inquiries](https://minnesotalawreview.org/article/handling-the-mayo-powder-keg-emphasizing-preemption-in-§-101-biotechnology-inquiries/) - By Zachary M. Robole. Full Text. To incite a jury’s emotions, attorneys have stated that the “clear and convincing” evidentiary standard required to invalidate a patent is the same standard of proof required to justify taking a child away from a parent. Although such statements are likely an evidentiary rule violation, the point is illustrative lawreview - Minnesota Law Review - [A Century of Business in the Supreme Court, 1920–2020](https://minnesotalawreview.org/article/a-century-of-business-in-the-supreme-court-1920-2020/) - By Lee Epstein and Mitu Gulati. Full Text. A decade and a half into its life, we ask: how pro-business is the Roberts Court? Using a simple objective measure—how often does business win in the Court when it is fighting a non-business—we find that the Roberts Court may be the most pro-business Court in a lawreview - Minnesota Law Review - [Term Limits and Embracing a Political Supreme Court](https://minnesotalawreview.org/article/term-limits-and-embracing-a-political-supreme-court/) - By Guha Krishnamurthi. Full Text. In the run up to the 2020 Presidential election, then-candidate Joseph R. Biden, Jr. lamented the increasing dysfunction of the United States Supreme Court and campaigned on rectifying the august institution. This was indeed part of Biden’s general message: a return to norms, normalcy, and mutual respect. The problems with lawreview - Minnesota Law Review - [Antitrust Reformers Should Consider the Consequences of Mandatory Treble Damages: What the Admonition Against Putting New Wine in Old Wineskins Can Teach Us About Antitrust Reform](https://minnesotalawreview.org/article/antitrust-reformers-should-consider-the-consequences-of-mandatory-treble-damages-what-the-admonition-against-putting-new-wine-in-old-wineskins-can-teach-us-about-antitrust-reform/) - By Henry J. Hauser, Tiffany L. Lee, and Thomas G. Krattenmaker. Full Text. The debate over antitrust reform is reaching a crescendo. Several proposals have been introduced in Congress and state legislatures to expand the scope of substantive antitrust rules governing marketplace behavior. Missing from the current discussion, however, is careful consideration of whether these lawreview - Minnesota Law Review - [“What Has Always Been True”: The Washington Supreme Court Decides That Seizure Law Must Account for Racial Disparity in Policing](https://minnesotalawreview.org/article/what-has-always-been-true-the-washington-supreme-court-decides-that-seizure-law-must-account-for-racial-disparity-in-policing/) - By Aliza Hochman Bloom. Full Text. In June, the Washington Supreme Court held that courts must consider an individual’s race as part of the totality of circumstances when determining whether that individual has been seized by a police officer. Like the Fourth Amendment of the U.S. Constitution, Washington’s parallel constitutional provision requires that the determination lawreview - Minnesota Law Review - [Gruel and Unusual: Prison Punishment Diets and the Eighth Amendment](https://minnesotalawreview.org/article/gruel-and-unusual-prison-punishment-diets-and-the-eighth-amendment/) - By Jackie Cuellar. Full Text. For as long as prisons have existed, food has been used as a mechanism of prisoner control. One of the earliest forms of food as punishment was the aptly named “bread-and-water diet,” providing prisoners with just 700 calories per day. The diet was later deemed cruel and unusual in violation lawreview - Minnesota Law Review - [The Diversity Formula: A Race-Neutral Playbook for Equitable Student Assignment and its Application to Magnet Schools](https://minnesotalawreview.org/article/the-diversity-formula-a-race-neutral-playbook-for-equitable-student-assignment-and-its-application-to-magnet-schools/) - By Joshua Gutzmann. Full Text. Contrary to the revisionist history told by some, Brown v. Board of Education did not mark a permanent end to school segregation. Indeed, by some measures, many school districts have experienced increases in racial and socioeconomic segregation over the past few decades. And the impact of this segregation manifests itself lawreview - Minnesota Law Review - [Unprotected but Not Forgotten: A Call to Action to Help Federal Judiciary Employees Address Workplace Sexual Misconduct](https://minnesotalawreview.org/article/unprotected-but-not-forgotten-a-call-to-action-to-help-federal-judiciary-employees-address-workplace-sexual-misconduct/) - By Theresa M. Green. Full Text. Federal judiciary employees are not currently protected by Title VII of the Civil Rights Act of 1964—the federal statute that prohibits workplace discrimination, retaliation, and harassment based on, among other things, a person’s sex. In effect, this means federal judiciary employees are not adequately protected from sexual misconduct. Like lawreview - Minnesota Law Review - [Optional Legislation](https://minnesotalawreview.org/article/optional-legislation/) - By Jacob Bronsther and Guha Krishnamurthi. Full Text. Not since the nineteenth century has partisanship been this intense. The only thing that Democrats and Republicans can agree upon, it seems, is that “Washington is broken.” Beyond the chimeras of bipartisanship or enduring one-party rule, this Article proposes a new solution to legislative dysfunction in Washington: lawreview - Minnesota Law Review - [Killing the Motivation of the Minority Law Professor](https://minnesotalawreview.org/article/killing-the-motivation-of-the-minority-law-professor/) - By Goldburn P. Maynard Jr. Full Text. This Essay hypothesizes that a significant number of minority junior scholars with radical or non-normative ideas forego those projects or mute them to fit their work within the dominant paradigm of legal scholarship. Even those who move forward and publish their radical or non-normative proposals spend significant time lawreview - Minnesota Law Review - [Unsexing Breastfeeding](https://minnesotalawreview.org/article/unsexing-breastfeeding/) - By Naomi Schoenbaum. Full Text. For half a century, constitutional sex equality doctrine has been combating harmful sex stereotypes by invalidating laws that treat women as caregivers and men as breadwinners. Yet decades after the constitutional sex equality revolution unsexed parenting roles, one area of parenting has escaped this doctrine’s exacting gaze: breastfeeding. In the lawreview - Minnesota Law Review - [Rethinking the Crime of Rioting](https://minnesotalawreview.org/article/rethinking-the-crime-of-rioting/) - By Nick Robinson. Full Text. The fear of riots has long loomed large in the public imagination. This fear is at least partly justified. Riots can present unique challenges, both in the harm they can cause and in the government’s ability to control them. However, from the American colonies to the Civil Rights era, there lawreview - Minnesota Law Review - [Citizenship Disparities](https://minnesotalawreview.org/article/citizenship-disparities/) - By Emily Ryo and Reed Humphrey. Full text. Citizenship is “nothing less than the right to have rights,” wrote Chief Justice Warren in his Perez v. Brownell dissent. Yet no study to date has been able to systematically investigate agency decisions to grant or deny citizenship in an administrative process called naturalization adjudication. This Article lawreview - Minnesota Law Review - [Nonpartisan Supreme Court Reform and the Biden Commission](https://minnesotalawreview.org/article/nonpartisan-supreme-court-reform-and-the-biden-commission/) - By Daniel Epps. Full Text. Prior to his election to the Presidency, Joe Biden promised to create a bipartisan commission that would consider and evaluate reforms to the Supreme Court of the United States. Shortly after his inauguration, he did just that, announcing a thirty-six-member Commission on the Supreme Court. Made up of distinguished scholars lawreview - Minnesota Law Review - [Who Decides Where the Renewables Should Go?: A Response to Danielle Stokes’ <em>Renewable Energy Federalism</em>](https://minnesotalawreview.org/article/who-decides-where-the-renewables-should-go-a-response-to-danielle-stokes-renewable-energy-federalism/) - By Michael B. Gerrard. Full Text. One of the central tasks in addressing the climate crisis is transitioning from an energy system based on fossil fuels to one that mainly uses renewable energy. In her article “Renewable Energy Federalism,” Professor Danielle Stokes has highlighted one of the key impediments to this transition—delays in state and lawreview - Minnesota Law Review - [“Black First, Children Second”: Why Juvenile Life Without Parole Violates the Equal Protection Clause](https://minnesotalawreview.org/article/black-first-children-second-why-juvenile-life-without-parole-violates-the-equal-protection-clause/) - By Avery Katz. Full Text. The United States is the only country in the world that allows imposition of juvenile life without parole (LWOP) sentences. This sentencing scheme was born out of the 1990’s “tough on crime” era, when society held the belief that juvenile offenders were “super-predators” and should face adult time for adult lawreview - Minnesota Law Review - [One Nation Subsidizing God: How the Implementation of the Paycheck Protection Program Revealed the Deteriorating Wall Between Church and State](https://minnesotalawreview.org/article/one-nation-subsidizing-god-how-the-implementation-of-the-paycheck-protection-program-revealed-the-deteriorating-wall-between-church-and-state/) - By Elliot Ergeson. Full Text. The wall separating Church and State is at risk of collapse. The Religion Clauses of the United States Constitution act in tandem to en- sure that the freedom of religion is protected. Over the past three decades, however, the Supreme Court has steadily chipped away at the Establishment Clause while lawreview - Minnesota Law Review - [Reflections of a Supreme Court Commissioner](https://minnesotalawreview.org/article/reflections-of-a-supreme-court-commissioner/) - By William Baude. Full Text. The Presidential Commission on the Supreme Court of the United States was given a fundamentally frustrating task: bipartisan expert analysis of an institution whose greatest challengers are political. I served on that commission and offer my own views on Supreme Court reform: Court packing is lawful but unjustified. Term limits, lawreview - Minnesota Law Review - [A Hill to Die On: Federal Court Reform in the 2020s](https://minnesotalawreview.org/article/a-hill-to-die-on-federal-court-reform-in-the-2020s/) - Symposium Foreword by Daniel P. Suitor. Full Text. Is the Federal Judiciary broken and, if so, what can we do to fix it? To that end, Minnesota Law Review hosted its annual Symposium on March 25, 2022. Titled “A Hill to Die On: Federal Court Reform in the 2020s,” the event gathered some of the lawreview - Minnesota Law Review - [Technically Important: The Essential Role of Technical Corrections and How Congress Can Revive Them](https://minnesotalawreview.org/article/technically-important-the-essential-role-of-technical-corrections-and-how-congress-can-revive-them/) - By Mollie M. Wagoner. Full Text. Drafting mistakes are an inevitable part of legislation being written by human institutions. In the context of tax, the complex and nuanced field is rife with opportunities for unintended glitches and mistakes to find their way into legislation. What happens when these mistakes result in the law not properly lawreview - Minnesota Law Review - [A Prisoner’s Dilemma: Why COVID-19 Must Serve as a Catalyst to Address Compassionate Release Limitations in Federal Prison](https://minnesotalawreview.org/article/a-prisoners-dilemma-why-covid-19-must-serve-as-a-catalyst-to-address-compassionate-release-limitations-in-federal-prison/) - By Mary M. Haasl. Full Text. COVID-19 significantly impacted the U.S. prison population. Given concerns surrounding its rapid spread through prisons, many federal inmates petitioned for compassionate release during the pandemic’s initial months. This significant increase in compassionate release petitions has yielded an impactful case study regarding the significant limitations posed by the compassionate release lawreview - Minnesota Law Review - [Power to the People: Distributing the Benefits of a Clean Energy Transition Through Equitable Policy, Legislation, and Energy Justice Initiatives](https://minnesotalawreview.org/article/power-to-the-people-distributing-the-benefits-of-a-clean-energy-transition-through-equitable-policy-legislation-and-energy-justice-initiatives/) - By Alexandria E. Dolezal. Full Text. The transition to renewable energy may be accelerating, but the path to a clean energy future is still littered with potential inequities. This reality has become increasingly evident in the early 2020s as the COVID-19 pandemic has exacerbated injustices within the existing energy system, leaving many low-income and minority lawreview - Minnesota Law Review - [Psychological Parenthood](https://minnesotalawreview.org/article/psychological-parenthood/) - By Anne L. Alstott, Anne C. Dailey, and Douglas NeJaime. Full Text. Family law in the United States is governed by an assortment of familiar legal doctrines and policies that often undermine, and sometimes sever, the relationships between children and the adults with whom children are most closely bonded. For example, the “best interests of lawreview - Minnesota Law Review - [Constraining Criminal Laws](https://minnesotalawreview.org/article/constraining-criminal-laws/) - By F. Andrew Hessick and Carissa Byrne Hessick. Full Text. Most criminal law is statutory. Although the violation of criminal statutes can result in significantly more serious consequences than violations of other types of statutes, the dominant theories of statutory interpretation do not distinguish between criminal statutes and non-criminal statutes. Those theories say that, when lawreview - Minnesota Law Review - [Public Undersight](https://minnesotalawreview.org/article/public-undersight/) - By Christina Koningisor. Full Text. The laws governing transparency and accountability in government are deeply flawed and plagued by steep financial costs, high barriers to access, and widespread corporate capture. While legal scholars have suggested a wide variety of fixes, they have focused almost exclusively on legal solutions. They have largely overlooked a growing set lawreview - Minnesota Law Review - [The Character of Jury Exclusion](https://minnesotalawreview.org/article/the-character-of-jury-exclusion/) - By Anna Offit. Full Text. Encounters with the legal system are unevenly distributed throughout the American population, with Black and poor citizens targeted as disparate subjects of surveillance, arrest, and criminal conviction. At the same time, these encounters, as well as a stated belief in the unfairness of the legal system, are commonly viewed as lawreview - Minnesota Law Review - [Pirate Arbitration](https://minnesotalawreview.org/article/pirate-arbitration/) - By David Horton. Full Text. The U.S. Supreme Court’s expansion of the Federal Arbitration Act (FAA) has transformed the American civil justice system. In a series of controversial opinions, the Court has held that the FAA preempts state law, bars class actions, and empowers companies to delegate questions about the arbitration itself to arbitrators. For lawreview - Minnesota Law Review - [Remembrance of and Tribute to Walter F. Mondale](https://minnesotalawreview.org/article/remembrance-of-and-tribute-to-walter-f-mondale-3/) - By Amy Klobuchar. Full Text. This volume of Minnesota Law Review is dedicated to the memory of the Honorable Walter F. Mondale, former Vice President of the United States of America. A 1956 graduate of the University of Minnesota Law School and an editor of Minnesota Law Review Volume 39, Mondale was the 42nd Vice lawreview - Minnesota Law Review - [Too Hot to Handle?: Native Advertising and the <em>Firestone</em> Dilemma](https://minnesotalawreview.org/article/too-hot-to-handle-native-advertising-and-the-firestone-dilemma/) - By Eliezer Joseph Silberberg. Full Text. Native advertisements are advertisements that mimic the format and content of unpaid-for content that surrounds them. Instead of interrupting the content being consumed, native advertisements become part of that content, and because of this unique format, consumers often want to engage with native advertisements. This reformulation of advertising has lawreview - Minnesota Law Review - [Designer Minor: Creating a Better Legal Regime for Pediatric Cosmetic Procedures](https://minnesotalawreview.org/article/designer-minor-creating-a-better-legal-regime-for-pediatric-cosmetic-procedures/) - By Hannah Oliason. Full Text. Each year, thousands of minors in the United States undergo elective cosmetic surgeries to “enhance” their appearances. In the case of young children, these surgeries are most often arranged by parents or guardians with little to no state oversight, despite the physical and psychological risks of such procedures. This Note lawreview - Minnesota Law Review - [Inheriting Privilege](https://minnesotalawreview.org/article/inheriting-privilege/) - By Allison Anna Tait. Full text. All families may be created equal, so to speak. But differences between families in terms of economic wealth, resource networks, and access to cultural capital are both severe and stark. A large part of what shapes this scenery of economic possibility is the legal framework of wealth transfer. Wealth lawreview - Minnesota Law Review - [Antitrust, Attention, and the Mental Health Crisis](https://minnesotalawreview.org/article/antitrust-attention-and-the-mental-health-crisis/) - By Gregory Day. Full Text. Competition for attention is causing a mental health crisis. At issue is that platforms, devices, and applications (“apps”) strive to maximize attention by, as examples, presenting users with curated streams of extremist content. The purpose of doing so is economic: a platform or app’s value is typically derived from the lawreview - Minnesota Law Review - [The Costs of the Punishment Clause](https://minnesotalawreview.org/article/the-costs-of-the-punishment-clause/) - By Cortney E. Lollar. Full Text. In recent years, scholars and advocates have drawn attention to the problematic use of fines and fees to keep those convicted of crimes enmeshed in the criminal legal system. A visible thread connects the imposition of modern criminal court debts to the costs inflicted on formerly enslaved individuals convicted lawreview - Minnesota Law Review - [Renewable Energy Federalism](https://minnesotalawreview.org/article/renewable-energy-federalism/) - By Danielle Stokes. Full text. No one seriously questions that an improved and decarbonized energy supply system is a key component of climate change mitigation, but the United States’ system of federalism complicates the siting of utility-scale renewable energy facilities. The Biden Administration presents the United States with an opportunity to reimagine how this country lawreview - Minnesota Law Review - [Rescinding Rights](https://minnesotalawreview.org/article/rescinding-rights/) - By Joseph Landau. Full text. In the wake of the Trump Administration’s three Supreme Court appointments, many commentators are bracing for a rightward shift in jurisprudence that could undermine a litany of civil rights and equality protections—including reproductive rights, LGBTQ rights, race-and ethnicity-centered protections, voting rights, and more. Yet the Court’s apparent disinclination for advancing lawreview - Minnesota Law Review - [Chilling Effects and Unequal Subjects: A Response to Jonathon Penney’s <em>Understanding Chilling Effects</em>](https://minnesotalawreview.org/article/chilling-effects-and-unequal-subjects-a-response-to-jonathon-penneys-understanding-chilling-effects/) - By Karen Levy. Full Text. The mark of a strong theoretical argument is that it opens our minds to new empirical questions. In his generative article Understanding Chilling Effects, Jonathon Penney provides a persuasive and nuanced argument for interpreting chilling effects through the lens of social conformity, rather than self-censorship of lawful conduct. Penney’s own - [Size Matters (Even If the Treasury Insists It Doesn’t): Why Small Taxpayers Should Receive a De Minimis Exemption from the GILTI Regime](https://minnesotalawreview.org/article/size-matters-even-if-the-treasury-insists-it-doesnt-why-small-taxpayers-should-receive-a-de-minimis-exemption-from-the-gilti-regime/) - By Patrick Riley Murray. Full Text. The Tax Cuts & Jobs Act drastically altered the U.S. international tax landscape. Among its most significant changes is the implementation of the Global Intangible Low-Taxed Income (GILTI) regime. GILTI attempts to increase the U.S. tax base by preventing both the offshoring of intangible assets and the avoidance of - [Show Me the Money: Addressing the Oversight Gap in Private Foundation Donations to Donor-Advised Funds](https://minnesotalawreview.org/article/show-me-the-money-addressing-the-oversight-gap-in-private-foundation-donations-to-donor-advised-funds/) - By Kerry Gibbons. Full Text. Americans’ charitable giving habits are changing. Since the 1990s, a new form of charitable giving (donor-advised funds, or “DAFs”) has skyrocketed in popularity. In 2018, DAFs held at least $72 billion in charitable dollars—representing a 200% increase from four years prior. DAFs’ ascendance can be attributed to their ease of - [A Moral and Legal Imperative to Act: The Bail Bond Industry, Consumer Protection, and Public Enforcers](https://minnesotalawreview.org/article/a-moral-and-legal-imperative-to-act-the-bail-bond-industry-consumer-protection-and-public-enforcers/) - By Brandie Burris. Full Text. Bail is not a fine, and it is not a punishment. In theory, bail serves a simple goal: it ensures an accused defendant will appear at their criminal hearings. Yet, as practiced, the American bail system is insidious. Bail bond agencies exploit their grossly unequal bargaining power, depress consumer access - [Understanding Chilling Effects](https://minnesotalawreview.org/article/understanding-chilling-effects/) - By Jonathon W. Penney. Full Text. With digital surveillance and censorship on the rise, the amount of data available unprecedented, and corporate and governmental actors increasingly employing emerging technologies like artificial intelligence and facial recognition technology for surveillance and data analytics, concerns about “chilling effects,” that is, the capacity for these activities to “chill” or - [Patent Law’s Deference Paradox](https://minnesotalawreview.org/article/patent-laws-deference-paradox/) - By Paul R. Gugliuzza. Full Text. Courts frequently defer to the decisions of administrative agencies, particularly when the decision is thoroughly deliberated and within the agency’s realm of technical and legal expertise. Conversely, when an agency gives little thought to a matter or brings no special knowledge to bear, the agency gets little or no - [Lifting Labor’s Voice: A Principled Path Toward Greater Worker Voice and Power Within American Corporate Governance](https://minnesotalawreview.org/article/lifting-labors-voice-a-principled-path-toward-greater-worker-voice-and-power-within-american-corporate-governance/) - By Leo E. Strine, Jr., Aneil Kovvali & Oluwatomi O. Williams. Full Text. In view of the decline in gainsharing by corporations with American workers over the last forty years, advocates for American workers have expressed growing interest in allowing workers to elect representatives to corporate boards. Board level representation rights have gained appeal because - [Contractual Depth](https://minnesotalawreview.org/article/contractual-depth/) - By Cathy Hwang & Matthew Jennejohn. Full Text. Who is the intended audience of a contract? A court, who may be called upon to resolve a dispute, is one audience. Another is commercial communities, who punish breach with reputational sanctions, per the longstanding literature on informal enforcement. This Article shows how modern contracts have more - [The Input Fallacy](https://minnesotalawreview.org/article/the-input-fallacy/) - By Talia B. Gillis. Full Text. Algorithmic credit pricing threatens to discriminate against protected groups. Traditionally, fair lending law has addressed such threats by scrutinizing inputs. But input scrutiny has become a fallacy in the world of algorithms. Using a rich dataset of mortgages, I simulate algorithmic credit pricing and demonstrate that input scrutiny fails - [Remembrance of and Tribute to Walter F. Mondale](https://minnesotalawreview.org/article/remembrance-of-and-tribute-to-walter-f-mondale-2/) - By 30th Attorney General of Minnesota Keith Ellison. Full Text. This volume of Minnesota Law Review is dedicated to the memory of the Honorable Walter F. Mondale, former Vice President of the United States of America. A 1956 graduate of the University of Minnesota Law School and an editor of Minnesota Law Review Volume 39, - [K Is for Contract―Why Is It, Though? A K’s Study on the Origins, Persistence and Propagation of Legal Konventions](https://minnesotalawreview.org/article/k-is-for-contract―why-is-it-though-a-ks-study-on-the-origins-persistence-and-propagation-of-legal-konventions/) - By Hanjo Hamann. Full Text. Just like Supreme Court Justices, law school students in the United States almost universally abbreviate the word “contract” using the capital letter “K.” Despite this consensus, no one ever sought to explain why a word that starts with “C” should get shortened to “K” instead. This Essay investigates this question. - [K Is for Contract―Why Is It, Though? A K’s Study on the Origins, Persistence and Propagation of Legal Konventions](https://minnesotalawreview.org/article/k-is-for-contract―why-is-it-though-a-ks-study-on-the-origins-persistence-and-propagation-of-legal-konventions-2/) - By Hanjo Hamann. Full Text. Just like Supreme Court Justices, law school students in the United States almost universally abbreviate the word “contract” using the capital letter “K.” Despite this consensus, no one ever sought to explain why a word that starts with “C” should get shortened to “K” instead. This Essay investigates this question. lawreview - Minnesota Law Review - [Fighting Orthodoxy: Challenging Critical Race Theory Bans and Supporting Critical Thinking in Schools](https://minnesotalawreview.org/article/fighting-orthodoxy-challenging-critical-race-theory-bans-and-supporting-critical-thinking-in-schools/) - By Joshua Gutzmann. Full Text. Fox News mentioned critical race theory (CRT) more than 1,900 times from April to mid-July of 2021, marking CRT as a new focus of Republicans and conservative donors and sparking a movement to ban teaching of the theory in schools. Nine states have already passed legislation intended to ban the - [Me, Myself, and My Digital Double: Extending Sara Greene’s <em>Stealing (Identity) From the Poor</em> to the Challenges of Identity Verification](https://minnesotalawreview.org/article/me-myself-and-my-digital-double-extending-sara-greenes-stealing-identity-from-the-poor-to-the-challenges-of-identity-verification/) - By Michele Estrin Gilman. Full Text. Identity is an essential part of the human condition. When one's identity is stolen or when a state rejects a citizen's identity, the consequences can be devastating to one's notion of selfhood as well as undermine their economic security. In Stealing (Identity) from the Poor, Sara Greene explores the - [Racial Bias in Algorithmic IP](https://minnesotalawreview.org/article/racial-bias-in-algorithmic-ip/) - By Dan L. Burk. Full Text. Machine learning systems, a form of artificial intelligence (AI), are increasingly being deployed both for the creation of innovative works and the administration of intellectual property (IP) rights associated with those works. At the same time, evidence of racial bias in IP systems is manifest and growing. Legal scholars - [Sprinting a Marathon: Next Steps for Gender Equity in Criminal Law Employment](https://minnesotalawreview.org/article/sprinting-a-marathon-next-steps-for-gender-equity-in-criminal-law-employment/) - By Maryam Ahranjani. Full Text. In an era when women’s hard-fought and hard-earned participation in the workforce is in peril, the ABA Criminal Justice Section’s Women in Criminal Justice Task Force (TF) continues its groundbreaking work of documenting challenges in hiring, retention, and promotion of women criminal lawyers. Sprinting a Marathon follows up on the - [Introduction to The Bremer-Kovacs Collection: Historic Documents Related to the Administrative Procedure Act of 1946 (HeinOnline 2021)](https://minnesotalawreview.org/article/introduction-to-the-bremer-kovacs-collection-historic-documents-related-to-the-administrative-procedure-act-of-1946-heinonline-2021/) - By Emily S. Bremer & Kathryn E. Kovacs. Full Text. Few statutes have a legislative history as rich, varied, and sprawling as the Administrative Procedure Act of 1946 (APA). In recent years, courts and scholars have shown increased interest in understanding this history. This is no mean feat. The APA’s history spans nearly two decades, - [Introduction to The Bremer-Kovacs Collection: Historic Documents Related to the Administrative Procedure Act of 1946 (HeinOnline 2021)](https://minnesotalawreview.org/article/introduction-to-the-bremer-kovacs-collection-historic-documents-related-to-the-administrative-procedure-act-of-1946-heinonline-2021-2/) - By Emily S. Bremer & Kathryn E. Kovacs. Full Text. Few statutes have a legislative history as rich, varied, and sprawling as the Administrative Procedure Act of 1946 (APA). In recent years, courts and scholars have shown increased interest in understanding this history. This is no mean feat. The APA’s history spans nearly two decades, lawreview - Minnesota Law Review - [Unconstitutional but Authorized: The Federal Tort Claims Act Should Not Immunize the United States When Federal Officers Violate the Constitution](https://minnesotalawreview.org/article/unconstitutional-but-authorized-the-federal-tort-claims-act-should-not-immunize-the-united-states-when-federal-officers-violate-the-constitution/) - By Daniel Raddenbach. Full Text. To protect its legitimacy, a democratic system like the United States must ensure that the government is at least as accountable for its bad acts as any private actor. Thus, if the government wrongs a citizen via an unconstitutional or tortious act, that citizen should be able to sue the - [CJEU Déjà Vu: Facilitating International Data Transfers and Avoiding Internet Balkanization in the Wake of Schrems II by Enacting Targeted Reforms to US Surveillance Practices](https://minnesotalawreview.org/article/cjeu-deja-vu-facilitating-international-data-transfers-and-avoiding-internet-balkanization-in-the-wake-of-schrems-ii-by-enacting-targeted-reforms-to-us-surveillance-practices/) - By Jordan Francis. Full Text. Private and public actors collect and retain vast amounts of personal data. Governments have responded to this data revolution by passing data protection laws, which limit the collection, use, storage, and disclosure of personal data. The most comprehensive data protection scheme exists in the European Union, where the right to - [Barring Entry to the Legal Profession: How the Law Condones Willful Blindness to the Bar Exam's Racially Disparate Impacts](https://minnesotalawreview.org/article/barring-entry-to-the-legal-profession-how-the-law-condones-willful-blindness-to-the-bar-exams-racially-disparate-impacts/) - By Eura Chang. Full Text. In 2020, only 14.1% of lawyers identified as BIPOC (Black, Indigenous, and People of Color), even though 40% of the United States population identified as such. Academics, activists, and attorneys point to a variety of reasons for this disproportion: underfunded public schools, astronomical student debt, standardized tests like the SAT - [Tax Without Cash](https://minnesotalawreview.org/article/tax-without-cash/) - By Jeremy Bearer-Friend. Full Text. This Article documents and evaluates tax obligations paid without cash, referred to as “in-kind tax paying.” Such forms of tax paying include paying federal income taxes by remitting a used flatbed truck to the IRS, paying local property taxes by working a few hours a month answering phones at city - [Boilerplate Collusion: Clause Aggregation, Antitrust Law, & Contract Governance](https://minnesotalawreview.org/article/boilerplate-collusion-clause-aggregation-antitrust-law-contract-governance/) - By Orly Lobel. Full Text. Contract clauses should be assessed in relation to each other when examining their meaning, validity, and enforcement. In contemporary markets, drafters create impenetrable bundles of clauses and sets of interrelated contracts operating together. This Article exposes the ways that a contract is larger than the sum of its separate clauses - [Discriminatory Permissions and Structural Injustice](https://minnesotalawreview.org/article/discriminatory-permissions-and-structural-injustice/) - By Lawrence G. Sager & Nelson Tebbe. Full Text. America is engaged in a nationwide conversation about conscience exemptions from equality laws. So far, that conflict has been debated in terms of religious liberty. Courts have asked whether religious actors like Hobby Lobby and Masterpiece Cakeshop are entitled to exemptions from civil rights laws and - [Secrecy's End](https://minnesotalawreview.org/article/secrecys-end/) - By Oona A. Hathaway. Full Text. The United States government runs a massive system of national security secrecy. In 2019, 4,243,937 Americans with security clearances produced tens of millions of newly classified documents. This Article examines this massive yet poorly understood system of secrecy, asking what it aims to achieve, whether it serves those ends, - [Transition Administration](https://minnesotalawreview.org/article/transition-administration/) - By Michael Herz & Katherine Shaw. Full Text. The period from November 3, 2020 to January 20, 2021, was unlike any presidential transition in our history. President Donald Trump refused to accept his ballot-box defeat, instead battling to overturn the election’s outcome. This dramatic public campaign was waged in state and federal courts, state legislatures, - [Walter Mondale and His Crusade for Public Accountability](https://minnesotalawreview.org/article/walter-mondale-and-his-crusade-for-public-accountability/) - By Lawrence R. Jacobs. Full Text. This volume of Minnesota Law Review is dedicated to the memory of the Honorable Walter F. Mondale, former Vice President of the United States of America. A 1956 graduate of the University of Minnesota Law School and an editor of Minnesota Law Review Volume 39, Mondale was the 42nd - [The APA and the Assault on Deference](https://minnesotalawreview.org/article/the-apa-and-the-assault-on-deference/) - By Ronald M. Levin. Full Text. Recently, in Kisor v. Wilkie, a concurring opinion by Justice Gorsuch argued at length that § 706 of the Administrative Procedure Act (APA) prohibits judicial deference to administrative interpretations of law. That section states that “the reviewing court shall decide all relevant questions of law.” This issue remained unresolved - [Remembrance of and Tribute to Walter F. Mondale](https://minnesotalawreview.org/article/remembrance-of-and-tribute-to-walter-f-mondale/) - By Garry W. Jenkins. Full Text. This volume of Minnesota Law Review is dedicated to the memory of the Honorable Walter F. Mondale, former Vice President of the United States of America. A 1956 graduate of the University of Minnesota Law School and an editor of Minnesota Law Review Volume 39, Mondale was the 42nd - [You Don’t Have a Home to Go to but You Can Stay Here: A Bill of Rights for Unhoused Minnesotans](https://minnesotalawreview.org/article/you-dont-have-a-home-to-go-to-but-you-can-stay-here-a-bill-of-rights-for-unhoused-minnesotans/) - By Daniel P. Suitor. Full Text. Unhoused people are constantly and consistently mistreated by our society. Cities criminalize basic, life-sustaining activities of people experiencing homelessness, such as sitting down in public or sleeping in parks. Law enforcement bodies are quick to harass them, and residents are happy to look the other way in the name - [Tax, Spend, and Prevent Discrimination: Why Title IX’s Passage Under the Spending Clause Holds the Answer to a Quarter-Century Long Circuit Split](https://minnesotalawreview.org/article/tax-spend-and-prevent-discrimination-why-title-ixs-passage-under-the-spending-clause-holds-the-answer-to-a-quarter-century-long-circuit-split/) - By Miriam Pysno Solomon. Full Text. Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972 both strive to reduce and eliminate discrimination on the basis of sex. While Title VII governs almost all employers in the United States, Title IX similarly governs almost all educational institutions. - [Copycat Cosmetics: The Beauty Industry and the Bounds of the American Intellectual Property System](https://minnesotalawreview.org/article/copycat-cosmetics-the-beauty-industry-and-the-bounds-of-the-american-intellectual-property-system/) - By Marra M. Clay. Full Text. The primary justification for intellectual property is simple: it exists to incentivize innovation. Creators, innovators, and inventors are motivated to create, innovate, and invent by the promise of exclusive rights to the fruits of their labor. The founding fathers believed these rights so important that they wrote them into - [Proving Discrimination by the Text](https://minnesotalawreview.org/article/proving-discrimination-by-the-text/) - By Deborah A. Widiss. Full Text. The Civil Rights Act of 1964 and other employment discrimination laws make the “simple but momentous” declaration that it is illegal to deny employment on the basis of race, sex, religion, or other key aspects of identity. But when employees who have been treated unfairly turn to the courts - [Judicial Populism](https://minnesotalawreview.org/article/judicial-populism/) - By Anya Bernstein & Glen Staszewski. Full Text. Populism has taken center stage in discussions of contemporary politics. This Article details a judicial populism that resonates with political populism’s tropes, mirrors its traits, and enables its practices. Like political populism, judicial populism insists there are clear, correct answers to complex, debatable problems, treating reasonable disagreement - [4°C](https://minnesotalawreview.org/article/4c/) - By J.B. Ruhl & Robin Kundis Craig. Full Text. Conventional climate change wisdom tells governments to plan for a 2°C increase in global average temperature. However, increasingly robust science indicates that the planet is well on its way to at least 4°C of warming, possibly by the end of the 21st century or shortly thereafter. - [Stealing (Identity) From the Poor](https://minnesotalawreview.org/article/stealing-identity-from-the-poor/) - By Sara S. Greene. Full Text. The law of data breaches is new, dynamic, and evolving. The number and complexity of breaches increases each year and legal scholars, courts, and policymakers scramble to respond. In 2019, 14.4 million consumers became victims of identity theft, the most problematic consequence of data breaches for consumers. Indeed, one-third - [The Law School as a White Space](https://minnesotalawreview.org/article/the-law-school-as-a-white-space/) - By Bennett Capers. Full Text. In this moment when the country is undergoing a racial reckoning, when law schools have pledged to look inward and become anti-racist and truly inclusive, it is past time to acknowledge how law schools function as “white spaces.” For starters, there are the numbers. There is a reason why just - [Civil Disobedience in the Face of Texas's Abortion Ban](https://minnesotalawreview.org/article/civil-disobedience-in-the-face-of-texass-abortion-ban/) - By Alexi Pfeffer-Gillett. Full Text. On September 1, 2021, the Supreme Court refused to block Texas Senate Bill 8 from going into effect, despite the bill overtly banning constitutionally protected access to abortions before fetal viability. The Court reasoned that because the statute only allowed for private plaintiffs—and not government officials—to bring civil lawsuits to - [Cybersecurity for Idiots](https://minnesotalawreview.org/article/cybersecurity-for-idiots/) - By Derek E. Bambauer. Full Text. Cybersecurity remains a critical issue facing regulators, particularly with the advent of the Internet of Things. General-purpose security regulators such as the Federal Trade Commission continually struggle with limited resources and information in their oversight. This Essay contends that a new approach to cybersecurity modeled on the negligence per - [The Federal Arbitration Act, Rules of Decision, and Congress' Exercise of Judicial Power](https://minnesotalawreview.org/article/the-federal-arbitration-act-rules-of-decision-and-congress-exercise-of-judicial-power/) - By Anthony J. Meyer. Full Text. Long before this Article’s germination, Professor David Schwartz quipped that the Federal Arbitration Act (FAA) “is unconstitutional . . . and no one has noticed.” The observation is both delightfully sardonic and—for a variety of reasons, including those expounded in this Article—true. Professor Schwartz asserts a brilliantly creative thesis - [Voigt Deference: Deferring to a State Agency's Interpretation of a Federal Regulation](https://minnesotalawreview.org/article/voigt-deference-deferring-to-a-state-agencys-interpretation-of-a-federal-regulation/) - By Justin W. Aimonetti. Full Text. A federal court will sometimes defer to a federal agency’s interpretation of a federal regulation. But conventional wisdom suggests that federal courts review with fresh eyes state agencies’ interpretations of the same. This Essay suggests a different approach—one called Voigt deference named after a recent Eighth Circuit decision—and one - [Everything's at Stake: Preserving Authority to Prevent Gun Violence in the Second Amendment's Third Chapter](https://minnesotalawreview.org/article/everythings-at-stake-preserving-authority-to-prevent-gun-violence-in-the-second-amendments-third-chapter/) - By Jonathan E. Lowy, Christa Nicols, & Kelly Sampson. Full Text. In New York State Rifle and Pistol Association (“NYSRPA”) v. Bruen, the U.S. Supreme Court will decide to what extent New York (or any state) can restrict carrying concealed handguns in public. “Gun rights” advocates seek to establish a sweeping interpretation of the Second Amendment, - [Extending Pandemic Flexibilities for Opioid Use Disorder Treatment: Authorities and Methods](https://minnesotalawreview.org/article/extending-pandemic-flexibilities-for-opioid-use-disorder-treatment-authorities-and-methods/) - By Bridget C.E. Dooling & Laura Stanley. Full Text. This Essay evaluates two specific flexibilities granted during the COVID-19 pandemic that made it easier for patients to access buprenorphine and methadone. First, the Drug Enforcement Administration (DEA) allowed practitioners to prescribe buprenorphine using telemedicine without first conducting an in-person medical exam. Second, the Substance Abuse - [Changing the Student Loan Dischargeability Framework: How the Department of Education Can Ease the Path for Borrowers in Bankruptcy](https://minnesotalawreview.org/article/changing-the-student-loan-dischargeability-framework-how-the-department-of-education-can-ease-the-path-for-borrowers-in-bankruptcy/) - By Pamela Foohey, Aaron S. Ament, & Daniel A. Zibel. Full Text. The United States’ consumer bankruptcy system supposedly gives “honest but unfortunate” individuals “a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt.” Access to bankruptcy’s discharge of debt is especially important in - [Searching for Law in All the Wrong Places](https://minnesotalawreview.org/article/searching-for-law-in-all-the-wrong-places/) - By Evan C. Zoldan. Full Text. In The Corpus and the Critics, Lee & Mouritsen reaffirm their commitment to interpreting legal language using corpus linguistics techniques. Importantly, they also acknowledge that it is not always appropriate to search for the meaning of statutory language in a general corpus—that is, a corpus that includes a variety - [Advancing Student Achievement Through Elementary and Secondary Education Act Waivers](https://minnesotalawreview.org/article/advancing-student-achievement-through-elementary-and-secondary-education-act-waivers/) - By Justin Lam. Full Text. The Elementary and Secondary Education Act of 1965 allows the Secretary of Education to waive most of its statutory or regulatory requirements. For the Secretary to do so, a state educational agency, local educational agency, or a tribe must request a waiver and show how a requested waiver would “advance - [Advancing Student Achievement Through Elementary and Secondary Education Act Waivers](https://minnesotalawreview.org/article/advancing-student-achievement-through-elementary-and-secondary-education-act-waivers-2/) - By Justin Lam. Full Text. The Elementary and Secondary Education Act of 1965 allows the Secretary of Education to waive most of its statutory or regulatory requirements. For the Secretary to do so, a state educational agency, local educational agency, or a tribe must request a waiver and show how a requested waiver would “advance lawreview - Minnesota Law Review - [The Banality of Law Journal Rejections](https://minnesotalawreview.org/article/the-banality-of-law-journal-rejections/) - By Noah C. Chauvin. Full Text. In the spring of 2021, I received two rejection messages from journals I had submitted an article to; the messages came seven minutes apart. Nothing about that experience was remarkable, except that the two messages (with the exception of the names of the journals) were identical. That prompted this - [This is Minnesota: An Analysis of Disparities in Black Student Enrollment at the University of Minnesota Law School and the Effects of Systemic Barriers to Black Representation in the Law](https://minnesotalawreview.org/article/this-is-minnesota-an-analysis-of-disparities-in-black-student-enrollment-at-the-university-of-minnesota-law-school-and-the-effects-of-systemic-barriers-to-black-representation-in-the-law/) - By: Maleah Riley-Brown, Samia Osman, Justice C. Shannon, Yemaya Hanna, Brandie Burris, Tony Sanchez, and Joshua Cottle. Full Text. Correction: Upon release, this Article stated in Table 2 that enrollment of students of color in the first-year class totaled 45 students, making up 21.32 percent of the first-year class. This number was in error; the lawreview - Minnesota Law Review - [Entrenched Racial Hierarchy: Educational Inequality from the Cradle to the LSAT](https://minnesotalawreview.org/article/entrenched-racial-hierarchy-educational-inequality-from-the-cradle-to-the-lsat/) - By Kevin Woodson. Full Text. For my contribution to this special issue of the Minnesota Law Review, I will attempt to situate the problem of black underrepresentation at America’s law schools within the broader context of racial hierarchy in American society. The former has generated an extensive body of legal scholarship and commentary, centering primarily - [The Seven (at least) Lessons of the Myon Burrell Case](https://minnesotalawreview.org/article/the-seven-at-least-lessons-of-the-myon-burrell-case/) - By Leslie E. Redmond & Mark Osler. Full Text. This Article closely examines the Myon Burrell case and how it features many of the most pressing issues in criminal justice. - [The Human Journey Toward Justice: Reflections in the Wake of the Murder of George Floyd from a Community of Practitioners](https://minnesotalawreview.org/article/the-human-journey-toward-justice-reflections-in-the-wake-of-the-murder-of-george-floyd-from-a-community-of-practitioners/) - By Dr. Raj Sethuraju et al. Full Text. Dr. Raj Sethuraju, Brent Lehman, Natasha Lapcinski, Taylor Saver, Kara Beckman, and Dr. Tamara Mattison are all restorative justice practitioners in the Twin Cities metro area. This Article examines the community impact following the killing of George Floyd. lawreview - Minnesota Law Review - [Educational Adequacy Challenges: The Impact on Minnesota Charter Schools](https://minnesotalawreview.org/article/educational-adequacy-challenges-the-impact-on-minnesota-charter-schools/) - By Wendy Baudoin. Full Text. This Article explores the challenges to the educational systems in Minnesota, analyzing the history of public education and segregation within the Midwest. - [Correction of Monumental Judicial Malpractice: The Case for Clearing Secessionist and Slaveholding Symbols of "Justice" from the Courthouse](https://minnesotalawreview.org/article/correction-of-monumental-judicial-malpractice-the-case-for-clearing-secessionist-and-slaveholding-symbols-of-justice-from-the-courthouse/) - By Michael J. Pastrick, Esq. Full Text. This Article illustrates the reasoning behind why historical figures who engaged in or supported slavery and segregation in the United States cannot symbolize justice today, and calls on courts to replace such antiquated figures to better symbolize equal justice for all. - [Reassessing the Judicial Empathy Debate: How Empathy Can Distort and Improve Criminal Sentencing](https://minnesotalawreview.org/article/reassessing-the-judicial-empathy-debate-how-empathy-can-distort-and-improve-criminal-sentencing/) - By Warren Cormack. Full Text. This Article examines the science of empathy, suggesting that attempts to remove it from the courtroom may have been counterproductive and that a more equitable society may require a thoughtful embrace of empathy in legal decision making. - [Refunding the Community: What Defunding MPD Means and Why It Is Urgent and Realistic](https://minnesotalawreview.org/article/refunding-the-community-what-defunding-mpd-means-and-why-it-is-urgent-and-realistic/) - By JLI Vol. 39 Editorial Board. Full Text. Minnesota Journal of Law and Inequality’s (JLI) editors trace the history of policing in the United States since its colonial days, outline the decades of failure to achieve meaningful progress in Minneapolis, and advocate for the redirection of MPD funding to violence prevention and alternative responses. - [The $2 Billion-Plus Price of Injustice: A Methodological Map for Police Reform in the George Floyd Era](https://minnesotalawreview.org/article/the-2-billion-plus-price-of-injustice-a-methodological-map-for-police-reform-in-the-george-floyd-era/) - By David Schultz. Full Text. Professor David Schultz conducts a methodological exploration of what it would take to reform the institution of policing in the United States. - [George Floyd's Legacy: Reforming, Relating, and Rethinking Through Chauvin's Conviction and Appeal Under a Felony-Murder Doctrine Long-Weaponized Against People of Color](https://minnesotalawreview.org/article/george-floyds-legacy-reforming-relating-and-rethinking-through-chauvins-conviction-and-appeal-under-a-felony-murder-doctrine-long-weaponized-against-people-of-color/) - By Greg Egan. Full Text. Ramsey County Public Defender Greg Egan takes an empirical look at second-degree felony murder convictions sentenced from 2012 through 2018 in Hennepin and Ramsey counties to detail the racial inequities in Minnesota’s felony-murder doctrine. - [Glass Ceilings, Glass Walls: Intersections in Legal Gender Equality and Voting Rights One Hundred Years After the Nineteenth Amendment](https://minnesotalawreview.org/article/glass-ceilings-glass-walls-intersections-in-legal-gender-equality-and-voting-rights-one-hundred-years-after-the-nineteenth-amendment/) - Symposium Foreword by Jessica Szuminski. Full Text. The Nineteenth Amendment was a milestone for women’s rights but has often been criticized for being passed at the expense of people of color. Though a significant milestone, the Nineteenth Amendment was certainly not an endpoint for equality for women and in voting rights. In the one hundred - [Voting is a Universal Language: Ensuring the Franchise for the Growing Language Minority Community in Minnesota](https://minnesotalawreview.org/article/voting-is-a-universal-language-ensuring-the-franchise-for-the-growing-language-minority-community-in-minnesota/) - By Terry Ao Minnis. Full Text. Minnesota has long held a reputation for being proactively pro-democratic and on the cutting edge of breaking down barriers to the ballot box and making voting more accessible. At the same time, no matter how well a state is doing, its election administration can always be improved. Addressing a - [Reclaiming the Long History of the “Irrelevant” Nineteenth Amendment for Gender Equality](https://minnesotalawreview.org/article/reclaiming-the-long-history-of-the-irrelevant-nineteenth-amendment-for-gender-equality/) - By Tracy Thomas. Full Text. The Nineteenth Amendment has been called an “irrelevant” amendment. The women’s suffrage amendment has been deemed insignificant as a constitutional authority, reduced to a historical footnote. In the Supreme Court canon, it has been diminished as a text that “merely gives the vote to women.” With the accomplishment of that - [The Nineteenth Amendment as a Generative Tool for Defeating LGBT Religious Exemptions](https://minnesotalawreview.org/article/the-nineteenth-amendment-as-a-generative-tool-for-defeating-lgbt-religious-exemptions/) - By Kyle C. Velte. Full Text. In the summer of 1920, women gained the right to be free from discrimination in voting when the Nineteenth Amendment was ratified. One hundred years later, in the summer of 2020, LGBT people gained the right to be free from discrimination in the workplace when the U.S. Supreme Court - [An Overlooked Dimension to OIRA Review of Tax Regulatory Actions](https://minnesotalawreview.org/article/an-overlooked-dimension-to-oira-review-of-tax-regulatory-actions/) - By Kristin E. Hickman. Full Text. In April 2018, the Treasury Department and the Office of Information and Regulatory Affairs (OIRA) signed a Memorandum of Agreement reversing an exemption and providing for the first time that significant tax regulatory actions would be subject to OIRA review under Executive Order 12866. The transition to the Biden - [The Rule of Reason as a Discovery Procedure: A Response to Ramsi Woodcock’s Hidden Rules of a Modern Antitrust](https://minnesotalawreview.org/article/the-rule-of-reason-as-a-discovery-procedure-a-response-to-ramsi-woodcocks-hidden-rules-of-a-modest-antitrust/) - By Geoffrey A. Manne. Full Text. In The Hidden Rules of a Modern Antitrust, Ramsi Woodcock argues that courts’ systematic use of the rule of reason, which underpins most of contemporary antitrust law, effectively amounts to an unwarranted blanket exemption from liability for potentially egregious practices. According to Woodcock, this is due to the interaction between - [Winning What's Owed: A Litigative Approach to Reparations](https://minnesotalawreview.org/article/winning-whats-owed-a-litigative-approach-to-reparations/) - By Daniel P. Suitor. Full Text. The continuing effects of slavery are still felt by millions of Black Americans today. A century-and-a-half after the formal end of their enslavement, Black people still suffer the deleterious effects of systemic racism in fundamental areas of their lives. The persistent disparities in health, economic, education, and carceral outcomes - [Disability Admin: The Invisible Costs of Being Disabled](https://minnesotalawreview.org/article/disability-admin-the-invisible-costs-of-being-disabled/) - By Elizabeth F. Emens. Full Text. Disability law has failed to account for a form of labor that especially burdens people with disabilities. That labor is the office-work of life, also called life admin. Disability spurs three main forms of life admin: medical admin, benefits admin, and discrimination admin. First, the managerial and secretarial labor lawreview - Minnesota Law Review - [Whose Data Anyway? The Inconsistent and Prejudicial Application of Ascertainability in Data Privacy Class Actions](https://minnesotalawreview.org/article/whose-data-anyway-the-inconsistent-and-prejudicial-application-of-ascertainability-in-data-privacy-class-actions/) - By Nathan Webster. Full Text. Data breaches are increasingly common. As the frequency of data breaches increases, so too does the frequency of data privacy class action suits. However, as plaintiffs overcome longstanding obstacles to class certification, new challenges are emerging. One issue poses a particular challenge for data privacy plaintiffs: the heightened ascertainability requirement. lawreview - Minnesota Law Review - [Using Community Benefits to Bridge the Divide Between Minnesota's Nonprofit Hospitals and Their Communities](https://minnesotalawreview.org/article/using-community-benefits-to-bridge-the-divide-between-minnesotas-nonprofit-hospitals-and-their-communities/) - By Meredith Gingold. Full Text. Nonprofit hospitals receive numerous state and federal tax exemptions. In return, communities expect that hospitals will give back what they can. This giving, called “community benefits,” can take many forms including money spent on educating a hospital’s doctors and residents, free or discounted care to low-income patients, and Medicaid shortfalls—the lawreview - Minnesota Law Review - [Somebody's Tracking Me: Applying Use Restrictions to Facial Recognition Tracking](https://minnesotalawreview.org/article/somebodys-tracking-me-applying-use-restrictions-to-facial-recognition-tracking/) - By Matthew E. Cavanaugh. Full Text. Facial recognition tracking is the use of facial recognition technology to track a person’s movements based on the appearance of their face at particular locations. It is one of many rapidly advancing technologies that are forcing a judicial reckoning with how the Fourth Amendment right against unreasonable searches applies lawreview - Minnesota Law Review - [Reengineering Financial Market Infrastructure](https://minnesotalawreview.org/article/reengineering-financial-market-infrastructure/) - By David A. Wishnick. Full Text. Scholars often portray financial regulators as eternal followers of the private sector, ever struggling to “keep pace” with technological change. But the image of the reactive, pace-keeping regulator obscures as much as it reveals. This Article challenges the conventional depiction by highlighting regulatory efforts to reengineer the infrastructure of lawreview - Minnesota Law Review - [Subverting Title IX](https://minnesotalawreview.org/article/subverting-title-ix/) - By Emily Suski. Full Text. Thousands of sexual assaults happen to children in K–12 public schools each year, but the federal courts regularly allow the schools to do almost nothing in response. Title IX exists to ensure that public schools protect students from sexual assaults, harassment, and other forms of sex discrimination. Yet, the federal lawreview - Minnesota Law Review - [Equalizing Parental Leave](https://minnesotalawreview.org/article/equalizing-parental-leave/) - By Deborah A. Widiss. Full Text. The United States is the only developed country that fails to guarantee paid time off work to new parents. As a result, many new parents, particularly low-wage workers, are forced to go back to work within days or weeks of a birth or adoption. In recent years, a growing lawreview - Minnesota Law Review - [The Hidden Rules of a Modest Antitrust](https://minnesotalawreview.org/article/the-hidden-rules-of-a-modest-antitrust/) - By Ramsi A. Woodcock. Full Text. Reforming antitrust’s rule of reason by shifting burdens of proof to defendants will not solve antitrust’s enforcement drought. For the drought is due in part to the cost to enforcers of identifying rule of reason cases to bring and not just to the cost of winning the cases that lawreview - Minnesota Law Review - [States, the Final Frontier: How Minnesota's State Constitution Can Serve as New Ammunition in the Fight Against Prison Gerrymandering](https://minnesotalawreview.org/article/states-the-final-frontier-how-minnesotas-state-constitution-can-serve-as-new-ammunition-in-the-fight-against-prison-gerrymandering/) - By Meredith Gingold. Full Text. “Prison gerrymandering” is the term for the United States Census Bureau’s practice of counting incarcerated individuals toward the population of the district where they are incarcerated, not the district where they resided before incarceration. Prison gerrymandering systematically transfers population and political power from urban districts to rural districts, as the lawreview - Minnesota Law Review - [In trust, data](https://minnesotalawreview.org/article/in-trust-data/) - By Keith Porcaro. Full Text. This Essay explores how the trust, and specifically the asset management functions that trust law affords, can be used to ameliorate select digital governance challenges. A trust’s ability to isolate assets can protect public interest technology projects against organizational failure, facilitate archiving and study of proprietary and deprecated software, and lawreview - Minnesota Law Review - [The Influence of Alice: A Response to Jay P. Kesan & Runhua Wang's Eligible Subject Matter at the Patent Office: An Empirical Study of the Influence of Alice on Patent Examiners and Patent Applicants](https://minnesotalawreview.org/article/the-influence-of-alice-a-response-to-jay-p-kesan-runhua-wangs-eligible-subject-matter-at-the-patent-office-an-empirical-study-of-the-influence-of-alice-on-patent-examiners-and-patent-applicants/) - By Daryl Lim. Full Text. The Supreme Court’s decision in Alice Corp. v. CLS Bank has had a decimating influence on patents and patent applications. Its long shadow looms over every stage of a patent’s life cycle—from prosecution to litigation and the administrative post-grant process at the patent office. In their article, Professor Jay Kesan lawreview - Minnesota Law Review - [Suing the Aiders and Abettors of Torture: Reviving the Torture Victim Protection Act](https://minnesotalawreview.org/article/suing-the-aiders-and-abettors-of-torture-reviving-the-torture-victim-protection-act/) - By Ryan Plasencia. Full Text. While universally condemned by the international community, state-sponsored torture and extrajudicial killing are still pervasive practices around the globe. This Note examines a specific form of state-sponsored torture and killing—those acts that are facilitated or aided by multinational corporations with profit motives. In 1992, the United States enacted the Torture lawreview - Minnesota Law Review - [Embedded Deception: How the FTC’s Recent Interpretation of the Children’s Online Privacy Protection Act Missed the Mark](https://minnesotalawreview.org/article/embedded-deception-how-the-ftcs-recent-interpretation-of-the-childrens-online-privacy-protection-act-missed-the-mark/) - By Olivia Levinson. Full Text. Every year, YouTube amasses billions of dollars in online advertising revenue. While many advertisements play before, in between, and after YouTube videos, there are often more elusive advertisements within the videos themselves. Embedded advertisements within videos pose unique consumer protection concerns, especially as they pertain to young audiences. Ryan’s World, lawreview - Minnesota Law Review - [Utility-Expanding Fair Use](https://minnesotalawreview.org/article/utility-expanding-fair-use/) - By Jacob Victor. Full Text. Copyright’s fair use doctrine is increasingly applied to large-scale uses of creative works by new digital technologies, such as the Google Books Project. Such technologies—which the Second Circuit has recently come to call “utility-expanding”—allow the public to more productively use or efficiently access books, articles, music, films, and other copyrighted lawreview - Minnesota Law Review - [On Sacred Land](https://minnesotalawreview.org/article/on-sacred-land/) - By Khaled A. Beydoun. Full Text. From 2010 through the present, land-use discrimination against Muslims marked a prolific uptick—sixty percent greater than that of the post-9/11 period. Most startlingly, only twenty percent of Muslim land use disputes were resolved without a federal suit, compared to eighty-four percent of suits involving a non-Muslim claimant. This highlights lawreview - Minnesota Law Review - [Catalyzing Privacy Law](https://minnesotalawreview.org/article/catalyzing-privacy-law/) - By Anupam Chander, Margot E. Kaminski, and William McGeveran. Full Text. The United States famously lacks a comprehensive federal data privacy law. In the past year, however, over half the states have considered broad privacy bills or have established task forces to propose possible privacy legislation. Meanwhile, congressional committees are holding hearings on multiple privacy lawreview - Minnesota Law Review - [Law Enforcement's Lochner](https://minnesotalawreview.org/article/law-enforcements-lochner/) - By Miriam H. Baer. Full Text. Long-established rules of constitutional criminal procedure empower the government to cheaply and efficiently demand information from businesses and corporations, even when those entities are themselves criminal and regulatory targets. These rules have become extremely valuable to government investigators, notwithstanding their contestable premises and wide-ranging effects on the people who lawreview - Minnesota Law Review - [Standing Up to the Treasury: Applying the Procedural Standing Analysis to Post-Mayo, Pre-Enforcement APA Treasury Challenges](https://minnesotalawreview.org/article/standing-up-to-the-treasury-applying-the-procedural-standing-analysis-to-post-mayo-pre-enforcement-apa-treasury-challenges/) - By Casey N. Epstein. Full Text. Administrative law and tax law have clashed for the past several decades. While recent caselaw, starting with Mayo Foundation in 2010, has indicated that administrative law, such as the Administrative Procedure Act (APA), does apply to the Treasury, many questions remain unanswered. Much attention has recently focused on the lawreview - Minnesota Law Review - [Distributional Arguments, in Reverse](https://minnesotalawreview.org/article/distributional-arguments-in-reverse/) - By Alex Raskolnikov. Full Text. What should the government do about the distribution of resources and outcomes in society? Two arguments have shaped academic debates about this question for several decades. The first argument states that economic regulation should focus on efficiency alone, leaving distributional considerations for the tax-and-transfer system. The second argument objects to lawreview - Minnesota Law Review - [Completing the Quantum of Evidence: A Response to Daniel Capra and Liesa Richter's Evidentiary Irony and the Incomplete Rule of Completeness](https://minnesotalawreview.org/article/completing-the-quantum-of-evidence-a-response-to-daniel-capra-and-liesa-richters-evidentiary-irony-and-the-incomplete-rule-of-completeness/) - By Edward K. Cheng & Brooke Bowerman. Full Text. In Evidentiary Irony and the Incomplete Rule of Completeness, Daniel Capra and Liesa Richter propose an amendment to Federal Rule of Evidence 106, the “rule of completeness,” that formally recognizes the Rule’s trumping power over objections to hearsay. In this Response, we suggest a conceptual framework lawreview - Minnesota Law Review - [AI Patents and the Self-Assembling Machine](https://minnesotalawreview.org/article/ai-patents-and-the-self-assembling-machine/) - By Dan L. Burk. Full Text. Legal scholarship has begun to consider the implications of algorithmic pattern recognition systems, colloquially dubbed “artificial intelligence” or “AI,” for intellectual property law. This emerging literature includes several analyses that breathlessly proclaim the imminent overthrow of intellectual property systems as we now know them. Indeed, some commentators have lawreview - Minnesota Law Review - [This is Minnesota: An Analysis of Disparities in Black Student Enrollment at the University of Minnesota Law School and the Effects of Systemic Barriers to Black Representation in the Law](https://minnesotalawreview.org/article/this-is-minnesota-an-analysis-of-disparities-in-black-student-enrollment-at-the-university-of-minnesota-law-school-and-the-effects-of-systemic-barriers-to-black-representation-in-the-law-2/) - By: Maleah Riley-Brown, Samia Osman, Justice C. Shannon, Yemaya Hanna, Brandie Burris, Tony Sanchez, and Joshua Cottle. Full Text. Correction: Upon release, this Article stated in Table 2 that enrollment of students of color in the first-year class totaled 45 students, making up 21.32 percent of the first-year class. This number was in error; the lawreview - Minnesota Law Review - [Reproducing Race in an Era of Reckoning](https://minnesotalawreview.org/article/reproducing-race-in-an-era-of-reckoning/) - By Dov Fox. Full Text. What place should racial preferences have when people make a family? People might have all sorts of reasons for caring about race in their search for a romantic partner, sperm or egg donor, or child to foster or adopt. Maybe they think such resemblance will make it easier for them lawreview - Minnesota Law Review - [Moving Beyond Reflexive Chevron Deference: A Way Forward for Asylum Seekers Basing Claims on Membership in a Particular Social Group](https://minnesotalawreview.org/article/moving-beyond-reflexive-chevron-deference-a-way-forward-for-asylum-seekers-basing-claims-on-membership-in-a-particular-social-group/) - By Seiko Shastri. Full Text. Asylum applicants face a mounting number of barriers to being granted refuge in the United States. This is especially true for individuals applying for asylum based on their membership in a “particular social group,” one of the few protected grounds for asylum. In recent years, the Board of Immigration Appeals lawreview - Minnesota Law Review - [LIBOR: The World’s Most Important Headache](https://minnesotalawreview.org/article/libor-the-worlds-most-important-headache/) - By Alec Foote Mitchell. Full Text. The London Inter-Bank Offered Rate, or LIBOR, is known as “the world’s most important number.” Referenced in almost $350 trillion of financial contracts, LIBOR is central to modern finance. But in 2023, it is vanishing. As central banks, governments, financial institutions, and private parties rush to find replacement rates, lawreview - Minnesota Law Review - [How a New Standard of Care Can Make Social Media Companies Better “Good Samaritans”](https://minnesotalawreview.org/article/how-a-new-standard-of-care-can-make-social-media-companies-better-good-samaritans/) - By Jenna Hensel. Full Text. Social media companies enjoy a broad scope of protection from liability due to Section 230 of the Communications Decency Act. Section 230 of the Communications Decency Act offers social media companies two prominent protections: (1) protection from liability for user content posted on their websites because social media companies “cannot lawreview - Minnesota Law Review - [Imagining the Progressive Prosecutor](https://minnesotalawreview.org/article/imagining-the-progressive-prosecutor/) - By Benjamin Levin. Full Text. As criminal justice reform has attracted greater public support, a new brand of district attorney candidate has arrived: the “progressive prosecutor.” Commentators increasingly have keyed on “progressive prosecutors” as offering a promising avenue for structural change, deserving of significant political capital and academic attention. This Essay asks an unanswered threshold lawreview - Minnesota Law Review - [Random Selection for Scaling Standards](https://minnesotalawreview.org/article/random-selection-for-scaling-standards/) - By Michael Abramowicz. Full Text. Governments distributing funds among many claimants often fail to ensure that those similarly situated are treated similarly. This Article proposes a novel solution that would reduce both adjudication costs and adverse effects of idiosyncratic decisionmaking. Claimants to a fund would sell their claims to intermediaries, and a small number of lawreview - Minnesota Law Review - [Presidential Law](https://minnesotalawreview.org/article/presidential-law/) - By Shalev Roisman. Full Text. We know a great deal about how agencies exercise power. They use notice-and-comment procedures to create rules and trial-like adjudication when applying law to individuals. This is the field of administrative law. But what of the President? Like agencies, the President issues law-like rules, adjudicates whether individuals have violated applicable lawreview - Minnesota Law Review - [The Paradox of Exclusive State-Court Jurisdiction Over Federal Claims](https://minnesotalawreview.org/article/the-paradox-of-exclusive-state-court-jurisdiction-over-federal-claims/) - By Thomas B. Bennett. Full Text. Standing doctrine is supposed to ensure the separation of powers and an adversary process of adjudication. But recently, it has begun serving a new and unintended purpose: transferring federal claims from federal to state court. Paradoxically, current standing doctrine assigns a growing class of federal claims to the exclusive lawreview - Minnesota Law Review - [The Paradox of Exclusive State-Court Jurisdiction Over Federal Claims](https://minnesotalawreview.org/article/the-paradox-of-exclusive-state-court-jurisdiction-over-federal-claims-2/) - By Thomas B. Bennett. Full Text. Standing doctrine is supposed to ensure the separation of powers and an adversary process of adjudication. But recently, it has begun serving a new and unintended purpose: transferring federal claims from federal to state court. Paradoxically, current standing doctrine assigns a growing class of federal claims to the exclusive lawreview - Minnesota Law Review - [Facial Recognition and the Fourth Amendment](https://minnesotalawreview.org/article/facial-recognition-and-the-fourth-amendment/) - By Andrew Guthrie Ferguson. Full Text. Facial recognition offers a totalizing new surveillance power. Police now have the capability to monitor, track, and identify faces through networked surveillance cameras and datasets of billions of images. Whether identifying a particular suspect from a still photo or identifying every person who walks past a digital camera, the lawreview - Minnesota Law Review - [Siting Natural Gas Pipelines Post-PennEast: The New Power of State-Held Conservation Easements](https://minnesotalawreview.org/article/siting-natural-gas-pipelines-post-penneast-the-new-power-of-state-held-conservation-easements/) - By Zach Wright. Full Text. The Natural Gas Act (NGA) governs the siting of interstate natural gas pipelines. There is not a federal body that sites pipelines—instead, the NGA delegates federal eminent domain to private actors to site pipelines through a certificate of need. Private actors have condemned private and state land to site pipelines lawreview - Minnesota Law Review - [The Critical Need for State Regulation of Assisted Living Facilities: Defining “Critical Incidents,” Implementing Staff Training, and Requiring Disclosure of Facility Data](https://minnesotalawreview.org/article/the-critical-need-for-state-regulation-of-assisted-living-facilities-defining-critical-incidents-implementing-staff-training-and-requiring-disclosure-of-facility-data/) - By Lexi Pitz. Full Text. Assisted living facilities are wildly popular among elderly Americans. This trend is expected to persist due to increasing life expectancy, an aging baby boomer population, and the growing preference for assisted living facilities over nursing homes. Despite their growing popularity, the assisted living industry remains alarmingly underregulated at both the lawreview - Minnesota Law Review - [Standing Up to Bad Patents: Allowing Non-Infringing Direct Competitors to Satisfy the Article III Standing Requirements Appealing an Adverse Inter Partes Review Decision to the Federal Circuit](https://minnesotalawreview.org/article/standing-up-to-bad-patents-allowing-non-infringing-direct-competitors-to-satisfy-the-article-iii-standing-requirements-appealing-an-adverse-inter-partes-review-decision-to-the-federal-circuit/) - By Ryan Fitzgerald. Full Text. In 2011, through the America Invents Act, Congress created a new administrative procedure, inter partes review (IPR), to allow third parties to challenge issued patents before the Patent Trial and Appeal Board (PTAB). It did so in recognition “that questionable patents [were] too easily obtained and [were] too difficult to lawreview - Minnesota Law Review - [Evidentiary Irony and the Incomplete Rule of Completeness: A Proposal to Amend Federal Rule of Evidence 106](https://minnesotalawreview.org/article/evidentiary-irony-and-the-incomplete-rule-of-completeness-a-proposal-to-amend-federal-rule-of-evidence-106/) - By Daniel J. Capra and Liesa L. Richter. Full Text. In recent years, there have been many calls and suggestions for a more equitable criminal justice system. Although sometimes overlooked in that dialogue, the fair operation of the Federal Rules of Evidence is a crucial component in ensuring such an equitable system. Unfortunately, the interpretation lawreview - Minnesota Law Review - [The New Law of Gender Nonconformity](https://minnesotalawreview.org/article/the-new-law-of-gender-nonconformity/) - By Naomi Schoenbaum. Full Text. A central tenet of sex discrimination law is the protection of gender nonconformity: unless a feature of biological sex requires it, regulated entities may not expect that individuals will conform their gender performance to the stereotypes of their sex. This doctrine is critical to promoting the anti-stereotyping aims of sex lawreview - Minnesota Law Review - [Ways of Price Making and the Challenge of Market Governance in U.S. Energy Law](https://minnesotalawreview.org/article/ways-of-price-making-and-the-challenge-of-market-governance-in-u-s-energy-law/) - By William Boyd. Full Text. Price formation has emerged as one of the most complex and contested areas of U.S. energy law. In the natural gas markets, questions about the integrity of price indices, which serve as key benchmarks for billions of dollars in transactions and investments across the industry, have been the subject of lawreview - Minnesota Law Review - [Rethinking the Conflicts Revolution in Personal Jurisdiction](https://minnesotalawreview.org/article/rethinking-the-conflicts-revolution-in-personal-jurisdiction/) - By Jesse M. Cross. Full Text. It is widely acknowledged that, from roughly 1940 to 1970, a revolution occurred in Conflicts of Law. Referred to as the “Conflicts revolution,” this movement remade nearly every legal test in the field. According to conventional wisdom, this revolution rejected the same idea in each instance: namely, that Conflicts lawreview - Minnesota Law Review - [The Arbitration Rules: Procedural Rulemaking by Arbitration Providers](https://minnesotalawreview.org/article/the-arbitration-rules-procedural-rulemaking-by-arbitration-providers/) - By David Horton. Full Text. The field of civil procedure revolves around the Federal Rules. However, there is an alternative procedural universe. The Supreme Court’s relentless expansion of the Federal Arbitration Act funnels tens of thousands of disputes every year to arbitration administrators such as the American Arbitration Association and JAMS. These entities have created lawreview - Minnesota Law Review - [Eligible Subject Matter at the Patent Office: An Empirical Study of the Influence of Alice on Patent Examiners and Patent Applicants](https://minnesotalawreview.org/article/eligible-subject-matter-at-the-patent-office-an-empirical-study-of-the-influence-of-alice-on-patent-examiners-and-patent-applicants/) - By Jay P. Kesan and Runhua Wang. Full Text. The U.S. Supreme Court’s decision regarding patent-eligible subject matter in Alice Corp. v. CLS Bank has been in effect for more than five years, and it has made a significant impact on inventions involving software, information technology, and the life sciences. There is significant scholarly debate lawreview - Minnesota Law Review - [Reconciling Ideals: Restorative Justice as an Alternative to Sentencing Enhancements for Hate Crimes](https://minnesotalawreview.org/article/reconciling-ideals-restorative-justice-as-an-alternative-to-sentencing-enhancements-for-hate-crimes/) - By Olivia Levinson. Full Text. The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 (“the Act”) was seen as a significant step forward in legal protections for LGBTQ+ people and racial minorities. It expanded the federal definition of hate crimes to include gender, disability, gender identity, and sexual orientation, and made lawreview - Minnesota Law Review - [Rethinking Contemporary Counter-Piracy Policy](https://minnesotalawreview.org/article/rethinking-contemporary-counter-piracy-policy/) - By Hugh Fleming. Full Text. Traditional piracy often evokes the image of swashbuckling sailors, independent from the rest of society and roaming the seas to seek their fortune. The image has been heavily romanticized by Hollywood and other sources of popular folklore, much like the cowboys in the western United States. In reality, modern piracy lawreview - Minnesota Law Review - [Behind the Binary Bars: A Critique of Prison Placement Policies for Transgender, Non-Binary, and Gender Non-Conforming Prisoners](https://minnesotalawreview.org/article/behind-the-binary-bars-a-critique-of-prison-placement-policies-for-transgender-non-binary-and-gender-non-conforming-prisoners/) - By Jessica Szuminski. Full Text. To help us more easily understand the world, society relies on binary concepts to create a sense of order: left or right, up or down, this or that. But when relying on binary concepts, the other available options often are neglected: not left or right, but forward; not up or lawreview - Minnesota Law Review - [Minnesota’s Digital Divide: How Minnesota Can Replicate the Rural Electrification Act to Deliver Rural Broadband](https://minnesotalawreview.org/article/minnesotas-digital-divide-how-minnesota-can-replicate-the-rural-electrification-act-to-deliver-rural-broadband/) - By Abby Oakland. Full Text. For disadvantaged communities, education can be the silver bullet. It can equip and empower students to rise above their economic station. It can level the playing field. It can provide opportunity absent in their current circumstances. It can open doors that would otherwise remain closed. Recognizing this power, Minnesota’s Constitution lawreview - Minnesota Law Review - [The Advent of Effortless Expression: An Examination of the Copyrightability of BCI-Encoded Brain Signals](https://minnesotalawreview.org/article/the-advent-of-effortless-expression-an-examination-of-the-copyrightability-of-bci-encoded-brain-signals/) - By Jonathan Baker. Full Text. This Note anticipates the development and deployment of brain-computer interfaces (BCIs) and attempts to reconcile this technology’s implications with modern U.S. copyright doctrine. Although researchers and practitioners have primarily used BCIs to restore motor function to and improve the quality of life for people severely disabled by neuromuscular impairments, the lawreview - Minnesota Law Review - [Transactional Scripts in Contract Stacks](https://minnesotalawreview.org/article/transactional-scripts-in-contract-stacks/) - By Shaanan Cohney and David A. Hoffman. Full Text. In conventional transactions, written contracts usually memorialize the terms of the commercial exchange. For deals in which some of the goods being transferred and the forum for the trade are digitized—as in the case of cryptocurrencies—parties may use computer code rather than a written contract to lawreview - Minnesota Law Review - [Core Criminal Procedure](https://minnesotalawreview.org/article/core-criminal-procedure/) - By Steven Arrigg Koh. Full Text. Constitutional criminal procedural rights are familiar to contemporary criminal law scholars and practitioners alike. But today, U.S. criminal justice may diverge substantially from its centuries-old framework when all three branches recognize only a core set of inviolable rights, implicitly or explicitly discarding others. This criminal procedural line drawing takes lawreview - Minnesota Law Review - [Parental Autonomy over Prenatal End-of-Life Decisions](https://minnesotalawreview.org/article/parental-autonomy-over-prenatal-end-of-life-decisions/) - By Greer Donley. Full Text. When parents learn that their potential child has a life-limiting, often devastating, prenatal diagnosis, they are faced with the first (and perhaps, only) healthcare decisions they will make for their child. Many choose to terminate the pregnancy because they believe it is in their potential child’s best interest to avoid lawreview - Minnesota Law Review - [No Privilege to Pollute: Expanding the Crime-Fraud Exception to the Attorney-Client Privilege](https://minnesotalawreview.org/article/no-privilege-to-pollute-expanding-the-crime-fraud-exception-to-the-attorney-client-privilege/) - By Tom Lininger. Full Text. This Article argues that a venerable rule of evidence—the attorney-client privilege—is due for reform. In particular, I propose the expansion of the crime-fraud exception to the attorney-client privilege. The exception presently only applies to crimes and civil frauds. I argue that the exception should extend to certain violations of civil lawreview - Minnesota Law Review - [Restoring ALJ Independence](https://minnesotalawreview.org/article/restoring-alj-independence/) - By Richard E. Levy and Robert L. Glicksman. Full Text. Institutional structures that protect the impartiality of federal agency adjudicators and insulate them from undue political pressure are essential to the constitutional legitimacy of agency adjudication. Those structures are crumbling, leaving the administrative law judges (ALJs) who conduct formal adjudications for the federal government increasingly lawreview - Minnesota Law Review - [Fun with Reverse Ejusdem Generis](https://minnesotalawreview.org/article/fun-with-reverse-ejusdem-generis/) - By Jay Wexler. Full Text. In the canon of statutory construction canons, perhaps no canon is more canonical than the canon known as ejusdem generis. This canon, which translates as “of the same kind,” states that when a statute includes a list of terms and a catch-all phrase, the set of items covered by the lawreview - Minnesota Law Review - [How the COVID-19 Pandemic Has and Should Reshape the American Safety Net](https://minnesotalawreview.org/article/how-the-covid-19-pandemic-has-and-should-reshape-the-american-safety-net/) - By Andrew Hammond, Ariel Jurow Kleiman, and Gabriel Scheffler. Full Text. The COVID-19 pandemic has delivered an unprecedented shock to the United States and the world. It is unclear precisely how long this crisis, which is both epidemiological and economic, will last, and it is difficult to gauge the extent and direction of the changes lawreview - Minnesota Law Review - [Case-Linked Jurisdiction and Busybody States](https://minnesotalawreview.org/article/case-linked-jurisdiction-and-busybody-states/) - By Howard M. Erichson, John C.P. Goldberg, and Benjamin C. Zipursky. Full Text. Abstract: Beginning with Justice Ginsburg’s 2011 opinion in the Goodyear case—and echoed in Justice Thomas’s 2014 opinion in Walden v. Fiore and Justice Alito’s 2017 opinion in Bristol-Myers Squibb v. Superior Court—the Supreme Court has suggested that the distinctiveness of specific personal lawreview - Minnesota Law Review - [Navigating College Athlete Endorsements Around School Sponsorships](https://minnesotalawreview.org/article/navigating-college-athlete-endorsements-around-school-sponsorships/) - By Campbell Sode. Full Text. Colleges generally resist formal employment relationships with their athletes. But pending NCAA rules that will allow college athletes to solicit third-party endorsements are a game-changer. College athletic departments have lucrative partnerships with companies like Nike. These school sponsors derive significant intrinsic value from the fact that millions of fans will lawreview - Minnesota Law Review - [Legal Writing's Harmful Psyche](https://minnesotalawreview.org/article/legal-writings-harmful-psyche/) - By Kevin Bennardo. Full Text. This essay argues that many in the legal writing discipline view themselves in a way that is harmful to the discipline's success. First, the essay establishes that many legal writing professors view themselves as victims of oppression within the legal academy. Second, it relies on social psychology research to demonstrate lawreview - Minnesota Law Review - [Reconstruction in Legal Theory](https://minnesotalawreview.org/article/reconstruction-in-legal-theory/) - By George Rutherglen. Full Text. This essay examines the well-known difficulties encountered by legal theorists in offering a justification for Brown v. Board of Education in the immediate aftermath of the decision. It locates these difficulties in the inadequacy of legal theory at the time, which had taken a turn away from normative principles towards lawreview - Minnesota Law Review - [Nonessential Businesses and Liability Waivers in the Time of COVID-19](https://minnesotalawreview.org/article/nonessential-businesses-and-liability-waivers-in-the-time-of-covid-19/) - By Zahra Takhshid. Full Text. Abstract: States are gradually reopening after months of lockdown. However, the risk of exposure to the deadly COVID-19 virus still remains. While states would like to have the economy up and running, the price that small businesses may be forced to pay following possible coronavirus personal injury lawsuits may drive lawreview - Minnesota Law Review - [Bostock, LGBT Discrimination, and the Subtractive Moves](https://minnesotalawreview.org/article/bostock-lgbt-discrimination-and-the-subtractive-moves/) - By Andrew Koppelman. Full Text. Abstract: In Bostock v. Clayton County, the Supreme Court held that Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment, covers discrimination on the basis of sexual orientation and gender identity. The dissenting Justices, following the reasoning of several Court of Appeals judges, embraced lawreview - Minnesota Law Review - [Frank Zimring Responds](https://minnesotalawreview.org/article/frank-zimring-responds/) - By Franklin Zimring. Full Text. This short Essay is a summary of my reply to the presentations at the Minnesota Law Review’s symposium in November of 2019 in Minneapolis, titled “Mass Incarceration as a Chronic Condition: Diagnosis, Prognosis, and Treatment.” I outline the four principal sections of my forthcoming book’s analysis and then discuss and lawreview - Minnesota Law Review - [Can Sentencing Guidelines Commissions Help States Substantially Reduce Mass Incarceration?](https://minnesotalawreview.org/article/can-sentencing-guidelines-commissions-help-states-substantially-reduce-mass-incarceration/) - By Richard S. Frase. Full Text. In his forthcoming book, The Insidious Momentum of Mass Incarceration, Franklin Zimring argues that sentencing guidelines commissions, of the kind that exist in Minnesota and several other states, could help states roll back the massive increases in prison populations that began in the mid-1970s. Professor Zimring proposes to achieve lawreview - Minnesota Law Review - [Prison-Release Reform and American Decarceration](https://minnesotalawreview.org/article/prison-release-reform-and-american-decarceration/) - By Kevin Reitz. Full Text. Parole boards and other officials with prison-release discretion have enormous statutory power over the size of prison populations in their jurisdictions. In discussions of American mass incarceration and potential decarceration strategies for the future, however, these officials are rarely mentioned. Indeed, little is known about how they do their work lawreview - Minnesota Law Review - [The Categorical Imperative as a Decarceral Agenda](https://minnesotalawreview.org/article/the-categorical-imperative-as-a-decarceral-agenda/) - By Jessica M. Eaglin. Full Text. Despite recent modest reductions in state prison populations, Franklin Zimring argues in his forthcoming book that mass incarceration remains persistent and intractable. As a path forward, Zimring urges states to adopt pragmatic, structural reforms that incentivize the reduction of prison populations through a “categorical imperative,” meaning, by identifying subcategories lawreview - Minnesota Law Review - [Zimring on Mass Incarceration: Empirical Pessimism and Cautious Reformist Optimism](https://minnesotalawreview.org/article/zimring-on-mass-incarceration-empirical-pessimism-and-cautious-reformist-optimism/) - By Robert Weisberg. Full Text. This Article places Professor Zimring’s treatment of the boom in imprisonment that led to mass incarceration in the wider context of his decades-long contemplation of our ability to understated changes in crime and punishment. His earlier studies of the great crime decline that began in the 1990s provides a revealing, lawreview - Minnesota Law Review - [Prisoners of Politics: Breaking the Cycle of Mass Incarceration](https://minnesotalawreview.org/article/prisoners-of-politics-breaking-the-cycle-of-mass-incarceration/) - By Rachel E. Barkow. Full text. lawreview - Minnesota Law Review - [Dealing with Mass Incarceration](https://minnesotalawreview.org/article/dealing-with-mass-incarceration/) - By Alfred Blumstein. Full Text. In today’s highly polarized political environment, one of the few issues which garners widespread agreement is the desire to reduce prison populations. Thus, it is rather disconcerting to see the recent stability of the incarceration rate since 2000. This raises the concern that this could be a reflection of a lawreview - Minnesota Law Review - [Why the Policy Failures of Mass Incarceration Are Really Political Failures](https://minnesotalawreview.org/article/why-the-policy-failures-of-mass-incarceration-are-really-political-failures/) - By John F. Pfaff. Full Text. In his forthcoming book, The Insidious Momentum of Mass Incarceration, Franklin Zimring argues that the most effective way to end mass incarceration is to target the policy failures that drive it. He focuses in particular on the “prosecutorial free lunch”: prosecutors are county-funded officials who can send as many lawreview - Minnesota Law Review - [“Wreaking Extraordinary Destruction”: Defendant’s Irreplaceability as Presumptively Reasonable Grounds for Downward Departure in Sentencing](https://minnesotalawreview.org/article/wreaking-extraordinary-destruction-defendants-irreplaceability-as-presumptively-reasonable-grounds-for-downward-departure-in-sentencing/) - By Jackie Fielding. Full Text Despite the media attention afforded to the recent family separation crisis at the southern border of the United States, there is a much more prevalent and common form of family separation: parental incarceration. The United States is the largest incarcerator worldwide, and the surge in the incarceration of women has lawreview - Minnesota Law Review - [Contracting Our Way to Inequality: Race, Reproductive Freedom, and the Quest for the Perfect Child](https://minnesotalawreview.org/article/contracting-our-way-to-inequality-race-reproductive-freedom-and-the-quest-for-the-perfect-child/) - By Camille Gear Rich. Full Text. This Article asks a fundamental question: Why does a society ostensibly committed to racial equality allow players in the assisted reproductive technology (ART) market to buy and sell race? As consumers in the ART market well know, human gametes (both eggs and sperm) are packaged, marketed, and sometimes priced lawreview - Minnesota Law Review - [Soft Law as Governing Law](https://minnesotalawreview.org/article/soft-law-as-governing-law/) - By Steven L. Schwarcz. Full Text. International business transactions increasingly are being conducted under “soft law”—a term referring to non-state rules that may be aspirational or reflect best practices but are not yet legally enforceable. In part, this shift reflects a decline in cross-border treaty-making, which needs widespread consensus and is subject to lengthy negotiations. lawreview - Minnesota Law Review - [A Blueprint for States To Solve the Mandatory Arbitration Problem While Avoiding FAA Preemption](https://minnesotalawreview.org/article/a-blueprint-for-states-to-solve-the-mandatory-arbitration-problem-while-avoiding-faa-preemption/) - By Sam Cleveland. Full Text. Employers are increasingly using mandatory pre-dispute arbitration clauses in employment contracts. Doing so gives employers benefits, such as privacy, the ability to select the arbitrators, and repeat players benefits, but they often leave employees without meaningful recourse when they are wronged, especially when class action waivers are used. This effect lawreview - Minnesota Law Review - [Jumping Hurdles To Sue the Police](https://minnesotalawreview.org/article/jumping-hurdles-to-sue-the-police/) - By Sunita Patel. Full Text. The view that the Supreme Court has limited judicial review of unconstitutional government practices is evident in varied quarters of legal scholarship. With respect to structural reform litigation against the police there are good reasons for pessimism, particularly when considering three particular lines of Supreme Court case law. City of lawreview - Minnesota Law Review - [Fighting for Attention: Democracy, Free Speech, and the Marketplace of Ideas](https://minnesotalawreview.org/article/fighting-for-attention-democracy-free-speech-and-the-marketplace-of-ideas/) - By G. Michael Parsons. Full Text. The marketplace of ideas features prominently in First Amendment doctrine, with the Supreme Court invalidating laws that purportedly interfere with the free flow of information through society. Yet, the modern version of the market metaphor rests entirely upon contradictory conceptual assumptions, false empirical premises, and an unsupported historical narrative. lawreview - Minnesota Law Review - [Comment on Griffith’s Deal Insurance: The Continuing Scramble Among Professionals](https://minnesotalawreview.org/article/comment-on-griffiths-deal-insurance-the-continuing-scramble-among-professionals/) - By Abraham J.B. Cable. Full Text. In his recent article, Professor Sean Griffith observes a substantial development in the M&A market. Increasingly, buyers and sellers replace traditional deal terms with an insurance product—representation and warranty insurance (“RWI”). This essay considers how this new product and the insurance professionals who sell and underwrite it affect the lawreview - Minnesota Law Review - [The Public Use of Reparations: How Land-Based Reparations Can Satisfy the Public Use Requirement of the Takings Clause](https://minnesotalawreview.org/article/the-public-use-of-reparations-how-land-based-reparations-can-satisfy-the-public-use-requirement-of-the-takings-clause/) - By Jack Davis. Full Text. After the horror of slavery, African Americans faced another obstacle to equality. Their lack of property created an intergenerational wealth problem that persists today. A Congressional act of reparations designed with housing in mind could strengthen our nation’s moral fabric while supporting economic activity for beneficiaries both in the present lawreview - Minnesota Law Review - [Space: The <del>Final</del> Next Frontier](https://minnesotalawreview.org/article/space-the-final-next-frontier/) - By Bonny Birkeland. Full Text. This Note explores the implications of the use of force in outer space under the current space and jus in bello regimes. By looking at the use of kinetic and direct energy ASATs under a proportionality calculus, this Note proposes a new consideration framework which outlines what a State actor lawreview - Minnesota Law Review - [A [Relational] Theory of Procedure](https://minnesotalawreview.org/article/a-relational-theory-of-procedure/) - By Justin Sevier. Full Text. Policymakers continue to grapple with the fundamental question of how to maximize the institutional legitimacy of legal conflict resolution. Recently, prominent scholars have begun advocating for a value-based approach to legal regulation, which seeks to maximize voluntary compliance with the law because members of the public believe that legal institutions lawreview - Minnesota Law Review - [Organizational Justice and Antidiscrimination](https://minnesotalawreview.org/article/organizational-justice-and-antidiscrimination/) - By Bradley A. Areheart. Full Text. Despite eighty years of governmental interventions, the legal system has proven ill-equipped to address workplace discrimination. Potential plaintiffs are reluctant to file discrimination claims for a host of social and economic reasons, and the relatively few who do file face steep structural barriers. This Article argues that the most lawreview - Minnesota Law Review - [Deal Insurance: Representation and Warranty Insurance in Mergers and Acquisitions](https://minnesotalawreview.org/article/deal-insurance-representation-and-warranty-insurance-in-mergers-and-acquisitions/) - By Sean J. Griffith. Full Text. Efficient contracting depends upon imposing risk on the party with superior access to information. Yet the parties in mergers and acquisitions transactions now commonly use Representation and Warranty Insurance (“RWI”) to shift this risk to a third-party insurer. Because liability and trust go together, RWI would seem to give lawreview - Minnesota Law Review - [Uncorporate Insider Trading](https://minnesotalawreview.org/article/uncorporate-insider-trading/) - By Peter Molk. Full Text. Insider trading restrictions rely on the existence of fiduciary duties. Developed at a time when company executives owed mandatory fiduciary duties to the company and its owners, the fiduciary duty requirement is routinely satisfied for a range of quintessential insider trading situations. However, new “uncorporate” entity forms—limited liability companies and lawreview - Minnesota Law Review - [Unraveling the Tax Treaty](https://minnesotalawreview.org/article/unraveling-the-tax-treaty/) - By Rebecca M. Kysar. Full Text. Coordination among nations over the taxation of international transactions rests on a network of some 2000 bilateral double tax treaties. The double tax treaty is, in many ways, the roots of the international system of taxation. That system, however, is in upheaval in the face of globalization, technological advances, lawreview - Minnesota Law Review - [The Supreme Court as a Tool of Foreign Policy?: Why a Proposed Flexible Framework of Established Judicial Doctrine Better Satisfies Foreign Policy Concerns in Alien Tort Statute Litigation](https://minnesotalawreview.org/article/the-supreme-court-as-a-tool-of-foreign-policy- why-a-proposed-flexible-framework-of-established-judicial-doctrine-better-satisfies-foreign-policy-concerns-in-alien-tort-statute-litigation/) - By Lucas Curtis. Full Text. Rarely invoked in almost two hundred years, the Alien Tort Statute (ATS) emerged as the main vehicle for bringing internationally-recognized human rights claims into United States courts in the 1980s and the 1990s. However, the turn of the twenty-first century has brought a series of Supreme Court decisions that have lawreview - Minnesota Law Review - [An Erie Silence: Erie Guesses and Their Effects on State Courts, Common Law, and Jurisdictional Federalism](https://minnesotalawreview.org/article/an-erie-silence-erie-guesses-and-their-effects-on-state-courts-common-law-and-jurisdictional-federalism/) - By Connor Shaull. Full Text. In the landmark U.S. Supreme Court case of Erie R.R. v. Tompkins, the Court broadly interpreted the Judiciary Act’s limitations and noted that: “There is no federal general common law.” This first-year law school lesson appears simple enough: federal courts, when applying any substantive state law, must defer to the lawreview - Minnesota Law Review - [Criminal Consequences and the Anti-Injunction Act](https://minnesotalawreview.org/article/criminal-consequences-and-the-anti-injunction-act/) - By Gerald S. Kerska. Full text. Abstract: The United States Supreme Court has made clear that no litigant should have to choose between asserting his legal rights and risking prosecution. That is not so for certain challenges to Treasury regulations. Information reporting regulations are enforced through civil penalties and criminal liability. Because those civil penalties count lawreview - Minnesota Law Review - [Competing Competitions: Anticompetitive Conduct by Publisher-Controlled Esports Leagues](https://minnesotalawreview.org/article/competing-competitions-anticompetitive-conduct-by-publisher-controlled-esports-leagues/) - By Michael Arin. Full Text. This Note examines the growing concern over publisher-controlled leagues in the esports industry. Upon recognizing the value of organized, competitive playing of video games—esports—beyond mere marketing for the underlying game, publishers began to create leagues of teams to play each other. These league operators used traditional sports as a model. lawreview - Minnesota Law Review - [The Progressivity Ratchet](https://minnesotalawreview.org/article/the-progressivity-ratchet/) - By Ari Glogower and David Kamin. Full Text. This Article evaluates the consequences of the 2017 tax legislation for the future of progressive tax reform. The 2017 tax legislation introduced significant preferences for business income, including a cut in the corporate rate and the new Section 199A deduction for “pass-through” income. Many commentators criticized the lawreview - Minnesota Law Review - [Private Law Alternatives to the Individual Mandate](https://minnesotalawreview.org/article/private-law-alternatives-to-the-individual-mandate/) - By Wendy Netter Epstein. Full Text. There is excitement on the left about a move to universal health care and on the right about returning more power to the states. Yet in a time of divided government, major health policy changes are not imminent. Meanwhile, millions of Americans are uninsured under the current system—a problem lawreview - Minnesota Law Review - [Religious Antiliberalism and the First Amendment](https://minnesotalawreview.org/article/religious-antiliberalism-and-the-first-amendment/) - By Richard Schragger and Micah Schwartzman. Full Text. An emerging intellectual and ideological critique of liberalism is coinciding with a significant transformation of the American law of church and state. Contemporary religious antiliberalism rejects principles of church-state separation that have long informed the meaning of the Establishment and Free Exercise Clauses. This attack on liberal lawreview - Minnesota Law Review - [The Fourth Amendment Implications of “U.S. Imitation Judges”](https://minnesotalawreview.org/article/the-fourth-amendment-implications-of-u-s-imitation-judges/) - By Mary Holper. Full Text. Scholars, immigration judges, attorneys, and congressional committees have been calling for a truly independent immigration adjudication system for decades, critiquing a system in which some immigration judges describe themselves as “U.S. imitation judges.” This Article examines the lack of truly independent immigration judges through the lens of the Fourth Amendment, lawreview - Minnesota Law Review - [Board Compliance](https://minnesotalawreview.org/article/board-compliance/) - By John Armour, Brandon Garrett, Jeffrey Gordon, and Geeyoung Min. Full Text. What role do corporate boards play in compliance? Compliance programs are internal enforcement programs, whereby firms train, monitor and discipline employees with respect to applicable laws and regulations. Corporate enforcement and compliance failures could not be more high-profile, and have placed boards in lawreview - Minnesota Law Review - [The Normative Fourth Amendment](https://minnesotalawreview.org/article/the-normative-fourth-amendment/) - By Matthew Tokson. Full Text. For decades, courts have used a “reasonable expectation of privacy” standard to determine whether a government action is a Fourth Amendment search. Scholars have convincingly argued that this test is incoherent, arbitrary, and incapable of protecting privacy against modern forms of surveillance. Yet few alternatives have been proposed, and those lawreview - Minnesota Law Review - [Moral Restorative Justice: A Political Genealogy of Activism and Neoliberalism in the United States](https://minnesotalawreview.org/article/moral-restorative-justice-a-political-genealogy-of-activism-and-neoliberalism-in-the-united-states/) - By Amy J. Cohen. Full Text. For decades, proponents of restorative justice on the political left have wondered if their preference for “less state” would attract complex bedfellows and political alliances. But it was only as the crisis of mass incarceration hit American cultural and political consciousness that an increasingly wide range of libertarian and lawreview - Minnesota Law Review - [Health Care Costs and the Arc of Innovation](https://minnesotalawreview.org/article/health-care-costs-and-the-arc-of-innovation/) - By Neel U. Sukhatme and M. Gregg Bloche. Full Text. Health care costs continue their inexorable rise, threatening America’s long-term fiscal stability, competitiveness, and standard of living. Over the past half-century, efforts to rein in spending have uniformly failed. In this Article, we explain why, breaking with standard accounts of regulatory and market dysfunction. We lawreview - Minnesota Law Review - [Note: Addressing the HIPAA-potamus Sized Gap in Wearable Technology Regulation](https://minnesotalawreview.org/article/note-addressing-the-hipaa-potamus-sized-gap-in-wearable-technology-regulation/) - By Paige Papandrea. Full Text. Wearable technology is wildly popular. It is also wildly unregulated. Millions of consumers buy and use these devices, which can constantly track and transmit a variety of users’ health information. Although this health information is similar to, and in many cases more abundant than, information collected by doctors and health lawreview - Minnesota Law Review - [Energy and Eminent Domain](https://minnesotalawreview.org/article/energy-and-eminent-domain/) - By James W. Coleman and Alexandra B. Klass. Full Text. This Article examines the growing opposition to the use of eminent domain for energy transport projects such as oil pipelines, gas pipelines, and electric transmission lines. Such projects were protected from the state legislative reforms that restricted eminent domain following the Supreme Court’s controversial decision in lawreview - Minnesota Law Review - [Note: A Broken Theory: The Malfunction Theory of Strict Products Liability and the Need for a New Doctrine in the Field of Surgical Robotics](https://minnesotalawreview.org/article/note-a-broken-theory-the-malfunction-theory-of-strict-products-liability-and-the-need-for-a-new-doctrine-in-the-field-of-surgical-robotics/) - By Christopher Beglinger. Full Text. The malfunction theory of strict products liability affords a plaintiff an inference of a product defect through the presentation of circumstantial evidence. Under the malfunction theory, a plaintiff may establish a prima facie case by providing evidence of the nature of a product malfunction, evidence eliminating abnormal use of the lawreview - Minnesota Law Review - [Public-Private Co-Enforcement Litigation](https://minnesotalawreview.org/article/public-private-co-enforcement-litigation/) - By Stephanie Bornstein. Full Text. Civil laws and their implementing regulations are effective at protecting public interests only if they are enforced. A number of federal statutes—including those that prevent discrimination, protect consumers and the environment, and restrain antitrust and securities violations—include “hybrid” enforcement schemes, authorizing both government agencies and private citizens to litigate violations. lawreview - Minnesota Law Review - [Paying for Gun Violence](https://minnesotalawreview.org/article/paying-for-gun-violence/) - By Samuel D. Brunson. Full Text. Gun violence is an outsized problem in the United States. Between a culture that allows for relatively unconstrained firearm ownership and a constitutional provision that ensures that ownership will continue to be relatively unchecked, it has proven virtually impossible for politicians to address the problem of gun violence. And lawreview - Minnesota Law Review - [Contracting for Fourth Amendment Privacy Online](https://minnesotalawreview.org/article/contracting-for-fourth-amendment-privacy-online/) - By Wayne A. Logan and Jake Linford. Full Text. For decades, the Supreme Court has applied what is known as the third-party doctrine, which allows police, acting without a warrant, to secure information that an individual has voluntarily revealed to others. Scholars have long criticized the doctrine and it only narrowly escaped its formal demise lawreview - Minnesota Law Review - [Note: Incognito Mode Is in the Constitution](https://minnesotalawreview.org/article/note-incognito-mode-is-in-the-constitution/) - By Travis Panneck. Full Text. How much should the government be able to learn about an internet user without probable cause? Following the third-party doctrine, courts have held that internet users have no reasonable expectation of privacy in information “turned over” to internet service providers through ordinary use of the internet. Through minimal compulsory process, lawreview - Minnesota Law Review - [Regulation in Transition](https://minnesotalawreview.org/article/regulation-in-transition/) - By Bethany A. Davis Noll and Richard L. Revesz. Full Text. Presidents have long sought to roll back their predecessors’ regulatory policies. They have typically relied on efforts to repeal regulations and to withdraw unpublished or non-final regulations pursuant to “stop-work” orders directed at agency heads. President Trump is no exception. But rather than stick lawreview - Minnesota Law Review - [Note: A Monumental Task: How Should Courts Review Challenges to Presidential Actions Taken Pursuant to the Antiquities Act?](https://minnesotalawreview.org/article/note-a-monumental-task-how-should-courts-review-challenges-to-presidential-actions-taken-pursuant-to-the-antiquities-act/) - By Bryan Mette. Full Text. The Antiquities Act of 1906 authorizes the President to designate national monuments on federally owned lands. Administrations have employed this authority to create approximately 160 national monuments. In December 2017, President Trump raised the ire of national monument proponents when he drastically reduced the size of Grand Staircase-Escalante and Bears lawreview - Minnesota Law Review - [Solving Banking’s “Too Big To Manage” Problem](https://minnesotalawreview.org/article/solving-bankings-too-big-to-manage-problem/) - By Jeremy C. Kress. Full Text. The United States’ banking system has a problem: some financial conglomerates are so vast and complex that their executives, directors, and shareholders cannot oversee them effectively. Recognizing this “too big to manage” (TBTM) dilemma, both major political parties have endorsed breaking up the banks, and bipartisan coalitions in Congress lawreview - Minnesota Law Review - [Restructuring Rebuttal of the Marital Presumption for the Modern Era](https://minnesotalawreview.org/article/restructuring-rebuttal-of-the-marital-presumption-for-the-modern-era/) - By Jessica Feinberg. Full Text. The longstanding marital presumption of paternity, under which a husband is presumed to be the legal father of any child born to or conceived by his wife during the marriage, has reached a critical juncture. Pursuant to the Supreme Court’s mandate that states provide marriage to same-sex couples on the lawreview - Minnesota Law Review - [Community in Property: Lessons from Tiny Homes Villages](https://minnesotalawreview.org/article/community-in-property-lessons-from-tiny-homes-villages/) - By Lisa T. Alexander. Full Text. The evolving role of community in property law remains undertheorized. While legal scholars have analyzed the commons, common interest communities, and aspects of the sharing economy, the recent rise of intentional co-housing communities remains relatively understudied. This Article analyzes tiny homes villages for unhoused people in the United States, lawreview - Minnesota Law Review - [Note: The Controversial Demise of Zauderer: Revitalizing Zauderer Post-NIFLA](https://minnesotalawreview.org/article/note-the-controversial-demise-of-zauderer-revitalizing-zauderer-post-nifla/) - By Aaron Stenz. Full Text. The First Amendment broadly stands for the idea that government attempts to curtail the right of the American people to both speak and not speak should be viewed with the utmost skepticism. In the context of compelled commercial speech, however, that scrutiny is lessened. Zaudererv. Office of Disciplinary Counsel of lawreview - Minnesota Law Review - [The Lawyer As Accomplice: Cannabis, Uber, Airbnb, and the Ethics of Advising “Disruptive” Businesses](https://minnesotalawreview.org/article/the-lawyer-as-accomplice-cannabis-uber-airbnb-and-the-ethics-of-advising-disruptive-businesses/) - By Charles M. Yablon. Full Text. This Article examines the legal and ethical problems of corporate lawyers who advise businesses that operate just beyond the edge of legality. These include manufacturers and sellers of cannabis products (a felony under federal law, even if ostensibly permitted by state statutes) as well as a substantial number of lawreview - Minnesota Law Review - [An Empirical Examination of Agency Statutory Interpretation](https://minnesotalawreview.org/article/an-empirical-examination-of-agency-statutory-interpretation/) - How do administrative agencies interpret statutes? This Article looks behind the black box of agency statutory interpretation to review how administrative agencies use canons of construction and other tools of statutory interpretation to decide cases. Surveying over 7000 cases heard by the National Labor Relations Board (NLRB) from 1993–2016, I analyze the statutory methodologies the Board uses in its decisions in order to uncover patterns over time. Overall, I find no ideological coherence to statutory methodology. Board members often use statutory methodologies with dueling purposes, with majority and dissenting Board members using the same statutory methodology to support contrasting outcomes. The Board has also changed how it interprets statutes over time, relying in recent years more on policy pronouncements and textual debates and less on precedent or legislative history as the primary method of interpretation. After analyzing the empirical data, I set forth policy recommendations for how agencies should interpret statutes. lawreview - Minnesota Law Review - [Religious Exemptions and LGBTQ Child Welfare](https://minnesotalawreview.org/article/religious-exemptions-and-lgbtq-child-welfare/) - This Article explains why we should view the experiences of LGBTQ youth in the child welfare system as an essential part of the debate over religious liberty and LGBTQ equality. It further describes why it is necessary to include eliminating LGBTQ-based child welfare inequality within a broader vision of a fully inclusive LGBTQ antidiscrimination regime. To accomplish these goals, this Article recasts religious exemptions involving LGBTQ child welfare through the lens of historical theories of sexual deviance in the fields of criminology, psychology, and sociology. lawreview - Minnesota Law Review - [Improving Consumer Protection: Lessons from the 2008 Recession](https://minnesotalawreview.org/article/improving-consumer-protection-lessons-from-the-2008-recession/) - The year 2018 marked ten years since the global financial meltdown. This Article focuses on the current state of consumer protection in the United States and considers the effectiveness of various post-meltdown government initiatives geared towards consumer protection. As the current administration dismantles many post-crisis initiatives, such as the Dodd-Frank Act, this Article considers the future of consumer protection and what Americans need moving forward. lawreview - Minnesota Law Review - [Constitutionalizing Consumer Financial Protection: The Case for the Consumer Financial Protection Bureau](https://minnesotalawreview.org/article/constitutionalizing-consumer-financial-protection-the-case-for-the-consumer-financial-protection-bureau/) - From its inception, the Consumer Financial Protection Bureau (CFPB) has been criticized in the court of public opinion for a host of reasons—mostly focused on the aggressive scope of its supervision, rulemaking, and enforcement actions. During the last several years, however, a new critique has emerged and gained traction—at least in federal courts. Defendants in CFPB enforcement actions began to routinely (and sometimes effectively) argue that the CFPB’s entire structure is unconstitutional. The CFPB faced its greatest constitutional crisis during the period from 2015 to 2018, when a D.C. Circuit case, PHH v. CFPB, threatened its structure, very existence, and—by extension—all of its prior enforcement actions. Though that case would ultimately be dismissed by the CFPB, questions about the CFPB’s constitutionality remain, even with 100 years of the Supreme Court’s key cases in executive power and agency independence behind us. This Article revisits this 100-year history, and then situates it against attacks upon the CFPB, finding that the CFPB’s design and structure stand on firm constitutional ground. However, the Article critiques the singular-director structure for other reasons and suggests improvements in order to improve the CFPB’s political—if not legal—standing for the future. lawreview - Minnesota Law Review - [The “Too Big to Fail” Problem](https://minnesotalawreview.org/article/the-too-big-to-fail-problem/) - “Too big to fail”—or “TBTF”—is a popular metaphor for a core dysfunction of today’s financial system: the recurrent pattern of government bailouts of large, systemically important financial institutions. The financial crisis of 2008 made TBTF a household term, a powerful rhetorical device for expressing the widely shared discontent with the pernicious pattern of privatizing gains and socializing losses it came to represent in the public’s eye. Ten years after the crisis, TBTF continues to frame much of the public policy debate on financial regulation. Yet, the analytical content of this term remains remarkably unclear. lawreview - Minnesota Law Review - [Halo from the Other Side: An Empirical Study of District Court Findings of Willful Infringement and Enhanced Damages Post-Halo](https://minnesotalawreview.org/article/halo-from-the-other-side-an-empirical-study-of-district-court-findings-of-willful-infringement-and-enhanced-damages-post-halo/) - The United States patent system is designed to reward inventors and patent holders who contribute novel, impactful, and non-obvious work. To maintain this system, Congress authorized damages as a remedy for infringed inventions. Whether compensatory or punitive, the system’s main goal is to prevent the proliferation of unwanted “infringing” behavior. Outside of that guidance, there is little definition of what qualifies as egregious behavior, thereby leaving lower courts significant discretion to decide how much to award in damages. Integral to the allocation of damages is the standard by which courts evaluate egregious, or “willful,” behavior. lawreview - Minnesota Law Review - [Note: The Cloying Use of Unallotment: Curbing Executive Branch Appropriation Reductions During Fiscal Emergencies](https://minnesotalawreview.org/article/the-cloying-use-of-unallotment-curbing-executive-branch-appropriation-reductions-during-fiscal-emergencies/) - By Tyler J. Siewert. Full text here. To ensure the perpetuation of balanced budgets, which are legal and practical requirements in forty-nine states, many state legislatures bestow upon the executive branch broad powers to reduce appropriations through unallotment statutes. The Note accentuates two dire legal inefficiencies plaguing an ample number of these laws. First, many statutes lawreview - Minnesota Law Review - [Note: Rule 14a-11 and the Administrative Procedure Act: It's Better to Have Had and Waived, than Never to Have Had at All](https://minnesotalawreview.org/article/note-rule-14a-11-and-the-administrative-procedure-act-its-better-to-have-had-and-waived-than-never-to-have-had-at-all/) - By Reed T. Schuster. Full text here. A dramatic sequence of events starting in the summer of 2007 caused the United States’ banking and financial systems to collapse and thrust the country into the worst financial crisis since the Great Depression. It was not just one thing, but a confluence of factors that led to the lawreview - Minnesota Law Review - [Note: Legitimate Absenteeism: The Unconstitutionality of the Caucus Attendance Requirement](https://minnesotalawreview.org/article/note-legitimate-absenteeism-the-unconstitutionality-of-the-caucus-attendance-requirement/) - By Heather R. Abraham. Full text here. Dubbed by the Washington Post as “undemocratic,” the caucus system for selecting delegates to national party presidential nominating conventions tends to disenfranchise identifiable factions of voters, including deployed service members, religious observers, persons with disabilities or in poor health, students who attend school away from home, and shift workers lawreview - Minnesota Law Review - [Money Talks but It Isn't Speech](https://minnesotalawreview.org/article/money-talks-but-it-isnt-speech-2/) - By Deborah Hellman. Full text here. The Article challenges the central premise of our campaign finance law, namely that restrictions on giving and spending money constitute restrictions on speech, and thus can only be justified by compelling governmental interests. This claim has become so embedded in constitutional doctrine that in the most recent Supreme Court case lawreview - Minnesota Law Review - [On the Edge: Declining Marginal Utility and Tax Policy](https://minnesotalawreview.org/article/on-the-edge-declining-marginal-utility-and-tax-policy-2/) - By Sarah B. Lawsky. Full text here. Tax policy and scholarship generally assume that income has declining marginal utility (that is, that the next dollar is worth less to a wealthier person than to a poorer person). This assumption provides an easy justification for redistributive taxation. But the legal literature provides no firm grounding for the lawreview - Minnesota Law Review - [Executive Compensation in the Courts: Board Capture, Optimal Contracting, and Officers' Fiduciary Duties](https://minnesotalawreview.org/article/executive-compensation-in-the-courts-board-capture-optimal-contracting-and-officers-fiduciary-duties/) - By Randall S. Thomas & Harwell Wells. Full text here. Americans seem convinced that corporate executives are paid too much. So far, however, attempts to rein in executive compensation have met with little success. In the Article we propose a new approach to monitoring executive compensation, one that turns to an unlikely institution to oversee pay: lawreview - Minnesota Law Review - [Special Incentives to Sue](https://minnesotalawreview.org/article/special-incentives-to-sue-3/) - By Margaret H. Lemos. Full text here. In an effort to strengthen private enforcement of federal law, Congress regularly employs plaintiff-side attorneys’ fee shifts, damage enhancements, and other mechanisms that promote litigation. Standard economic theory predicts that these devices will increase the volume of suits by private actors, which in turn will bolster enforcement and encourage lawreview - Minnesota Law Review - [Regulation in the Behavioral Era](https://minnesotalawreview.org/article/regulation-in-the-behavioral-era-2/) - By Michael P. Vandenbergh, Amanda R. Carrico, & Lisa Schultz Bressman. Full text here. Administrative agencies have long proceeded on the assumption that individuals respond to regulations in ways that are consistent with traditional rational-actor theory, but that is beginning to change. Agencies are now relying on behavioral economics to develop regulations that account for lawreview - Minnesota Law Review - [Note: Relative Futility: Limits to Genetic Privacy Protection Because of the Inability to Prevent Disclosure of Genetic Information by Relatives](https://minnesotalawreview.org/article/note-relative-futilitylimits-to-genetic-privacy-protection-because-of-the-inability-to-prevent-disclosure-of-genetic-information-by-relatives/) - By Trevor Woodage. Full text here. The Note considers possible limits to reasonable expectations of genetic privacy given that people share their DNA sequences with their relatives. Most scholars and members of the general public believe that an individual’s DNA sequence is an intensely personal matter and that access to this information should be tightly controlled. lawreview - Minnesota Law Review - [Note: Defining Unpatented Article: Why Labeling Products with Expired Patent Numbers Should Not Be False Marking](https://minnesotalawreview.org/article/note-defining-unpatented-article-why-labeling-products-with-expired-patent-numbers-should-not-be-false-marking/) - By Laura Arneson. Full text here. The false marking statute was designed to prevent products from being labeled with patents that do not apply to them, but the Federal Circuit recently extended its reach to prevent labeling products with expired patent numbers. This decision has spurred litigation by third parties against the makers of articles covered lawreview - Minnesota Law Review - [The Visible Hand: Coordination Functions of the Regulatory State](https://minnesotalawreview.org/article/the-visible-hand-coordination-functions-of-the-regulatory-state/) - By Robert B. Ahdieh. Full text here. From the financial crisis and changing forms of musical creativity to the rise of the Internet and increasing standard-setting conflict, the challenges of modern social and economic life are increasingly defined not by the need to reconcile conflicting interests, but rather to coordinate the choices of dispersed—and diverse—individuals and lawreview - Minnesota Law Review - [Trading-Off Reproductive Technology and Adoption: Does Subsidizing IVF Decrease Adoption Rates and Should It Matter?](https://minnesotalawreview.org/article/trading-off-reproductive-technology-and-adoption-does-subsidizing-ivf-decrease-adoption-rates-and-should-it-matter/) - By I. Glenn Cohen & Daniel L. Chen. Full text here. For those facing infertility, using assisted reproductive technology to have genetically related children is a very expensive proposition. In particular, to produce a live birth through in vitro fertilization (IVF) would cost an individual (on average) between $66,667 and $114,286 in the United States. If lawreview - Minnesota Law Review - [Adaptive Management in the Courts](https://minnesotalawreview.org/article/adaptive-management-in-the-courts/) - By J.B. Ruhl & Robert L. Fischman. Full text here. Adaptive management has become the tonic of natural resources policy. With its core idea of “learning while doing,” adaptive management has become infused into the natural resources policy world to the point of ubiquity, surfacing in everything from mundane agency permits to grand presidential proclamations. Indeed, lawreview - Minnesota Law Review - [Impeachment and Assassination](https://minnesotalawreview.org/article/impeachment-and-assassination/) - By Josh Chafetz. Full text here. In 1998, the conservative provocateur Ann Coulter made waves when she wrote that President Clinton should be either impeached or assassinated. Coulter was roundly—and rightly—condemned for suggesting that the murder of the president might be justified, but her conceptual linking of presidential impeachment and assassination was not entirely unfounded. Indeed, lawreview - Minnesota Law Review - [Note: Immunity for Vaccine Manufacturers: The Vaccine Act and Preemption of Design Defect Claims](https://minnesotalawreview.org/article/immunity-for-vaccine-manufacturers-the-vaccine-act-and-preemption-of-design-defect-claims/) - By Eva B. Stensvad. Full text here. Vaccines are one of the most important medical advancements in history. Childhood immunization efforts are widely promoted by state and federal governments as well as medical professionals and institutions. While routine pediatric vaccines prevent many lethal and debilitating diseases, they also carry the potential to cause injury. Predictably, the lawreview - Minnesota Law Review - [Note: The Need for Review: Allowing Defendants to Appeal the Factual Basis of a Conviction After Pleading Guilty](https://minnesotalawreview.org/article/note-the-need-for-review-allowing-defendants-to-appeal-the-factual-basis-of-a-conviction-after-pleading-guilty/) - By Steven Schmidt. Full text here. An essential element of any guilty plea is the factual basis requirement. This requirement states that a court may only accept a guilty plea if an underlying set of facts exists that supports the plea. In many circumstances, federal criminal defendants have challenged their guilty pleas in the courts of lawreview - Minnesota Law Review - [Note: Meeting Boumediene′s Challenge: The Emergence of an Effective Habeas Jurisprudence and Obsolescence of New Detention Legislation](https://minnesotalawreview.org/article/meeting-boumediene-s-challenge-the-emergence-of-an-effective-habeas-jurisprudence-and-obsolescence-of-new-detention-legislation/) - By Nathaniel H. Nesbitt. Full text here. The Supreme Court’s decision in Boumediene v. Bush gave suspected terrorists at Guantánamo Bay access to a system in which federal judges in Washington, D.C. adjudicate the legality of their detention. While many, perhaps most, legal commentators praise Boumediene as a victory for individual rights, critics argue that the lawreview - Minnesota Law Review - [Administration By Treasury](https://minnesotalawreview.org/article/administrative-law/) - By David Zaring. Full text here. Although the Administrative Procedure Act (APA) in theory regulates government policymaking, the agency that is both among the oldest and, as the financial crisis has revealed, one of the most important, does not play by its rules. The Treasury Department is rarely sued for its administrative procedure, makes fewer rules than lawreview - Minnesota Law Review - [Dual Illegality and Geoambiguous Law: A New Rule for Extraterritorial Application of U.S. Law](https://minnesotalawreview.org/article/dual-illegality-and-geoambiguous-law-a-new-rule-for-extraterritorial-application-of-u-s-law/) - By Jeffrey A. Meyer. Full text here. Scores of federal criminal and civil statutes are “geoambiguous”—they do not say whether they apply to conduct that takes place in foreign countries. This is a vital concern in an age of exploding globalization. The Supreme Court regularly cites a “presumption against extraterritoriality,” but just as often overlooks it lawreview - Minnesota Law Review - [Anticompetitive Effect](https://minnesotalawreview.org/article/anticompetitive-effect/) - By Hon. Richard D. Cudahy & Alan Devlin. Full text here. Despite receiving thorough analytic treatment from the judiciary and academy, and notwithstanding its sophisticated doctrine, antitrust law remains dogged by a profound incongruity, for precisely what the law condemns remains elusive. Certainly, there is widespread agreement that the antitrust laws exist to promote some lawreview - Minnesota Law Review - [Strategic Enforcement](https://minnesotalawreview.org/article/strategic-enforcement/) - By Margaret H. Lemos & Alex Stein. Full text here. Doctrine and scholarship recognize two basic models of enforcing the law: the comprehensive model, under which law enforcers try to apprehend and punish every violator within the bounds of feasibility; and the randomized model, under which law enforcers economize their efforts by apprehending a small number lawreview - Minnesota Law Review - [The Role of Dissenting Opinions](https://minnesotalawreview.org/article/the-role-of-dissenting-opinions/) - By Hon. Ruth Bader Ginsburg. Full text here. lawreview - Minnesota Law Review - [Note: Hold Fast the Keys to the Kingdom: Federal Administrative Agencies and the Need for Brady Disclosure](https://minnesotalawreview.org/article/note-hold-fast-the-keys-to-the-kingdom-federal-administrative-agencies-and-the-need-for-brady-disclosure/) - By Justin Goetz. Full text here. Due process protections for defendants vary greatly between the numerous federal agencies vested with civil enforcement powers. Many of these agencies fail to provide defendants with basic safeguards, including the protections available in the Federal Rules of Criminal Procedure. As federal administrative agencies continue to increase both the scope of lawreview - Minnesota Law Review - [Note: Turning Winners into Losers: Ponzi Scheme Avoidance Law and the Inequity of Clawbacks](https://minnesotalawreview.org/article/note-turning-winners-into-losers-ponzi-scheme-avoidance-law-and-the-inequity-of-clawbacks/) - By Karen E. Nelson. Full text here. The sentencing of Bernard Madoff in 2008 closed a chapter in the saga of one of the most extensive and destructive Ponzi schemes in American history. But the fallout from the fraud is just beginning. While every investor in a Ponzi scheme suffers financially once the fraud is exposed, lawreview - Minnesota Law Review - [Note: Expanding the Role of Trade Preference Programs](https://minnesotalawreview.org/article/note-expanding-the-role-of-trade-preference-programs/) - By Monica Patel. Full text here. Trade preference programs lower trade barriers for developing countries and open opportunities in consumer-driven markets which, in turn, increases their trade and economic growth. One example of a trade preference program in the United States is the Generalized System of Preferences (GSP) program that provides duty-free treatment for about 4800 lawreview - Minnesota Law Review - [Constitutional Spaces](https://minnesotalawreview.org/article/constitutional-spaces/) - By Allan Erbsen. Full text here. The Article is the first to systematically consider the Constitution’s identification, definition, and integration of the physical spaces in which it applies. Knowing how the Constitution addresses a particular problem often requires knowing where the problem arises. Yet despite the importance and pervasiveness of spatial references in the Constitution, commentators lawreview - Minnesota Law Review - [Erie′s Suppressed Premise](https://minnesotalawreview.org/article/erie-s-suppressed-premise/) - By Michael Steven Green. Full text here. The Erie doctrine is usually understood as a limitation on federal courts’ power. The Article concerns the unexplored role that the Erie doctrine has in limiting the power of state courts. According to Erie Railroad Co. v. Tompkins, a federal court must follow state supreme court decisions when interpreting lawreview - Minnesota Law Review - [Whose Claim Is This Anyway? Third-Party Litigation Funding](https://minnesotalawreview.org/article/whose-claim-is-this-anyway-third-party-litigation-funding/) - By Maya Steinitz. Full text here. Third-party litigation funding, or litigation finance, is a new industry composed of institutional investors who invest in litigation by providing finance in return for an ownership stake in a legal claim and a contingency in the recovery. Its emergence has been recognized as one of the most significant developments in lawreview - Minnesota Law Review - [The Role of the United States Supreme Court in Interpreting and Developing Humanitarian Law](https://minnesotalawreview.org/article/the-role-of-the-united-states-supreme-court-in-interpreting-and-developing-humanitarian-law/) - By David Weissbrodt & Nathaniel H. Nesbitt. Full text here. In the absence of a single authoritative mechanism to interpret humanitarian law, a number of treaty bodies, national courts, regional human rights courts/commissions, international tribunals, and thematic mechanisms have been called upon to address humanitarian law issues. Prime among these institutions is the U.S. Supreme Court. lawreview - Minnesota Law Review - [Note: Federal Preemption and the Rating Agencies: Eliminating State Law Liability to Promote Quality Ratings](https://minnesotalawreview.org/article/note-federal-preemption-rating-agencies-eliminating-state-law-liability-promote-quality-ratings/) - By Timothy M. Sullivan. Full text here. The credit rating agencies remain under intense scrutiny amidst the current financial crisis. Congress is currently considering multiple proposals to alter the federal regime for regulating rating agencies. Meanwhile, large-scale investors such as the California Public Employees Retirement Services (CalPERS) have commenced major litigation to recover losses allegedly suffered lawreview - Minnesota Law Review - [Note: The Due Process Rights of Parents to Cross-Examine Guardians Ad Litem in Custody Disputes: The Reality and the Ideal](https://minnesotalawreview.org/article/note-due-process-rights-parents-cross-examine-guardians-ad-litem-custody-disputes-reality-ideal/) - By Emily Gleiss. Full text here. Currently, state statutes that govern guardian ad litem appointments for children in custody disputes fail to protect the due process rights of parents. Focused solely on the best interests of children, these laws provide few safeguards against the infringement of parents’ rights to the care, custody, and control of their lawreview - Minnesota Law Review - [Note: Challenging Peremptories: Suggested Reforms to the Jury Selection Process Using Minnesota as a Case Study](https://minnesotalawreview.org/article/note-challenging-peremptories-suggested-reforms-jury-selection-process-minnesota-case-study/) - By Maisa Jean Frank. Full text here. Jury selection proceeds differently in each state. Though not constitutionally mandated, each jurisdiction allows attorneys to exercise peremptory challenges as part of the process. During the past sixty years, members of the legal profession have consistently called into question the validity of this practice. Supreme Court jurisprudence gives selected lawreview - Minnesota Law Review - [Who's Afraid of Law and the Emotions?](https://minnesotalawreview.org/article/afraid-law-emotions/) - By Kathryn Abrams & Hila Keren. Full text here. Law and emotions scholarship has reached a critical moment in its trajectory. It has become a varied and dynamic body of work, mobilizing diverse disciplinary understandings, to analyze the range of emotions that implicate law and legal decisionmaking. Yet mainstream legal academics have often greeted it with lawreview - Minnesota Law Review - [Judicial Discipline and the Appearance of Impropriety: What the Public Sees Is What the Judge Gets](https://minnesotalawreview.org/article/judicial-discipline-appearance-impropriety-public-sees-judge/) - By Raymond J. McKoski. Full text here. In order to promote public trust in the independence and impartiality of the judicial system, judges are required to forego a litany of professional and personal behaviors deemed to be inconsistent with the role of the neutral magistrate. For example, codes of judicial conduct prohibit ex parte communications, the lawreview - Minnesota Law Review - [Fiduciaries with Conflicting Obligations](https://minnesotalawreview.org/article/fiduciaries-conflicting-obligations/) - By Steven L. Schwarcz. Full text here. This Article examines the dilemma of a fiduciary acting for parties who, as among themselves, have conflicting commercial interests—an inquiry fundamentally different from that of the traditional study of conflicts between fiduciaries and their beneficiaries. Existing legal principles do not fully capture this dilemma because agency law focuses primarily lawreview - Minnesota Law Review - [Constitutional Dictatorship: Its Dangers and Its Design](https://minnesotalawreview.org/article/constitutional-dictatorship-dangers-design/) - By Sanford Levinson & Jack M. Balkin. Full text here. A constitutional dictatorship is a system (or subsystem) of constitutional government that bestows on a certain individual or institution the right to make binding rules, directives, and decisions and apply them to concrete circumstances unhindered by timely legal checks to their authority. Constitutional dictatorship, far from lawreview - Minnesota Law Review - [Regulating Insurance Sales or Selling Insurance?: Against Regulatory Competition in Insurance](https://minnesotalawreview.org/article/regulating-insurance-sales-selling-insurance-regulatory-competition-insurance/) - By Daniel Schwarcz. Full text here. In certain regulatory regimes, including those governing banking and corporate law, firms are permitted to choose among multiple competing regulators. This Article examines the desirability of such regulatory competition in the context of property, casualty, and life insurance markets. It analyzes various different approaches to structuring such regulatory competition, including lawreview - Minnesota Law Review - [Note: Diversity Jurisdiction and Injunctive Relief: Using "Moving-Party Approach" to Value the Amount in Controversy](https://minnesotalawreview.org/article/diversity-jurisdiction-injunctive-relief-moving-party-approach-amount-controversy/) - By Christopher A. Pinahs. Full text here. A necessary requirement for federal diversity jurisdiction is that the amount in controversy exceeds $75,000. Injunctions, however, are not a sum certain, and courts often struggle to value this intangible form of relief for purposes of diversity jurisdiction. Further compounding this problem is the fact that injunctions often differentially lawreview - Minnesota Law Review - [Note: The Problem with Waste: Delaware's Lenient Treatment of Waste Claims at the Demand Stage of Derivative Litigation](https://minnesotalawreview.org/article/problem-waste-delawares-lenient-treatment-waste-claims-demand-stage-derivative-litigation/) - By Jamie L. Kastler. Full text here. This Note addresses the Delaware courts’ treatment of waste claims at the demand stage of derivative litigation. Recent Delaware opinions indicate that waste is part of the fiduciary duty of good faith. This means that directors are not protected from claims of waste by section 102(b)(7) exculpation clauses lawreview - Minnesota Law Review - [Note: Insufficient Government Protection: The Inescapable Element in Domestic Violence Asylum Cases](https://minnesotalawreview.org/article/insufficient-government-protection-inescapable-element-domestic-violence-asylum-cases/) - By Elsa M. Bullard. Full text here. Domestic violence asylum applicants have spent years struggling to demonstrate they are a particular social group within the meaning of refugee statutes and thus worthy of asylum in the United States. Recent statements by the Department of Homeland Security (DHS) and a favorable outcome for the applicant in In lawreview - Minnesota Law Review - [Dodd-Frank: Quack Federal Corporate Governance Round II](https://minnesotalawreview.org/article/dodd-frank-quack-federal-corporate-governance-ii/) - By Stephen M. Bainbridge. Full text here. The question before us is whether Dodd-Frank’s corporate governance provisions, like those of SOX, are mere quackery. Part I of the Article focuses on the problem of quack corporate governance regulation in the abstract. What are the defining characteristics of a quack law? Why would Congress adopt such laws? lawreview - Minnesota Law Review - [Uncomfortable Embrace: Federal Corporate Ownership in the Midst of the Financial Crisis](https://minnesotalawreview.org/article/uncomfortable-embrace-federal-corporate-ownership-midst-financial-crisis/) - By Steven M. Davidoff. Full text here. The Article traces the terms of the government’s private ownership during the financial crisis, and provides a near-term critique of the government’s corporate ownership experience. It concludes that the government largely achieved its economic and social goals. The government ultimately saved the financial system, stalled a financial panic, and lawreview - Minnesota Law Review - [Government Governance and the Need to Reconcile Government Regulation with Board Fiduciary Duties](https://minnesotalawreview.org/article/government-governance-reconcile-government-regulation-board-fiduciary-duties/) - By Lisa M. Fairfax. Full text here. Corporate governance reforms strive to shore up directors’ roles, not only seeking to ensure that boards have sufficient incentives to engage in effective oversight, but also aiming to ensure that boards are held accountable for their oversight failures. The newest wave of reforms is no exception. The current financial lawreview - Minnesota Law Review - [Compromised Fiduciaries: Conflicts of Interest in Government and Business](https://minnesotalawreview.org/article/compromised-fiduciaries-conflicts-interest-government-business/) - By Claire Hill & Richard Painter. Full text here. In both business and government, we can distinguish between two types of conflicts. One type traditionally and more effectively dealt with by law is a direct conflict, involving self-interest narrowly construed. Two common examples are the government official who is negotiating for a private sector job with lawreview - Minnesota Law Review - [Fiduciary-Based Standards for Bailout Contractors: What the Treasury Got Right and Wrong in TARP](https://minnesotalawreview.org/article/fiduciary-based-standards-bailout-contractors-treasury-wrong-tarp/) - By Kathleen Clark. Full text here. Congress authorized the Treasury Department to use outside entities (contractors and financial agents) to implement the TARP bailout program. Treasury embraced this authority, engaging in the wholesale delegation of the administration of TARP to these outsiders. While outsourcing government work is common, one aspect of Treasury’s outsourcing is not: its lawreview - Minnesota Law Review - [Who Benefited from the Bailout?](https://minnesotalawreview.org/article/benefited-bailout/) - By Jonathan G. Katz. Full text here. The Troubled Asset Relief Program (TARP) was created to respond to a financial panic. Some might say that it was created in panic. Congress appropriated a huge sum of money, gave the Secretary of the Treasury enormous latitude to spend the money, and provided ambiguous, and, some might say, lawreview - Minnesota Law Review - [The Financial Crisis of 2008-2009: Capitalism Didn't Fail, but the Metaphors Got a "C"](https://minnesotalawreview.org/article/financial-crisis-2008-2009-capitalism-fail-metaphors-c/) - By Jeffrey M. Lipshaw. Full text here. The first panel’s topic within the symposium on the financial meltdown of 2008–2009 is the deliciously broad question: “Did capitalism fail?” I have taken it as an invitation to ponder not the merits and demerits of modern global financial systems, but instead to continue my assessment of how lawreview - Minnesota Law Review - [Government Ethics and Bailouts: The Past, Present, and Future](https://minnesotalawreview.org/article/government-ethics-bailouts-past-present-future/) - By Nicole Elsasser Watson. Full text here. lawreview - Minnesota Law Review - [Corporate Governance in an Age of Separation of Ownership from Ownership](https://minnesotalawreview.org/article/corporate-governance-age-separation-ownership-ownership/) - By Usha Rodrigues. Full text here. The shareholder empowerment provisions enacted as part of the recent bailout legislation are internally incoherent because they fail to address the short-termist realities of shareholder ownership today. Ownership has separated from ownership in modern corporate America: individual investors now largely hold stock through mutual funds, pension funds, and hedge funds. lawreview - Minnesota Law Review - [Privatization and the Sale of Tax Revenues](https://minnesotalawreview.org/article/privatization-sale-tax-revenues/) - By Julie A. Roin. Full text here. While the privatization of governmental activities may have begun as an effort to obtain efficiency gains, increasingly privatization transactions have become a mechanism for surreptitiously borrowing money. One city’s 2008 decision to “sell” its parking meters for $1.56 billion provides a perfect example of this sort of revenue-driven “privatization.” lawreview - Minnesota Law Review - [Arrest Efficiency and the Fourth Amendment](https://minnesotalawreview.org/article/arrest-efficiency-fourth-amendment/) - By L. Song Richardson. Full text here. In recent years, legal scholars have utilized the science of implicit social cognition to reveal how unconscious biases affect perceptions, behaviors, and judgments. Employing this science, scholars critique legal doctrine and challenge courts to take accurate theories of human behavior into account or to explain their failure to do lawreview - Minnesota Law Review - [Children's Constitutional Rights](https://minnesotalawreview.org/article/childrens-constitutional-rights/) - By Anne C. Dailey. Full text here. The long history of denying children the full range of constitutional rights has its roots in a choice theory of rights that understands rights as deriving from the decisionmaking autonomy of the individual. From the perspective of choice theory, children do not enjoy most constitutional rights because they lack lawreview - Minnesota Law Review - [Freedom of Testation / Freedom of Contract](https://minnesotalawreview.org/article/freedom-testation-freedom-contract/) - By Adam J. Hirsch. Full text here. The Article argues that lawmakers ought to recategorize inheritance law and contract law as cognate bodies of doctrine within a larger genus of transfers law. The Article examines comparatively the justifications for freedom of contract and freedom of testation, and concludes that their underlying rationales are largely, although not lawreview - Minnesota Law Review - [Note: Blowing Up the Pipes: The Use of (c)(4) to Dismantle Campaign Finance Reform](https://minnesotalawreview.org/article/note-blowing-pipes-c4-dismantle-campaign-finance-reform/) - By Cory G. Kalanick. Full text here. In the aftermath of the Supreme Court’s decision in Citizens United, nonprofit organizations originally designed to promote social welfare interests have become the latest loophole for political financiers to bypass campaign finance regulations. The federal regime of campaign finance laws—designed to prevent corruption and preserve the integrity of our lawreview - Minnesota Law Review - [Note: UNCLOS, but No Cigar: Overcoming Obstacles to the Prosecution of Maritime Piracy](https://minnesotalawreview.org/article/note-unclos-cigar-overcoming-obstacles-prosecution-maritime-piracy/) - By Ryan P. Kelley. Full text here. The international response to acts of maritime piracy around Somalia requires a credible foundation in international law. Naval patrols from nearly every world power lack accurate and well-reasoned jurisdictional mandates necessary to carry out their duties effectively. They want for this essential legal complement because their states fail to lawreview - Minnesota Law Review - [Note: When Sosa Meets Iqbal: Plausibility Pleading in Human Rights Litigation](https://minnesotalawreview.org/article/sosa-meets-iqbal-plausibility-pleading-human-rights-litigation/) - By Jordan D. Shepherd. Full text here. Human rights litigation under the Alien Tort Statute (ATS) has increased dramatically in the past few decades. Due to actions of a host of players around the world, this struggle for rights and remedies is dependent upon the rules of domestic court systems. Within U.S. civil litigation, two key lawreview - Minnesota Law Review - [Identity Scripts & Democratic Deliberation](https://minnesotalawreview.org/article/identity-scripts-democratic-deliberation-2/) - By Holning Lau. Full text here. This Article contributes to the literature on negotiation of identity scripts. For an example of such negotiation, consider the prominent case of Barack Obama. Commentators have noted that Americans typically perceive President Obama as a black man and ascribe him corresponding scripts—that is to say, socially constructed expectations—for “acting black.” lawreview - Minnesota Law Review - [Legislative Prayer and the Secret Costs of Religious Endorsements](https://minnesotalawreview.org/article/legislative-prayer-secret-costs-religious-endorsements-2/) - By Christopher C. Lund. Full text here. For fifty years, the Establishment Clause has generally required the government to be neutral on religious questions. That principle of neutrality, however, has become more controversial with time. Now even quite moderate judges and commentators reject it as a conceptual model for the Establishment Clause. Part of it is lawreview - Minnesota Law Review - [From Exclusivity to Concurrence](https://minnesotalawreview.org/article/exclusivity-concurrence/) - By Mark D. Rosen. Full text here. In arguing that President Washington could not interpret a mutual defense treaty that potentially required America to join battle with France—but that only Congress could interpret the treaty on account of its power to declare war—James Madison reasoned that “the same specific function or act, cannot possibly belong to lawreview - Minnesota Law Review - [Concepts, Categories, and Compliance in the Regulatory State](https://minnesotalawreview.org/article/concepts-categories-compliance-regulatory-state/) - By Kristin E. Hickman & Claire A. Hill. Full text here. Law is, of course, always a product of its history. But for some regimes, history matters both more and differently than for others. In some instances, the requirements and scope of a regulatory regime’s coverage are sufficiently attenuated from statutory text and purpose that lawreview - Minnesota Law Review - [Note: Reconciling the Public Employee Speech Doctrine and Academic Speech After Garcetti v. Ceballos](https://minnesotalawreview.org/article/note-reconciling-public-employee-speech-doctrine-academic-speech-garcetti-v-ceballos/) - By Darryn Cathryn Beckstrom. Full text here. In 2006, the Supreme Court held in Garcetti v. Ceballos that public employees are not entitled to First Amendment protection for speech arising from their official duties. The Court declined to address whether Garcetti’s holding applied to academic speech, and consequently, lower courts are unclear about whether academics employed lawreview - Minnesota Law Review - [Note: Deterring Fraud to Increase Public Confidence: Why Congress Should Allow Government Employees to File Qui Tam Lawsuits](https://minnesotalawreview.org/article/deterring-fraud-increase-public-confidence-congress-government-employees-file-qui-tam-lawsuits/) - By Barry M. Landy. Full text here. Contractor fraud against the government is rampant as contractors regularly inflate the cost of their services and overcharge the government for their work. The federal False Claims Act (FCA) is the government’s most successful litigation tool for combating fraud, resulting in recoveries of approximately $22 billion since 1986. Traditionally, lawreview - Minnesota Law Review - [Note: The Protective Scope of the Fair Debt Collection Practice Act: Providing Mortgagors the Protection They Deserve from Abusive Foreclosure Practices](https://minnesotalawreview.org/article/note-protective-scope-fair-debt-collection-practice-act-providing-mortgagors-protection-deserve-abusive-foreclosure-practices/) - By Eric M. Marshall. Full text here. The Fair Debt Collection Practices Act (FDCPA) is intended to provide consumers broad protection from abusive and harassing practices of debt collectors. However, courts disagree over whether mortgage foreclosure constitutes debt collection under the Act. Several circuit courts hold that mortgage foreclosure is debt collection under the FDCPA, but lawreview - Minnesota Law Review - [Against Permititis: Why Voluntary Organizations Should Regulate the Use of Cancer Drugs](https://minnesotalawreview.org/article/permititis-voluntary-organizations-regulate-cancer-drugs/) - By Richard A. Epstein. Full text here. Although the principle of personal autonomy is commonly accepted as the proper guide for health care decisions, that principle has been conspicuously absent in the area of drug regulation, where the FDA has the unquestioned power to keep drugs off the market if it deems them either unsafe or lawreview - Minnesota Law Review - [Reconfiguring Estate Settlement](https://minnesotalawreview.org/article/reconfiguring-estate-settlement/) - By John H. Martin. Full text here. Probate, the judicial process for settling a decedent’s estate, has been vilified and shunned for nearly five decades. Its cost, delay, and lack of privacy motivate the public and their advisors to utilize a multiplicity of title formats and alternative devices to transfer assets at death. For some time lawreview - Minnesota Law Review - [Why Did the Incorporation of the Bill of Rights Fail in the Late Nineteenth Century?](https://minnesotalawreview.org/article/incorporation-bill-rights-fail-late-nineteenth-century/) - By Gerard N. Magliocca. Full text here. This Article examines the failure of the incorporation doctrine following the ratification of the Fourteenth Amendment and draws some lessons from that experience for the live issue of whether the Second Amendment should apply to the States. The analysis reaches three main conclusions. First, the opinion in the Slaughter-House lawreview - Minnesota Law Review - [Note: Credit Rating Agencies and the First Amendment: Applying Constitutional Journalistic Protections to Subprime Mortgage Litigation](https://minnesotalawreview.org/article/note-credit-rating-agencies-amendment-applying-constitutional-journalistic-protections-subprime-mortgage-litigation/) - By Theresa Nagy. Full text here. The First Amendment should not protect credit rating agencies for their grossly inaccurate ratings of residential mortgage-backed securities. The rating agencies played a significant role in the subprime mortgage crash and resulting financial market crisis. In past litigation, rating agencies have been successful in defending lawsuits involving claims of inaccurate lawreview - Minnesota Law Review - [Note: In re the Welfare of Due Process](https://minnesotalawreview.org/article/in-welfare-of-due-process/) - By Kristin K. Zinsmaster. Full text here. The juvenile justice system is not the same as when it started. This Note argues that the juvenile court has become as punitive, as public, and as formalistic as the adult system from which it was supposed to differ. Furthermore, the modern juvenile court suffers from the precise problems lawreview - Minnesota Law Review - [Corporate Control and the Need for Meaningful Board Accountability](https://minnesotalawreview.org/article/corporate-control-meaningful-board-accountability/) - By Michelle M. Harner. Full text here. Corporations are vulnerable to the greed, self-dealing, and conflicts of those in control of the corporation. Courts traditionally regulate these potential abuses by designating the board of directors and senior management as fiduciaries. In some instances, however, shareholders, creditors, or others outside of corporate management influence corporate decisions and, lawreview - Minnesota Law Review - [American Trust Law in a Chinese Mirror](https://minnesotalawreview.org/article/american-trust-law-chinese-mirror/) - By Frances H. Foster. Full text here. Comparative law scholars use the term “legal transplant” to refer to the transfer of legal rules, institutions, and norms from one legal system to another. This Article identifies a valuable, previously unrecognized, feature of legal transplants. The transplant process can generate intensive study of the donor legal system by lawreview - Minnesota Law Review - [Property Rhetoric and the Public Domain](https://minnesotalawreview.org/article/property-rhetoric-public-domain/) - By David Fagundes. Full text here. Those who prefer broad intellectual property rights often deploy the rhetoric of physical property. By contrast, those who are concerned about maintaining public entitlements in information resist that rhetoric. In this Article, I take this dichotomy as a starting point for investigating the power of property rhetoric as a tool lawreview - Minnesota Law Review - [Hard v. Soft Law: Alternatives, Complements, and Antagonists in International Governance](https://minnesotalawreview.org/article/hard-v-soft-law-alternatives-complements-antagonists-international-governance/) - By Gregory C. Shaffer & Mark A. Pollack. Full text here. Understanding the interaction of international hard and soft law in a fragmented international law system is increasingly important in a world where international regimes are proliferating, but where there is no overarching legal hierarchy. This Article responds to the existing literature on hard and soft lawreview - Minnesota Law Review - [Response Article, Speaking of Silence: A Reply to Making Defendants Speak](https://minnesotalawreview.org/article/response-article-speaking-silence-reply-making-defendants-speak/) - By Donald P. Judges & Stephen J. Cribari. Full text here. In this invited reply to an article recently published in the Minnesota Law Review, we concentrate on explaining why we do not share that article’s underlying antipathy to the Fifth Amendment right to silence at trial. That antipathy, also frequently expressed by other commentators, is lawreview - Minnesota Law Review - [Note: Litigating the Contours of Constitutionality: Harmonizing Equitable Principles and Constitutional Values when Considering Preliminary Injunctive Relief](https://minnesotalawreview.org/article/note-litigating-contours-constitutionality-harmonizing-equitable-principles-constitutional-values-preliminary-injunctive-relief/) - By Ryan Griffin. Full text here. Preliminary injunctions are a frequently sought form of relief in public law litigation. However, federal courts are inconsistent in the tests they employ to grant or deny this relief. Two recent cases, Winter v. Natural Resources Defense Council and Planned Parenthood v. Rounds, highlight a particularly important doctrinal grey area: lawreview - Minnesota Law Review - [Note: Embryo Adoption: The Solution to an Ambiguous Intent Standard](https://minnesotalawreview.org/article/embryo-adoption-solution-ambiguous-intent-standard/) - By Molly Miller. Full text here. When a person or couple elects to use in vitro fertilization to create embryos they often end up with more embryos than they need. Most fertilization clinics now require these people to specify what they want done with the remaining embryos (destruction, storage, donation to science, or donation to others lawreview - Minnesota Law Review - [Counsel and Confrontation](https://minnesotalawreview.org/article/counsel-confrontation/) - By Todd E. Pettys. Full text here. In a well-known series of decisions handed down over the past five years, the Supreme Court has firmly yoked its interpretation of the Confrontation Clause to Anglo-American common-law principles that were in place at the time of the Sixth Amendment’s ratification in 1791. Based on its understanding of those lawreview - Minnesota Law Review - [Aggregating Probabilities Across Cases: Criminal Responsibility for Unspecified Offenses](https://minnesotalawreview.org/article/aggregating-probabilities-cases-criminal-responsibility-unspecified-offenses/) - By Alon Harel & Ariel Porat. Full text here. Should a court convict a defendant for unspecified offenses if there is no reasonable doubt that he committed an offense, even though no particular offense has been proven beyond a reasonable doubt? Suppose a defendant is charged with two unrelated offenses allegedly committed at different times and lawreview - Minnesota Law Review - [United States Competition Policy in Crisis: 1890-1955](https://minnesotalawreview.org/article/united-states-competition-policy-crisis-1890-1955/) - By Herbert Hovenkamp. Full text here. The development of marginalist, or neoclassical, economics led to a fifty-year long crisis in competition theory. Given an industrial structure with sufficient fixed costs, competition always became “ruinous,” forcing firms to cut prices to marginal cost without sufficient revenue remaining to pay off investment. Early neoclassicists such as Alfred Marshall lawreview - Minnesota Law Review - [Clawbacks: Prospective Contract Measures in an Era of Excessive Executive Compensation and Ponzi Schemes](https://minnesotalawreview.org/article/clawbacks-prospective-contract-measures-era-excessive-executive-compensation-ponzi-schemes/) - By Miriam A. Cherry & Jarrod Wong. Full text here. In the spring of 2009, public outcry erupted over the multi-million dollar bonuses paid to AIG executives even as the company was receiving TARP funds. Various measures were proposed in response, including a ninety percent retroactive tax on the bonuses, which the media described as a “clawback.” lawreview - Minnesota Law Review - [Note: From the Inside Out: Reforming State and Local Prostitution Enforcement to Combat Sex Trafficking in the United States and Abroad](https://minnesotalawreview.org/article/note-out-reforming-state-local-prostitution-enforcement-combat-sex-trafficking-united-states/) - By Moira Heiges. Full text here. Over the past eight years, federal and state governments have passed anti-trafficking laws and spent millions of dollars to combat sex trafficking. However, as evidenced by the minimal rate of convictions and the continually expanding sex trafficking market, these policies have not achieved proportionate results. This Note argues that without lawreview - Minnesota Law Review - [Note: The Curious Case of Disparate Impact Under the ADEA: Reversing the Theory's Development into Obsolescence](https://minnesotalawreview.org/article/note-curious-case-disparate-impact-adea-reversing-theorys-development-obsolescence/) - By R. Henry Pfutzenreuter IV. Full text here. The present state of the economy places the nation’s older worker in a perilous situation. Employers, motivated by either the appearance of economic incentives or age-related stereotypes, are apt to seek savings in cost via large-scale reductions-in-force. The factors relied upon in executing these internal restructurings often serve lawreview - Minnesota Law Review - [Note: Between the Possible and the Probable: Defining the Plausibility Standard After Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal](https://minnesotalawreview.org/article/probable-defining-plausibility-standard-bell-atlantic-corp-v-twombly-ashcroft-v-iqbal/) - By Nicholas Tymoczko. Full text here. After fifty years of clarity and continuity, pleading standards are now the subject of confusion and debate. In 2007, the Supreme Court, in Bell Atlantic Corp. v. Twombly, replaced Conley v. Gibson’s “no set of facts” standard with the plausibility standard, under which a complaint must contain enough factual allegations lawreview - Minnesota Law Review - [Note: Capturing the Ghost: Expanding Federal Rule of Civil Procedure 11 to Solve Procedural Concerns with Ghostwriting](https://minnesotalawreview.org/article/capturing-ghost-expanding-federal-rule-civil-procedure-11-solve-procedural-concerns-ghostwriting-2/) - By Jeffrey P. Justman. Full text here. The Federal Rules of Civil Procedure have not kept pace with the ways in which some lawyers are representing low-income litigants. For example, in its current form, Rule 11 only recognizes traditional “full scope” representation and purely pro se representation, without addressing the ever-increasing possibility that lawyers may represent lawreview - Minnesota Law Review - [The Accountable Executive](https://minnesotalawreview.org/article/accountable-executive/) - By Heidi Kitrosser. Full text here. lawreview - Minnesota Law Review - [Adaptive Federalism: The Case Against Reallocating Environmental Regulatory Authority](https://minnesotalawreview.org/article/adaptive-federalism-case-reallocating-environmental-regulatory-authority/) - By David E. Adelman & Kirsten H. Engel. Full text here. A hallmark of environmental federalism is that neither federal nor state governments limit themselves to what many legal scholars have deemed to be their appropriate domains. The federal government regulates local issues, such as remediation of contaminated industrial sites, while state and local governments develop lawreview - Minnesota Law Review - [An Anti-Authoritarian Constitution? Four Notes](https://minnesotalawreview.org/article/anti-authoritarian-constitution-notes/) - By Patrick O. Gudridge. Full text here. lawreview - Minnesota Law Review - [The Anticompetitive Effects of Underenforced Invalid Patents](https://minnesotalawreview.org/article/anticompetitive-effects-underenforced-invalid-patents/) - By Christopher R. Leslie. Full text here. Courts and scholars have long debated the proper balance between antitrust law and intellectual property rights. Proponents of strong intellectual property rights and those of vigilant antitrust enforcement often find themselves at opposite ends of the debate. Some scholars and intellectual property owners resist the encroachment of antitrust law lawreview - Minnesota Law Review - [Are Patents on Interfaces Impeding Interoperability?](https://minnesotalawreview.org/article/patents-interfaces-impeding-interoperability/) - By Pamela Samuelson. Full text here. Commentators and policymakers have frequently expressed serious concerns about the exclusionary potency of patents on communications protocols and interface designs for information and communications technologies (ICT). Among the proposed policy responses to potential harms arising from the exercise of such interface patents are excluding interfaces from patent protection, immunizing use lawreview - Minnesota Law Review - [Avalanche or Undue Alarm? An Empirical Study of Subpoenas Received by the News Media](https://minnesotalawreview.org/article/avalanche-undue-alarm-empirical-study-subpoenas-received-news-media/) - By RonNell Andersen Jones. Full text here. For more than thirty years, proponents and opponents of a federal reporter’s shield law have debated the necessity of a privilege for members of the news media and have disagreed sharply about the frequency with which subpoenas are issued to the press. Most recently, in the wake of several lawreview - Minnesota Law Review - [Exchange: The Behavioral Economics of Consumer Contracts](https://minnesotalawreview.org/article/exchange-behavioral-economics-consumer-contracts/) - By Oren Bar-Gill. Full text here. In the past decade, behavioral economics has established itself as a contender to the throne of neoclassical economics in the economic analysis of law. The pros and cons of behavioral as compared to neoclassical economics have been vigorously debated at the general, methodology level. But the success or failure of lawreview - Minnesota Law Review - [Beyond the Article I Horizon: Congress's Enumerated Powers and Universal Jurisdiction Over Drug Crimes](https://minnesotalawreview.org/article/article-horizon-congresss-enumerated-powers-universal-jurisdiction-drug-crimes/) - By Eugene Kontorovich. Full text here. The United States routinely apprehends foreign drug traffickers in international waters. It prosecutes many of them under the Maritime Drug Law Enforcement Act, which allows for jurisdiction even over foreign-flagged vessels with no demonstrable intent of bringing their cargo to the United States. This assertion of universal jurisdiction—a doctrine generally lawreview - Minnesota Law Review - [Beyond Incoherence: The Roberts Court's Deregulatory Turn in FEC v. Wisconsin Right to Life](https://minnesotalawreview.org/article/incoherence-roberts-courts-deregulatory-turn-fec-v-wisconsin-life/) - By Richard L. Hasen. Full text here. With the recent personnel changes on the Supreme Court, the pendulum has swung sharply away from deference in campaign finance regulation toward perhaps the greatest period of deregulation since before Congress passed the important 1974 Amendments to the Federal Election Campaign Act. In the 2006 Randall v. Sorrell decision, lawreview - Minnesota Law Review - [Beyond Liability: Rewarding Effective Gatekeepers](https://minnesotalawreview.org/article/liability-rewarding-effective-gatekeepers/) - By Lawrence A. Cunningham. Full text here. This Article adds to the emerging literature on rewards to promote effective capital market gatekeeping. Capital market gatekeeping theory traditionally relies heavily on threats of legal liability for failure to perform legally mandated functions (along with a presumed constraint imposed by reputation effects). The ineffectiveness of many gatekeepers in lawreview - Minnesota Law Review - [Note: Blight and Its Discontents: Awarding Attorney's Fees to Property Owners in Redevelopment Actions](https://minnesotalawreview.org/article/note-blight-discontents-awarding-attorneys-fees-property-owners-redevelopment-actions/) - By Noreen E. Johnson. Full text here. The public response to the now notorious 2005 Supreme Court decision Kelo v. City of New London changed the landscape of redevelopment law in the United States. In Kelo, the Court held that eminent domain could be used to transfer property from one private party to another private party lawreview - Minnesota Law Review - [The Bill of Rights in the Early State Courts](https://minnesotalawreview.org/article/bill-rights-early-state-courts/) - By Jason Mazzone. Full text here. The Bill of Rights originated as a constraint only on the federal government. As every law student learns, therefore, in the 1833 case of Barron v. Baltimore, the Supreme Court dismissed a Fifth Amendment takings claim against a state. This Article shows, however, that early state courts regularly invoked and lawreview - Minnesota Law Review - [Note: BONGHiTS4JESUS.COM? Scrutinizing Public School Authority over Student Cyberspeech Through the Lens of Personal Jurisdiction](https://minnesotalawreview.org/article/note-bonghits4jesus-com-scrutinizing-public-school-authority-student-cyberspeech-lens-personal-jurisdiction/) - By Kyle W. Brenton. Full text here. As more and more public school students express themselves via e-mail, instant messages, and online communities such as MySpace and Facebook, more and more school administrators reach beyond the schoolhouse gates to censor and punish that online expression. While First Amendment jurisprudence provides a framework for determining when a lawreview - Minnesota Law Review - [Note: Born (Not So) Free: Legal Limits on the Practice of Unassisted Childbirth or Freebirthing in the United States](https://minnesotalawreview.org/article/note-born-not-so-free-legal-limits-practice-unassisted-childbirth-freebirthing-united-states/) - By Anna Hickman. Full text here. Unassisted childbirth, also known as “freebirthing”—in which a woman intentionally gives birth without the aid of a physician or midwife—is gaining increased media attention in the United States and abroad. Proponents of the practice boast of its beauty, safety, and legality. Yet, the legal framework of unassisted childbirth is unclear. lawreview - Minnesota Law Review - [Can Our Culture Be Saved? The Future of Digital Archiving](https://minnesotalawreview.org/article/culture-saved-future-digital-archiving/) - By Diane Leenheer Zimmerman. Full text here. The enormous controversy generated by the Google Library project demonstrates three important points. First, the potential for digitization to protect works against loss or deterioration is tremendous. Second, digitization creates an opportunity to offer access to preserved works without regard to a user’s physical location—something that both promises lawreview - Minnesota Law Review - [A Certain Mongrel Court: Congress's Past Power and Present Potential To Reinforce the Supreme Court](https://minnesotalawreview.org/article/mongrel-court-congresss-power-present-potential-reinforce-supreme-court/) - By Ross E. Davies. Full text here. The conventional view is that the constitutional mandate that “[t]he judicial power of the United States shall be vested in one supreme Court” precludes legislation creating some sort of back-up Court. This reading is rooted in the idea that the word “one” in “one supreme Court” must be read lawreview - Minnesota Law Review - [The Child Protection Pretense: States' Continued Consignment of Newborn Babies to Unfit Parents](https://minnesotalawreview.org/article/child-protection-pretense-states-continued-consignment-newborn-babies-unfit-parents/) - By James G. Dwyer. Full text here. Major federal legislation since the mid-90s has embodied a philosophical shift away from trying to salvage grossly unfit parents and toward ensuring children good families before they incur permanently damaging abuse, neglect, or foster care drift. That legislation has created a widespread perception that the state is now more lawreview - Minnesota Law Review - [Citizen Journalism and the Reporter's Privilege](https://minnesotalawreview.org/article/citizen-journalism-reporters-privilege/) - By Mary-Rose Papandrea. Full text here. The reporter’s privilege is under attack, and “pajama-clad bloggers” are largely to blame. Courts and commentators have argued that because the rise of bloggers and other “citizen journalists” renders it difficult to define who should be considered a reporter entitled to invoke the privilege, the continued existence of the lawreview - Minnesota Law Review - [Claiming Innocence](https://minnesotalawreview.org/article/claiming-innocence/) - By Brandon L. Garrett. Full text here. The advent of DNA testing technology almost two decades ago transformed how courts review claims of innocence. Our system discarded rules of finality that traditionally barred most post-conviction claims of innocence. In recent years, almost every state has enacted post-conviction DNA statutes, which I survey here. Yet our criminal lawreview - Minnesota Law Review - [Note: Clear Support or Cause for Suspicion? A Critique of Collective Scienter in Securities Litigation](https://minnesotalawreview.org/article/note-clear-support-suspicion-critique-collective-scienter-securities-litigation/) - By Kevin M. O'Riordan. Full text here. This Note takes the position that emerging collective scienter theory may bar courts from attributing liability for securities fraud under SEC Rule 10b-5 directly to a corporation. Recent developments under the Private Securities Litigation Reform Act (PSLRA) seek to strengthen pleading standards in securities litigation by requiring that a lawreview - Minnesota Law Review - [Note: Compulsory Process and the War on Terror: A Proposed Framework](https://minnesotalawreview.org/article/note-compulsory-process-war-terror-proposed-framework/) - By Megan A. Healy. Full text here. The War on Terror has presented numerous questions never before examined in our constitutional jurisprudence. The challenges imposed on our legal system since 9/11 compel the judiciary to protect constitutional rights in the most difficult of circumstances. One of these challenges requires our civilian criminal justice system to reconcile lawreview - Minnesota Law Review - [Concordance and Conflict in Intuitions of Justice](https://minnesotalawreview.org/article/concordance-conflict-intuitions-justice/) - By Paul H. Robinson & Robert Kurzban. Full text here. The common wisdom among criminal law theorists and policy makers is that the notion of desert is vague and subject to wide disagreement. Yet the empirical evidence in available studies, including new studies reported here, paints a dramatically different picture. While moral philosophers may disagree on lawreview - Minnesota Law Review - [The "Duty" To Be a Rational Shareholder](https://minnesotalawreview.org/article/duty-rational-shareholder/) - By David A. Hoffman. Full text here. How and when do courts determine that corporate disclosures are actionable under the federal securities laws? The applicable standard is materiality: would a (mythical) reasonable investor have considered a given disclosure important. Through empirical and statistical testing of approximately 500 cases analyzing the materiality standard, Professor Hoffman concludes lawreview - Minnesota Law Review - [The Marshall Court and the Originalist's Dilemma](https://minnesotalawreview.org/article/marshall-court-originalists-dilemma/) - By Peter J. Smith. Full text here. In response to Anti-Federalist complaints that the Constitution was dangerous because it was ambiguous, James Madison and Alexander Hamilton argued that judges would construe the Constitution in the same manner that they construed statutes, and in the process would fix the meaning of ambiguous constitutional provisions. In other words, lawreview - Minnesota Law Review - [Comment: Giving Lawrence Its Due: How the Eleventh Circuit Underestimated the Due Process Implications of Lawrence v. Texas in Lofton v. Secretary of the Department of Children & Family Services](https://minnesotalawreview.org/article/comment-giving-lawrenece-due-eleventh-circuit-underestimated-due-process-implications-lawrence-v-texas-lofton-v-secretary-department-children-family-services/) - By Megan Backer. Full text here. John Doe was born an orphan. His life changed immediately when Steven Lofton adopted him. But John has no assurance that the State will allow him to remain with his family. Although John calls his foster father “Dad,” that will never be Steven Lofton’s legal title. John’s foster father is lawreview - Minnesota Law Review - [Substantive Due Process as a Source of Constitutional Protection for Nonpolitical Speech](https://minnesotalawreview.org/article/substantive-due-process-source-constitutional-protection-nonpolitical-speech/) - By Gregory P. Magarian. Full text here. Present First Amendment doctrine presumptively protects anything within the descriptive category “expression” from government regulation, subject to balancing against countervailing government interests. As government actions during the present War on Terrorism have made all too clear, that doctrine allows intolerable suppression of political debate and dissent—the expressive activity most lawreview - Minnesota Law Review - [Note: Meet Me at the (West Coast) Hotel: The Lochner Era and the Demise of Roe v. Wade](https://minnesotalawreview.org/article/note-meet-west-coast-hotel-lochner-era-demise-roe-v-wade/) - By Jason A. Adkins. Full text here. Long-standing constitutional precedents can be overturned when the original holdings have become “unworkable.” This principle, first articulated in Planned Parenthood of Southeastern Pennsylvania v. Casey and repeated by now-Chief Justice Roberts in his confirmation hearings, provides a creative means for overturning the most controversial precedent of all: Roe lawreview - Minnesota Law Review - [The Need for Mead: Rejecting Tax Exceptionalism in Judicial Deference](https://minnesotalawreview.org/article/mead-rejecting-tax-exceptionalism-judicial-deference/) - By Kristin E. Hickman. Full text here. This Article takes the controversial position that Treasury regulations are entitled to judicial deference under the Chevron doctrine, as clarified by the Supreme Court in the more recent Mead case, whether those regulations promulgated pursuant to specific authority delegated in a substantive provision of the Internal Revenue Code lawreview - Minnesota Law Review - [Government Regulation of Irrationality: Moral and Cognitive Hazards](https://minnesotalawreview.org/article/government-regulation-irrationality-moral-cognitive-hazards/) - By Jonathan Klick & Gregory Mitchell. Full text here. Behavioral law and economics scholars who advance paternalistic policy proposals typically employ static models of decision-making behavior, despite the dynamic effects of paternalistic policies. This Article considers how paternalistic policies fare under a dynamic account of decision making that incorporates learning and motivation effects. This approach brings lawreview - Minnesota Law Review - [Reformulating the Miranda Warnings in Light of Contemporary Law and Understandings](https://minnesotalawreview.org/article/reformulating-miranda-warnings-light-contemporary-law-understandings/) - By Mark A. Godsey. Full text here. Since Miranda v. Arizona was decided in 1966, scholars have devoted much attention to both the theoretical underpinnings and the real world impact of that decision. Little attention, however, has been paid to the substance or content of the warnings. The Supreme Court has often stated that the Miranda lawreview - Minnesota Law Review - [The Police Power Revisited: Phantom Incorporation and the Roots of the Takings "Muddle"](https://minnesotalawreview.org/article/police-power-revisited-phantom-incorporation-roots-takings-muddle/) - By Bradley C. Karkkainen. Full text here. Lingle v. Chevron U.S.A., Inc. exposed a deep flaw in regulatory takings doctrine. Lingle rejected the Agins holding that if a regulation does not "substantially advance a legitimate state interest," it is a compensable taking. That formulation, Lingle said, was based on substantive due process precedents and is better lawreview - Minnesota Law Review - [Introductory Essay, Political Constraints on Supreme Court Reform](https://minnesotalawreview.org/article/political-restraints-supreme-court-reform/) - By Adrian Vermeule. Full text here. lawreview - Minnesota Law Review - [The Political Constitution of Emergency Powers: Some Lessons from Hamdan](https://minnesotalawreview.org/article/political-constitution-emergency-powers-lessons-hamdan/) - By Mark Tushnet. Full text here. lawreview - Minnesota Law Review - ["Macro-Transparency" as Structural Directive: A Look at the NSA Surveillance Controversy](https://minnesotalawreview.org/article/macro-transparency-structural-directive-nsa-surveillance-controversy/) - By Heidi Kitrosser. Full text here. lawreview - Minnesota Law Review - [The Death of FISA](https://minnesotalawreview.org/article/death-fisa/) - By William C. Banks. Full text here. lawreview - Minnesota Law Review - [The Untold Story of al Qaeda's Administrative Law Dilemmas](https://minnesotalawreview.org/article/untold-story-al-qaedas-administrative-law-dilemmas/) - By Mariano-Florentino Cuéllar. Full text here. lawreview - Minnesota Law Review - [Hamdan and Common Article 3: Did the Supreme Court Get It Right?](https://minnesotalawreview.org/article/hamdan-common-article-3-supreme-court-right/) - By Fionnuala Ní Aoláin. Full text here. lawreview - Minnesota Law Review - [Immigration Reform, National Security After September 11, and the Future of North American Integration](https://minnesotalawreview.org/article/immigration-reform-national-security-september-11-future-north-american-integration/) - By Kevin R. Johnson & Bernard Trujillo. Full text here. lawreview - Minnesota Law Review - [The Preventive Paradigm and the Perils of Ad Hoc Balancing](https://minnesotalawreview.org/article/preventive-paradigm-perils-ad-hoc-balancing/) - By Jules Lobel. Full text here. lawreview - Minnesota Law Review - [Congress, the Supreme Court, and Enemy Combatants: How Lawmakers Buoyed Judicial Supremacy by Placing Limits on Federal Court Jurisdiction](https://minnesotalawreview.org/article/congress-supreme-court-enemy-combatants-lawmakers-buoyed-judicial-supremacy-placing-limits-federal-court-jurisdiction/) - By Neal Devins. Full text here. By turning a statute limiting court jurisdiction into a delegation of power by Congress to the Supreme Court, the Hamdan v. Rumsfeld opinion is a political masterstroke. This Essay explains why “the least dangerous branch” felt empowered to ignore congressional limits on its authority, repudiate presidentially created military tribunals, and lawreview - Minnesota Law Review - [A Theory of Copyright's Derivative Right and Related Doctrines](https://minnesotalawreview.org/article/theory-copyrights-derivative-related-doctrines/) - By Michael Abramowicz. Full text here. Although many copyrighted works are close substitutes for other copyrighted works, there would be many more close substitutes of certain works in the absence of the derivative right, the exclusive right to create adaptations of a copyrighted work. Yet even the derivative right’s defenders identify the suppression of new expression lawreview - Minnesota Law Review - [An Embedded Options Theory of Indefinite Contracts](https://minnesotalawreview.org/article/embedded-options-theory-indefinite-contracts/) - By George S. Geis. Full text here. Option theory is beginning to generate robust insights in the legal literature, and it is particularly well-suited to contract law. This Article develops an embedded options theory of indefinite contracts, focusing on the proper scope of the indefiniteness doctrine—a core principle of contract law invalidating contracts that are too lawreview - Minnesota Law Review - [Note: Establishing a Substantial Limitation in Interacting with Others: A Call for Clearer Guidance from the EEOC](https://minnesotalawreview.org/article/note-establishing-substantial-limitation-interacting-others-call-clearer-guidance-eeoc/) - By Lisa M. Benrud-Larson. Full text here. Congress enacted the Americans with Disabilities Act (ADA) with the goal of providing clear and consistent standards for eliminating discrimination against persons with disabilities. To be disabled within the meaning of the ADA, a person must have a physical or mental impairment that substantially limits a major life activity. lawreview - Minnesota Law Review - [Note: From House to Home: Creating a Right to Early Lease Termination for Domestic Violence Victims](https://minnesotalawreview.org/article/house-home-creating-early-lease-termination-domestic-violence-victims/) - By Anne C. Johnson. Full text here. Domestic violence remains one of society’s most pervasive and complicated problems. Among the complexities lies a victim’s difficult decision to leave an abuser. In an overwhelming majority of states, domestic violence victims also face the financial burden of terminating their residential leases when deciding to flee abuse. Such monetary lawreview - Minnesota Law Review - [Review Essay: The Limits of Their World](https://minnesotalawreview.org/article/review-essay-limits-world/) - By Robert Hockett. Full text here. lawreview - Minnesota Law Review - [Lecture: The Future of the Legal Profession](https://minnesotalawreview.org/article/lecture-future-legal-profession/) - By Robert A. Stein. Full text here. lawreview - Minnesota Law Review - [Permissive Rules of Professional Conduct](https://minnesotalawreview.org/article/permissive-rules-professional-conduct/) - By Bruce A. Green & Fred C. Zacharias. Full text here. In the wake of Enron’s collapse and other corporate scandals, the Securities and Exchange Commission considered adopting a regulation requiring lawyers in certain circumstances to publicly report corporate misconduct. The American Bar Association countered by expanding model disciplinary rules that allow, but do not require, lawreview - Minnesota Law Review - [Note: Evaluating the Integraty of Biotechnology Research Tools: Merck v. Integra and the Scope of 35 U.S.C. § 271(e)(1)](https://minnesotalawreview.org/article/note-evaluating-integraty-biotechnology-research-tools-merck-v-integra-scope-35-u-s-c-§-271e1/) - By Michael R. Mischnick. Full text here. Patents are critical in the biotechnology and pharmaceutical sectors. However, patents have inhibited competition in certain instances. For example, until the 1980s, pioneer drug companies benefited from a de facto “patent term windfall” because generic manufacturers could not begin the regulatory approval process of their generics until after lawreview - Minnesota Law Review - [What Doth It Profit? Pelikan's Parallels](https://minnesotalawreview.org/article/doth-profit-pelikans-parallels/) - By Steven D. Smith. Full text here. lawreview - Minnesota Law Review - [Note: "Don't Read This If It's Not For You": The Legal Inadequacies of Modern Approaches to E-mail Privacy](https://minnesotalawreview.org/article/note-dont-read-you-legal-inadequacies-modern-approaches-e-mail-privacy/) - By Joshua L. Colburn. Full text here. E-mail has become the cheap and reliable replacement for many forms of business and personal communication. Despite a lack of any significant advances in privacy laws or software, lawyers have surrendered their once vocal privacy concerns in favor of efficient communication. In an effort to minimize any remaining privacy lawreview - Minnesota Law Review - [Juveniles' Competence to Exercise Miranda Rights: An Empirical Study of Policy and Practice](https://minnesotalawreview.org/article/juveniles-competence-exercise-miranda-rights-empirical-study-policy-practice-2/) - By Barry C. Feld. Full text here. The Supreme Court does not require any special procedural safeguards when police interrogate youths. Instead, it uses the adult standard—“knowing, intelligent, and voluntary under the totality of the circumstances”—to gauge the validity of juveniles’ waivers of Miranda rights. Developmental psychologists have examined adolescents’ capacity to exercise or waive lawreview - Minnesota Law Review - [Tribute: Continuing the Path to Excellence: University of Minnesota Law School Dean Alex M. Johnson, Jr.](https://minnesotalawreview.org/article/tribute-continuing-path-excellence-university-minnesota-law-school-dean-alex-m-johnson-jr/) - By Edward S. Adams. Full text here. lawreview - Minnesota Law Review - [Third-Party Copyright Liability After Grokster](https://minnesotalawreview.org/article/third-party-copyright-liability-grokster/) - By Alfred C. Yen. Full text here. This Article studies the construction of third-party copyright liability after the recent Supreme Court case Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. This inquiry is important because third-party copyright liability has become a controversial area of law that affects the viability of entire industries. Unfortunately, the law governing third-party copyright lawreview - Minnesota Law Review - [Why the Defense of Marriage Act Is Not (Yet?) Unconstitutional: Lawrence, Full Faith and Credit, and the Many Societal Actors That Determine What the Constitution Requires](https://minnesotalawreview.org/article/defense-marriage-act-yet-unconstitutional-lawrence-full-faith-credit-societal-actors-determine-constitution-requires/) - By Mark D. Rosen. Full text here. When Hawaii seemed poised to be the first state in the Union to permit same-sex marriage in the 1990s, Congress passed the Defense of Marriage Act (DOMA). DOMA provides that states need not recognize same-sex marriages (or judgments in connection with such marriages) performed in sister states. Though many lawreview - Minnesota Law Review - [The Problem of Authority: Revisiting the Service Conception](https://minnesotalawreview.org/article/problem-authority-revisiting-service-conception/) - By Joseph Raz. Full text here. Why ought we subject our will to authority? How is a person with authority justified in demanding that we subject our will? What does it mean to be a legitimate authority? This is the problem of authority that Professor Raz addressed many years ago under the title of the lawreview - Minnesota Law Review - [Review Essay: A Psychology of Emotional Legal Decision Making: Revulsion and Saving Face in Legal Theory and Practice](https://minnesotalawreview.org/article/review-essay-psychology-emotional-legal-decision-making-revulsion-saving-face-legal-theory-practice/) - By Peter H. Huang and Christopher J. Anderson. Full review essay here. lawreview - Minnesota Law Review - [Note, Pharmacist Refusals: Dispensing (With) Religious Accomodation Under Title VII](https://minnesotalawreview.org/article/note-pharmacist-refusals-dispensing-with-religious-accomodation-title-vii/) - By Amy Bergquist. Full text here. Pharmacists with greater frequency are refusing to fill certain prescriptions on religious grounds. These employees contend that Title VII of the Civil Rights Act requires pharmacies to accommodate refusing pharmacists by allowing other pharmacists to fill objectionable prescriptions. Some employers embrace this view and accommodate refusing pharmacists by sending customers lawreview - Minnesota Law Review - [Note: Fruit of the Poison Tree: A First Amendment Analysis of the History and Character of Intelligent Design Education](https://minnesotalawreview.org/article/note-fruit-poison-tree-amendment-analysis-history-character-intelligent-design-education/) - By Todd R. Olin. Full text here. Since the famous Scopes Trial in 1925, religious groups have struggled to introduce into public school science education a theory of human origin predicated on a supernatural creator. The latest theory to challenge evolution is Intelligent Design. Although this theory makes no explicit reference to religion or God, it lawreview - Minnesota Law Review - [In Defense of Redistribution Through Private Law](https://minnesotalawreview.org/article/defense-redistribution-private-law/) - By Daphna Lewinsohn-Zamir. Full text here. Most people agree that enhancing individuals’ well-being and promoting equality among them are important goals of the state. Much more controversial, however, is the question of which means should be used to redistribute welfare. An ongoing debate centers on whether redistribution should be attained solely through taxes and transfer payments, lawreview - Minnesota Law Review - [The Jurisdictional Heritage of the Grand Jury Clause](https://minnesotalawreview.org/article/jurisdictional-heritage-grand-jury-clause/) - By Roger A Fairfax, Jr. Full text here. For the first 150 years of our constitutional history, a valid grand jury indictment was deemed to be a mandatory prerequisite to a federal court’s exercise of criminal subject matter jurisdiction. Under that view of the Grand Jury Clause, a defendant in a federal felony case could neither lawreview - Minnesota Law Review - [Terms of Use](https://minnesotalawreview.org/article/terms/) - By Mark A. Lemley. Full text here. Electronic contracting has experienced a sea change in the last decade. Ten years ago, courts required affirmative evidence of agreement to form a contract. No court had enforced a “shrinkwrap” license, much less treated a unilateral statement of preferences as a binding agreement. Today, by contrast, it seems widely lawreview - Minnesota Law Review - [Note: From Deference to Restraint: Using the Chevron Framework to Evaluate Presidential Signing Statements](https://minnesotalawreview.org/article/note-deference-restraint-chevron-framework-evaluate-presidential-signing-statements/) - By David C. Jenson. Full text here. Presidential signing statements are creeping into judicial opinions with increasing frequency, leading to a resurgence of interest in the issue and several attempts, by Congress and others, to limit the use of signing statements or to challenge their constitutionality. This Note contends that the paramount separation of powers concern lawreview - Minnesota Law Review - [Immigration Law and the Regulation of Marriage](https://minnesotalawreview.org/article/immigration-law-regulation-marriage/) - By Kerry Abrams. Full text here. This Article argues that much of federal immigration law functions as a form of family law. Although conventional wisdom holds that family law is state law, federal immigration law actually regulates marriages that involve immigrants much more extensively than state family law does, and often unintentionally. This Article maps the lawreview - Minnesota Law Review - [The Rule of Law and the Law of Precedents](https://minnesotalawreview.org/article/rule-law-law-precedents/) - By Daniel A. Farber. Full text here. lawreview - Minnesota Law Review - [Super Precedent](https://minnesotalawreview.org/article/super-precedent/) - By Michael J. Gerhardt. Full text here. lawreview - Minnesota Law Review - [It's a Bird, It's a Plane, No, It's Super Precedent: A Response to Farber and Gerhardt](https://minnesotalawreview.org/article/bird-plane-no-super-precedent-response-farber-gerhardt/) - By Randy E. Barnett. Full text here. lawreview - Minnesota Law Review - [Representative Government, Representative Court? The Supreme Court as a Representative Body](https://minnesotalawreview.org/article/representative-government-representative-court-supreme-court-representative-body/) - By Angela Onwuachi-Willig. Full text here. lawreview - Minnesota Law Review - [Foreword, The Future of the Supreme Court: Institutional Reform and Beyond](https://minnesotalawreview.org/article/foreword-future-supreme-court-institutional-reform/) - By David R. Stras and Karla Vehrs. Full text here. lawreview - Minnesota Law Review - [When is Knowing Less Better Than Knowing More? Unpacking the Controversy over Supreme Court Reference to Non-U.S. Law](https://minnesotalawreview.org/article/knowing-knowing-more-unpacking-controversy-supreme-court-reference-non-u-s-law/) - By Mark Tushnet. Full text here. lawreview - Minnesota Law Review - [The Supreme Court, the Rules Enabling Act, and the Politicization of the Federal Rules: Constitutional and Statutory Implications](https://minnesotalawreview.org/article/supreme-court-rules-enabling-act-politicization-federal-rules-constitutional-statutory-implications/) - By Martin H. Redish and Uma M. Amuluru. Full text here. lawreview - Minnesota Law Review - [Should the Supreme Court Fear Congress?](https://minnesotalawreview.org/article/supreme-court-fear-congress/) - By Neal Devins. Full text here. lawreview - Minnesota Law Review - [The Supreme Court and Its Shrinking Docket: The Ghost of William Howard Taft](https://minnesotalawreview.org/article/supreme-court-shrinking-docket-ghost-william-howard-taft/) - By Kenneth W. Starr. Full text here. lawreview - Minnesota Law Review - [Reintroducing Circuit Riding: A Timely Proposal](https://minnesotalawreview.org/article/reintroducing-circuit-riding-timely-proposal/) - By Steven G. Calabresi and David C. Presser. Full text here. lawreview - Minnesota Law Review - [The Incentives Approach to Judicial Retirement](https://minnesotalawreview.org/article/incentives-approach-judicial-retirement/) - By David R. Stras. Full text here. lawreview - Minnesota Law Review - [Note: Embracing Equity: A New Remedy for Wrongful Health Insurance Denials](https://minnesotalawreview.org/article/note-embracing-equity-remedy-wrongful-health-insurance-denials/) - By E. Daniel Robinson. Full text here. Through benefit decisions, health insurance companies have the power to refuse treatment to insured persons. Individuals harmed by denials that are unjustified or violate the insurance contract may have no recourse. The federal Employee Retirment Income Secuirty Act (ERISA) governs all health insurance plans provided through employers. With ERISA, lawreview - Minnesota Law Review - [Note: Determining a Corporation's Principal Place of Business: A Uniform Approach to Diversity Jurisdiction](https://minnesotalawreview.org/article/note-determining-corporations-principal-place-business-uniform-approach-diversity-jurisdiction/) - By Lindsey D. Saunders. Full text here. For purposes of federal diversity jurisdiction under 28 U.S.C. § 1332, a corporation is a citizen of both its state of incorporation and the state where it has its principal place of business. In adopting that provision, Congress provided very little guidance to the federal courts as to the method lawreview - Minnesota Law Review - [Note: Increasing E-Quality in Rural America: U.S. Spectrum Policy and Adverse Possession](https://minnesotalawreview.org/article/increasing-e-quality-rural-america-u-s-spectrum-policy-adverse-possession/) - By Lindsey L. Tonsager. Full text here. The United States is undergoing a communications revolution. Analog services are replacing digital, and broadband and mobile telephones are replacing dial-up and line lines. Businesses, educational institutions, consumers, and the public safety community increasingly rely on cheaper, faster, and always-on communications services that allow them to transmit voice, video, lawreview - Minnesota Law Review - [Introduction, Introduction to Socratic Method and the Irreducible Core of Legal Education](https://minnesotalawreview.org/article/introduction-introduction-socratic-method-irreducible-core-legal-education/) - By David Weissbrodt. Full text here. lawreview - Minnesota Law Review - [Justice Holmes, Buck v. Bell, and the History of Equal Protection](https://minnesotalawreview.org/article/justice-holmes-buck-v-bell-history-equal-protection/) - By Stephen A. Siegel. Full text here. Most everything Justice Holmes said in upholding eugenic sterilization in Buck v. Bell has been extensively criticized. However, his impatient response to Carrie Buck’s equal protection claim, dismissing it as “the usual last resort of constitutional arguments,” is still believed to be an accurate depiction of the equal protection lawreview - Minnesota Law Review - [Lecture, Socratic Method and the Irreducible Core of Legal Education](https://minnesotalawreview.org/article/lecture-socratic-method-irreducible-core-legal-education/) - By Donald G. Marshall. Full text here. lawreview - Minnesota Law Review - [Retaliation](https://minnesotalawreview.org/article/retaliation/) - By Deborah L. Brake. Full text here. This Article takes a comprehensive look at retaliation and its place in discrimination law. The Article begins by examining current social science literature to understand how retaliation operates as a social practice to silence challenges to discrimination and preserve inequality. Then, using the recent controversy over whether to imply lawreview - Minnesota Law Review - [Playing with "Monopoly Money": Phony Profits, Fraud Penalties and Equity](https://minnesotalawreview.org/article/playing-monopoly-money-phony-profits-fraud-penalties-equity/) - By Craig M. Boise. Full text here. Although most U.S. corporations do not pay federal income taxes, over the last several years some corporations have been willing to report, and shell out to the Treasury, hundreds of millions of dollars in taxes that they did not owe. They did so to conceal the fact that they lawreview - Minnesota Law Review - [Note: Tax Increment Financing: Public Use or Private Abuse?](https://minnesotalawreview.org/article/note-tax-increment-financing-public-private-abuse/) - By Alyson Tomme. Full text here. In cities across the country, tax increment financing has grown substantially as a tool to promote economic development. Also known as TIF, this public financing method designates an area as a TIF district and subsequently freezes the tax base at a given year’s level. Any tax revenue generated above that lawreview - Minnesota Law Review - [Punitive Damages and Valuing Harm](https://minnesotalawreview.org/article/punitive-damages-valuing-harm/) - By Alexandra B. Klass. Full text here. In 2003, the Supreme Court created a presumption that only single-digit ratios of punitive damages to compensatory damages would satisfy substantive due process limits. The Court also created an exception to this presumption, applicable when the defendant’s misconduct results in only a small amount of compensatory damages or lawreview - Minnesota Law Review - [Integrating Investment Treaty Conflict and Dispute Systems Design](https://minnesotalawreview.org/article/integrating-investment-treaty-conflict-dispute-systems-design/) - By Susan D. Franck. Full text here. The debate on the renewal of the Trade Promotion Authority Act has brought public scrutiny to the terms of investment treaties—including dispute resolution provisions. In a so-called litigation explosion, investors resolve disputes against host governments through international arbitration mechanisms in investment treaties, and there is little evidence of reliance lawreview - Minnesota Law Review - [Note: To Fix or Not to Fix: Copyright's Fixation Requirement and the Rights of Theoretical Collaborators](https://minnesotalawreview.org/article/note-fix-fix-copyrights-fixation-requirement-rights-theoretical-collborators/) - By Carrie Ryan Gallia. Full text here. Despite its typical responsiveness to technological advances, copyright law has not kept pace with the emergence of the director as the primary player in American theater, leaving the contributions of this essential, creative artist without recognition or protection. Because work must be original, authored, and fixed to warrant lawreview - Minnesota Law Review - [Minimum Wages and Low-Wage Workers: How Well Does Reality Match the Rhetoric?](https://minnesotalawreview.org/article/minimum-wages-low-wage-workers-reality-match-rhetoric/) - By David Neumark & William Wascher. Full text here. lawreview - Minnesota Law Review - [Representing Low-Wage Workers in the Absence of a Class: The Peculiar Case of Section 16 of the Fair Labor Standards Act and the Underenforcement of Minimum Labor Standards](https://minnesotalawreview.org/article/representing-low-wage-workers-absence-class-peculiar-case-section-16-fair-labor-standards-act-underenforcement-minimum-labor-standards/) - By Craig Becker & Paul Strauss. Full text here. lawreview - Minnesota Law Review - [Counting What Matters: Privatization, People with Disabilities, and the Cost of Low-Wage Work](https://minnesotalawreview.org/article/counting-matters-privatization-people-disabilities-cost-low-wage-work/) - By Ellen Dannin. Full text here. lawreview - Minnesota Law Review - [The Publicization of Home-Based Care Work in State Labor Law](https://minnesotalawreview.org/article/publicization-home-based-care-work-state-labor-law/) - By Peggie R. Smith. Full text here. lawreview - Minnesota Law Review - [Remedies for Undocumented Noncitizens in the Workplace: Using International Law to Narrow the Holding of Hoffman Plastic Compounds, Inc. v. NLRB](https://minnesotalawreview.org/article/remedies-undocumented-noncitizens-workplace-international-law-narrow-holding-hoffman-plastic-compounds-v-nlrb/) - By David Weissbrodt. Full text here. lawreview - Minnesota Law Review - [Labor Law After Legalization](https://minnesotalawreview.org/article/labor-law-legalization/) - By Michael J. Wishnie. Full text here. lawreview - Minnesota Law Review - [How Wal-Mart Fights Unions](https://minnesotalawreview.org/article/wal-mart-fights-unions/) - By Nelson Lichtenstein. Full text here. lawreview - Minnesota Law Review - [Preemption and Civic Democracy in the Battle over Wal-Mart](https://minnesotalawreview.org/article/preemption-civic-democracy-battle-wal-mart/) - By Catherine L. Fisk & Michael M. Oswalt. Full text here. lawreview - Minnesota Law Review - [Note: A Mock Funeral for a First Amendment Double Standard: Containing Coercion in Secondary Labor Boycotts](https://minnesotalawreview.org/article/mock-funeral-amendment-double-standard-coercion-secondary-labor-boycotts/) - By Dan Ganin. Full text here. The secondary boycott provision of the National Labor Relations Act prohibits labor unions from using coercive tactics to induce “neutral” parties to sever economic ties with others. Although the judiciary has failed to clearly delineate the concept of coercion, secondary labor picketing has been deemed categorically coercive and subject lawreview - Minnesota Law Review - [Note: Toward a Robust Separation of Powers: Recapturing the Judiciary's Role at Sentencing](https://minnesotalawreview.org/article/robust-separation-powers-recapturing-judiciarys-role-sentencing/) - By Hans H. Grong. Full text here. Twenty years ago, Congress fundamentally changed the procedure for sentencing criminal defendants in the federal system by creating the United States Sentencing Commission to promulgate the Federal Sentencing Guidelines. The Guidelines were an attempt to increase transparency and decrease disparities in criminal sentences. Unfortunately, as the Supreme Court recognized lawreview - Minnesota Law Review - [State Habeas Relief for Federal Extrajudicial Detainees](https://minnesotalawreview.org/article/state-habeas-relief-federal-extrajudicial-detainees/) - By Todd E. Pettys. Full text here. Nearly 150 years ago, the United States Supreme Court rebuffed efforts by the Wisconsin Supreme Court to free an abolitionist and an unhappy teenaged soldier from federal confinement. Since that point in history, it has been widely understood that state courts lack the power to grant habeas relief to lawreview - Minnesota Law Review - [Judicial Interpretation in the Cost-Benefit Crucible](https://minnesotalawreview.org/article/judicial-interpretation-cost-benefit-crucible/) - By Jonathan R. Siegel. Full text here. Professor Adrian Vermeule’s new book, Judging Under Uncertainty, argues that while no one can empirically determine whether any net benefits arise from judicial use of legislative history or other interpretive methods that go beyond simple enforcement of plain text, such interpretive methods do impose substantial costs. Vermeule concludes, lawreview - Minnesota Law Review - [A New Vision of Public Enforcement](https://minnesotalawreview.org/article/vision-public-enforcement/) - By Michael Waterstone. Full text here. Civil rights laws are not self-enforcing. Enforcement mechanisms, therefore, need to be studied as part of the larger debate on the form and direction of civil rights law. The current decline of the ability of the private attorney general to fairly and consistently enforce our civil rights laws strengthens the lawreview - Minnesota Law Review - [Note: No Free Parking: Obtaining Relief from Trademark-Infringing Domain Name Parking](https://minnesotalawreview.org/article/free-parking-obtaining-relief-trademark-infringing-domain-parking/) - By Elizabeth M. Flanagan. Full text here. Trademarks are indispensable tools for businesses and consumers. Although the Internet serves as an efficient means for distributing trademark-related information, it nevertheless provides a platform that can reduce the value of trademarks. In particular, commercial domain name parking—the practice of registering domain names and setting up placeholder websites filled lawreview - Minnesota Law Review - [Note: How the Presumption Against Extraterritoriality Has Created a Gap in Environmental Protection at the 49th Parallel](https://minnesotalawreview.org/article/presumption-extraterritoriality-created-gap-environmental-protection-49th-parallel/) - By João C. J. G. de Medeiros. Full text here. Harmful pollutants are crossing the United States-Canada border as actors on either side of the boundary export environmental risk and harm through transboundary rivers. However, public international law has been unable to provide a remedy for the problem. Furthermore, efforts to address the problem in national lawreview - Minnesota Law Review - [Note: Modernizing Medicare: Protecting America's Most Vulnerable Patients from Predatory Health Care Marketing Through Accessible Legal Remedies](https://minnesotalawreview.org/article/modernizing-medicare-protecting-americas-vulnerable-patients-predatory-health-care-marketing-accessible-legal-remedies/) - By Elizabeth C. Borer. Full text here. Increasingly, senior citizens throughout the United States are victimized by aggressive and fraudulent health care marketing practices. Medicare Advantage and Part D prescription drug plans are health-benefit options approved by the federal government but sold and administered by private insurance companies. The programs were created as part of the lawreview - Minnesota Law Review - [The Legacy of Bryan v. Itasca County: How an Erroneous $147 County Tax Notice Helped Bring Tribes $200 Billion in Indian Gaming Revenue](https://minnesotalawreview.org/article/legacy-bryan-v-itasca-county-erroneous-147-county-tax-notice-helped-bring-tribes-200-billion-indian-gaming-revenue/) - By Kevin K. Washburn. Full text here. The Supreme Court’s landmark 1976 decision in Bryan v. Itasca County is known within Indian law academia for the story Professors Philip Frickey and William Eskridge tell about the case: it reflects the dynamic and pragmatic interpretation of a termination-era statute to limit termination’s harmful legacy during a more lawreview - Minnesota Law Review - [Amending the Exceptions Clause](https://minnesotalawreview.org/article/amending-exceptions-clause-2/) - By Joseph Blocher. Full text here. Jurisdiction stripping is the new constitutional amendment, and the Exceptions Clause is the new Article V. But despite legal academia’s long-running obsessions with the meaning of constitutional amendment and the limits (if any) on Congress’s power to control federal jurisdiction, we still lack even a basic understanding of how these lawreview - Minnesota Law Review - [Usury Law, Payday Loans, and Statutory Sleight of Hand: Salience Distortion in American Credit Pricing Limits](https://minnesotalawreview.org/article/usury-law-payday-loans-statutory-sleight-hand-salience-distortion-american-credit-pricing-limits/) - By Christopher L. Peterson. Full text here. In the Western intellectual tradition usury law has historically been the foremost bulwark shielding consumers from harsh credit practices. In the past, the United States commitment to usury law has been deep and consistent. However, the recent rapid growth of the “payday” loan industry belies this longstanding American tradition. lawreview - Minnesota Law Review - [Essay: Substantive Equality: A Perspective](https://minnesotalawreview.org/article/essay-substantive-equality-perspective/) - By Catharine A. MacKinnon. Full text here. lawreview - Minnesota Law Review - [Tort Law and the American Economy](https://minnesotalawreview.org/article/tort-law-american-economy/) - By Frank B. Cross. Full text here. Claims that tort law is hampering the American economy are common and have produced various forms of tort reform legislation. Yet there is very little economic research on the consequences of existing tort law doctrines. Theoretically, at least, tort law can be economically beneficial. Two state-specific measures have been lawreview - Minnesota Law Review - [Rights for Sale](https://minnesotalawreview.org/article/rights-sale/) - By Tsilly Dagan & Talia Fisher. Full text here. Individuals enjoy a host of rights in relation to the government, including voting rights, the right against self-incrimination, the right to public education, pollution quotas, as well as various subsidies and tax attributes. Should individuals be able to sell these public entitlements to others? Markets for voting lawreview - Minnesota Law Review - [Beyond Crime and Commitment: Justifying Liberty Deprivations of the Dangerous and Responsible](https://minnesotalawreview.org/article/crime-commitment-justifying-liberty-deprivations-dangerous-responsible/) - By Kimberly Kessler Ferzan. Full text here. The traditional approaches to dangerous persons are crime and commitment. The criminal law punishes responsible actors, and the civil law confines the mentally ill. These approaches leave a gap: the state cannot substantially restrict the liberty of responsible actors until they have committed a crime. In response to this lawreview - Minnesota Law Review - [Public Choice and International Law Compliance: The Executive Branch Is a "They," Not an "It"](https://minnesotalawreview.org/article/public-choice-international-law-compliance-executive-branch-they-it/) - By Neomi Rao. Full text here. This Article presents a public choice analysis of how the executive branch in the United States determines questions of compliance with international law. In contrast to traditional theories that treat the state as a unitary entity, the public choice approach examines the different interests and incentives of the many executive lawreview - Minnesota Law Review - [Note: Who Are They to Judge?: The Constitutionality of Delegations by Courts to Probation Officers](https://minnesotalawreview.org/article/judge-constitutionality-delegations-courts-probation-officers/) - By Mark Thomson. Full text here. In order to promote judicial economy, Article III courts routinely delegate decisionmaking authority to probation officers. Probationers increasingly challenge those delegations as violating the Constitution’s command that only Article III judges shall exercise “the Judicial power.” Courts apply either of two standards when evaluating the constitutionality of judicial delegations to lawreview - Minnesota Law Review - [Note: The Sartorial Dilemma of Knockoffs: Protecting Moral Rights without Disturbing the Fashion Dynamic](https://minnesotalawreview.org/article/sartorial-dilemma-knockoffs-protecting-moral-rights-disturbing-fashion-dynamic/) - By Margaret E. Wade. Full text here. As soon as fashion models hit the runway, copycat designers snap photos and quickly replicate the original designs, flooding the market with nearly identical, discount versions of the original garments. In response to this phenomenon of fashion piracy, members of the fashion design community have been advocating for a lawreview - Minnesota Law Review - [The Myth of Self-Regulation](https://minnesotalawreview.org/article/myth-self-regulation/) - By Fred C. Zacharias. Full text here. The American legal profession is highly regulated. Lawyers are governed by state-enforced professional codes, supervised by courts, and constrained by civil liability rules, civil and criminal statutes, and administrative standards. Nevertheless, commentators and various actors in the legal system continue to conceptualize law as a “self-regulated profession.” The lawreview - Minnesota Law Review - [Reason-Giving and Accountability](https://minnesotalawreview.org/article/reason-giving-accountability/) - By Glen Staszewski. Full text here. This Article explains that elected officials are not politically accountable for their specific policy decisions in the manner that is typically envisioned by modern public law. It claims, however, that public officials in a democracy can be held deliberatively accountable by a requirement or expectation that they give reasoned explanations lawreview - Minnesota Law Review - [Making Defendants Speak](https://minnesotalawreview.org/article/making-defendants-speak/) - By Ted Sampsell-Jones. Full text here. Criminal defendants have the constitutional right to choose between testifying and remaining silent at trial. Within that broad constitutional framework, many legal rules affect the defendant’s decision. Some rules burden testimony and encourage silence, while others burden silence and encourage testimony. There is no way for the state to be lawreview - Minnesota Law Review - [Note: Unexpected Consequences: The Constitutional Implications of Federal Prison Policy for Offenders Considering Abortion](https://minnesotalawreview.org/article/note-unexpected-consequences-constitutional-implications-federal-prison-policy-offenders-abortion/) - By Claire Deason. Full text here. As many as 6,000 women are pregnant in prison in the United States. The option of abortion is particularly suited for these women, who struggle with public assistance, drug addiction, or who are at risk of losing their child to the foster system. The Bureau of Prisons policies governing abortion lawreview - Minnesota Law Review - [Note: Accepting Justice Kennedy's Challenge: Reviving Race-Conscious School Assignments in the Wake of Parents Involved](https://minnesotalawreview.org/article/accepting-justice-kennedys-challenge-reviving-race-conscious-school-assignments-wake-parents-involved/) - By Charles E. Dickinson. Full text here. More than half a century after Brown v. Board of Education mandated an end to racial segregation in American schools, districts nationwide remain crippled by racially homogenous classrooms and a widening achievement gap between white and minority students. Racial segregation is rising, minority student achievement is falling, and race-neutral lawreview - Minnesota Law Review - [Reclaiming International Law from Extraterritoriality](https://minnesotalawreview.org/article/reclaiming-international-law-extraterritoriality/) - By Austen L. Parrish. Full text here. A fierce debate rages among leading international law theorists that implicates the role of national courts in solving global challenges. On one side of the debate are scholars who are critical of international law and its institutions. These scholars, often referred to as Sovereigntists, see international law as a lawreview - Minnesota Law Review - [Privatizing Ethics in Corporate Reorganizations](https://minnesotalawreview.org/article/privatizing-ethics-corporate-reorganizations/) - By A. Mechele Dickerson. Full text here. For several years, bankruptcy and corporate governance scholars have discussed “control rights” in bankruptcy cases and have debated how those rights should be allocated. Data indicate that, as a positive matter, creditors effectively have the ability to decide the fate of an insolvent firm. The scholarship does not, however, lawreview - Minnesota Law Review - [Natural Laws and Inevitable Infringement](https://minnesotalawreview.org/article/natural-laws-inevitable-infringement/) - By Alan L. Durham. Full text here. According to well-established principles, one cannot patent natural laws or phenomena per se, but one can patent new and useful applications of those laws and phenomena. Justice Breyer’s opinion in Laboratory Corp. of America Holdings v. Metabolite Laboratories, Inc. applies this distinction to inventions exploiting natural relationships, such as lawreview - Minnesota Law Review - [Do Courts Create Moral Hazard?: When Judges Nullify Employer Liability in Arbitrations](https://minnesotalawreview.org/article/courts-create-moral-hazard-judges-nullify-employer-liability-arbitrations/) - By Michael H. LeRoy. Full text here. State courts are creating conditions for moral hazard in the arbitration of employment disputes. The problem begins when employers compel individuals to arbitrate their legal claims, denying them access to juries and other benefits of a trial. This empirical study identifies a disturbing trend: state courts vacated many arbitration lawreview - Minnesota Law Review - [Note: Prosecutorial Use of Forensic Science at Trial: When Is a Lab Report Testimonial?](https://minnesotalawreview.org/article/note-prosecutorial-forensic-science-trial-lab-report-testimonial/) - By Joe Bourne. Full text here. Since Crawford v. Washington, the Confrontation Clause has protected criminal defendants from testimonial hearsay statements. Less clear is what “testimonial” means. Lower courts have split on the question of whether scientific evidence is testimonial, struggling to apply Supreme Court cases decided in very different contexts to the generation of laboratory lawreview - Minnesota Law Review - [Note: Sweetening the Deal: Strengthening Transnational Bribery Laws Through Standard International Corporate Auditing Guidelines](https://minnesotalawreview.org/article/note-sweetening-deal-strengthening-transnational-bribery-laws-standard-international-corporate-auditing-guidelines/) - By Timothy W. Schmidt. Full text here. Despite the existence of laws on the books against transnational bribery in most developed nations, prosecution of the crime is oftentimes half hearted. This Note explores a number of options to promote the punishment of corrupt businesses that bribe foreign officials, even when the prosecution of these businesses might lawreview - Minnesota Law Review - [Note: Presuming Innocence: Expanding the Confrontation Clause Analysis to Protect Children and Defendants in Child Sexual Abuse Prosecutions](https://minnesotalawreview.org/article/presuming-innocence-expanding-confrontation-clause-analysis-protect-children-defendants-child-sexual-abuse-prosecutions/) - By Anna Richey-Allen. Full text here. When a child is suspected of being sexually abused, child advocacy centers provide a supportive environment where social workers, doctors, and psychologists may assess the child’s needs. Forensic interviews are a specialty of the centers. The interviews are often video recorded, and the videotape may later be introduced into evidence. lawreview - Minnesota Law Review - [Essay, Protecting Financial Markets: Lessons from the Subprime Morgage Meltdown](https://minnesotalawreview.org/article/essay-protecting-financial-markets-lessons-subprime-morgage-meltdown/) - By Steven L. Schwarcz. Full text here. Why did the recent subprime mortgage meltdown undermine financial-market stability notwithstanding the protections provided by market norms and financial regulation? This Essay attempts to answer that question by identifying anomalies and obvious protections that failed by examining hypotheses that might explain the anomalies and failures. Although some of the lawreview - Minnesota Law Review - [Horizontal Federalism](https://minnesotalawreview.org/article/horizontal-federalism/) - By Allan Erbsen. Full text here. This Article constructs frameworks for analyzing federalism’s undertheorized horizontal dimension. Discussions of federalism generally focus on the hierarchical (or vertical) allocation of power between the national and state governments while overlooking the horizontal allocation of power among coequal states. Models of federal-state relations tend to treat the fifty states as lawreview - Minnesota Law Review - [The Mythical Divide Between Collateral and Direct Consequences of Criminal Convictions: Involuntary Commitment of "Sexually Violent Predators"](https://minnesotalawreview.org/article/mythical-divide-collateral-direct-consequences-criminal-convictions-involuntary-commitment-sexually-violent-predators/) - By Jenny Roberts. Full text here. For many people convicted of crimes, the case does not end when the sentence is over. Instead, it follows them out of the courthouse or prison doors in the guise of “collateral,” or non-penal, sanctions. The last several decades have seen unprecedented expansion in the number and severity of the lawreview - Minnesota Law Review - [Note: When the Invention Is an Inventor: Revitalizing Patentable Subject Matter to Exclude Unpredictable Processes](https://minnesotalawreview.org/article/note-invention-inventor-revitalizing-patentable-subject-matter-exclude-unpredictable-processes/) - By Peter M. Kohlhepp. Full text here. Abstract inventions continue to confound the patent system. Several recent Federal Circuit decisions have only added to the uncertainty surrounding limitations on the type of inventions that may be patented. Computer algorithms capable of independent, artificial creativity provide a useful case study, revealing weaknesses in the law governing patentable lawreview - Minnesota Law Review - [Essay: The Constitution in the National Surveillance State](https://minnesotalawreview.org/article/essay-constitution-national-surveillance-state/) - By Jack M. Balkin. Full text here. During the last part of the twentieth century the United States began developing a new form of governance that features the collection, collation, and analysis of information about populations both in the United States and around the world. This new form of governance is the National Surveillance State. In lawreview - Minnesota Law Review - [The Rules Enabling Act and the Procedural-Substantive Tension: A Lesson in Statutory Interpretation](https://minnesotalawreview.org/article/rules-enabling-act-procedural-substantive-tension-lesson-statutory-interpretation/) - By Martin H. Redish & Dennis Murashko. Full text here. For more than seven decades since the passage of the Rules Enabling Act, courts and commentators have struggled to define the boundaries of what rules the Supreme Court can and cannot promulgate. We undertake here to explain that lack of success and at the same time lawreview - Minnesota Law Review - [Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change](https://minnesotalawreview.org/article/fighting-women-military-sex-extrajudicial-constitutional-change/) - By Jill Elaine Hasday. Full text here. The Supreme Court in Rostker v. Goldberg (1981) upheld male-only military registration, and endorsed male-only conscription and combat positions. Few cases have challenged restrictions on women’s military service since Rostker, and none have reached the Supreme Court. Federal statutes continue to exclude women from military registration and draft eligibility, lawreview - Minnesota Law Review - [Generous to a Fault? Fair Shares and Charitable Giving](https://minnesotalawreview.org/article/miranda-perry-fleischer/) - By Miranda Perry Fleischer. Full text here. Charities play a vital role in our society. In addition to enhancing pluralism, they meet many societal needs more efficiently, creatively, and effectively than government alone. Charities aid our poor, teach our youth, improve our health, comfort us spiritually, and enrich our cultural lives. Given the charitable sector’s importance lawreview - Minnesota Law Review - [The Quiet Revolution Revived: Sustainable Design, Land Use Regulation, and the States](https://minnesotalawreview.org/article/quiet-revolution-revived-sustainable-design-land-regulation-states/) - By Sara C. Bronin. Full text here. Thirty-seven years ago, a book called The Quiet Revolution in Land Use Control argued that states would soon take over localities’ long-held power over land use regulation. In the authors’ view, this quiet revolution would occur when policymakers and the public recognized that certain problems—like environmental destruction—were too big lawreview - Minnesota Law Review - [Note: Gagging on the First Amendment: Assessing Challenges to the Reauthorization Act's Nondisclosure Provision](https://minnesotalawreview.org/article/note-gagging-amendment-assessing-challenges-reauthorization-acts-nondisclosure-provision/) - By Kyle Hawkins. Full text here. In September, 2007, a federal court struck down the nondisclosure provisions of the Electronic Communications Privacy Act (ECPA), which governed the use of national security letters (NSLs). While civil liberties groups praised the decision, the FBI mourned the loss of a crucial tool in its antiterrorism investigations. Indeed, the FBI lawreview - Minnesota Law Review - [Note: The Gift That Keeps on Taking: How Federal Banking Laws Prevent States from Enforcing Gift Card Laws](https://minnesotalawreview.org/article/gift-taking-federal-banking-laws-prevent-states-enforcing-gift-card-laws/) - By Y. Angela Lam. Full text here. Every year, consumers purchase about $80 billion in gift cards, only to lose $8 billion loaded on those cards because of expiration dates and service fees that deplete the value of the cards. State legislators have tried to protect consumers by passing laws that would prohibit or limit the lawreview - Minnesota Law Review - [Note: Removing the Judicial Gag Rule: A Proposal for Changing Judicial Speech Regulations to Encourage Public Discussion of Active Cases](https://minnesotalawreview.org/article/removing-judicial-gag-rule-proposal-changing-judicial-speech-regulations-encourage-public-discussion-active-cases/) - By Michael D. Schoepf. Full text here. The judiciary may be the oft-forgotten third-branch of government, but judges still face ample criticism from the media and the public just like their colleagues in the legislative and executive branches. Unlike their colleagues however, judges cannot respond with glossy public relations campaigns because of judicial rules that severely lawreview - Minnesota Law Review - [Foreword](https://minnesotalawreview.org/article/foreword/) - By Jeffrey P. Justman. Full text here. lawreview - Minnesota Law Review - [Separation of Powers During the Forty-Fourth Presidency and Beyond](https://minnesotalawreview.org/article/separation-powers-forty-fourth-presidency/) - By Brett M. Kavanaugh. Full text here. lawreview - Minnesota Law Review - [Judicial Nominations in an Umpireless Game: Trusted Sources, a Complaint, and a Proposal](https://minnesotalawreview.org/article/judicial-nominations-umpireless-game-trusted-sources-complaint-proposal/) - By Benjamin Wittes. Full text here. lawreview - Minnesota Law Review - [The Political Economy of Judging](https://minnesotalawreview.org/article/political-economy-judging/) - By Thomas Brennan, Lee Epstein, & Nancy Staudt. Full text here. lawreview - Minnesota Law Review - [Dissents Against Type](https://minnesotalawreview.org/article/dissents-type/) - By Ward Farnsworth. Full text here. lawreview - Minnesota Law Review - [Hear Me Roar: What Provokes Supreme Court Justices to Dissent from the Bench?](https://minnesotalawreview.org/article/hear-roar-provokes-supreme-court-justices-dissent-bench/) - By Timothy R. Johnson, Ryan C. Black, & Eve M. Ringsmuth. Full text here. lawreview - Minnesota Law Review - [Shortcuts to Reform](https://minnesotalawreview.org/article/shortcuts-reform/) - By Heather K. Gerken. Full text here. lawreview - Minnesota Law Review - [Withdrawal: The Roberts Court and the Retreat from Election Law](https://minnesotalawreview.org/article/withdrawal-roberts-court-retreat-election-law/) - By Ellen Katz. Full text here. lawreview - Minnesota Law Review - [Defacing Democracy?: The Changing Nature and Rising Importance of As-Applied Challenges in the Supreme Court's Recent Election Law Decisions](https://minnesotalawreview.org/article/defacing-democracy-changing-nature-rising-importance-as-applied-challenges-supreme-courts-election-law-decisions/) - By Nathaniel Persily & Jennifer S. Rosenberg. Full text here. lawreview - Minnesota Law Review - [Disappearing Districts: Minority Vote Dilution Doctrine as Politics](https://minnesotalawreview.org/article/disappearing-districts-minority-vote-dilution-doctrine-politics/) - By Terry Smith. Full text here. lawreview - Minnesota Law Review - [The Fatally Flawed Theory of the Unbundled Executive](https://minnesotalawreview.org/article/fatally-flawed-theory-unbundled-executive/) - By Steven G. Calabresi & Nicholas Terrell. Full text here. lawreview - Minnesota Law Review - [Wartime Judgments of Presidential Power: Striking Down but Not Back](https://minnesotalawreview.org/article/wartime-judgments-presidential-power-striking/) - By William G. Howell. Full text here. lawreview - Minnesota Law Review - [Shaping Supreme Court Policy Through Appointments: The Impact of a New Justice](https://minnesotalawreview.org/article/shaping-supreme-court-policy-appointments-impact-justice/) - By Charles Cameron & Jee-Kwang Park, with Deborah Beim. Full text here. lawreview - Minnesota Law Review - [Note: Murder and the Military Commissions: Prohibiting the Executive's Unauthorized Expansion of Jurisdiction](https://minnesotalawreview.org/article/note-murder-military-commissions-prohibiting-executives-unauthorized-expansion-jurisdiction/) - By Joseph C. Hansen. Full text here. When Congress passed the Military Commissions Act of 2006 (MCA) to create a military commission system to try detainees held at Guantánamo Bay, it granted the Secretary of Defense the authority to detail the procedural and evidentiary rules. In response, the Secretary promulgated the Manual for Military Commissions (MMC), lawreview - Minnesota Law Review - [Note: Native American Rape Victims: Desperately Seeking an Oliphant-Fix](https://minnesotalawreview.org/article/note-native-american-rape-victimes-desperately-seeking-oliphant-fix/) - By Marie Quasius. Full text here. Native American women suffer sexual assault at a much higher rate and with more serious consequences than any other racial or ethnic group in the United States. Further, such rapes are overwhelmingly committed by individuals outside the Native American community. Most non-Indian perpetrators, however, go unpunished. The Supreme Court decision lawreview - Minnesota Law Review - [Specific Performance and the Thirteenth Amendment](https://minnesotalawreview.org/article/specific-performance-thirteenth-amendment/) - By Nathan B. Oman. Full text here. Black-letter law declares that a contract to perform personal services cannot be specifically enforced. Many courts, scholars, and commentators have claimed that such enforcement would constitute “involuntary servitude” under the Thirteenth Amendment. This Article, however, rejects that conventional wisdom. A careful reading of the history leading to the ratification lawreview - Minnesota Law Review - [The Limits of Backlash: Assessing the Political Response to Kelo](https://minnesotalawreview.org/article/limits-backlash-assessing-political-response-kelo/) - By Ilya Somin. Full text here. The Supreme Court’s 2005 decision in Kelo v. City of New London, which upheld the power of government to condemn private property for purposes of economic development, generated a massive political backlash from across the political spectrum. Over forty states, as well as the federal government, have enacted post-Kelo reform lawreview - Minnesota Law Review - [The National Surveillance State: A Response to Balkin](https://minnesotalawreview.org/article/response-article-national-surveillance-state-response-balkin/) - By Orin S. Kerr. Full text here. lawreview - Minnesota Law Review - [Review Essay: How a Judge Thinks](https://minnesotalawreview.org/article/review-essay-judge-thinks/) - By Michael J. Gerhardt. Full text here. lawreview - Minnesota Law Review - [Note: Defogging the Cloud: Applying Fourth Amendment Principles to Evolving Privacy Expectations in Cloud Computing](https://minnesotalawreview.org/article/note-defogging-cloud-applying-fourth-amendment-principles-evolving-privacy-expectations-cloud-computing/) - By David A. Couillard. Full text here. It took nearly a century after the invention of the telephone for the Supreme Court to recognize that the Fourth Amendment could be applied to the content of private telephone conversations. Today, the Internet is in a similar state of limbo, with courts reluctant to grant Fourth Amendment protection lawreview - Minnesota Law Review - [Note: Cramming Down the Housing Crisis: Amending 11 U.S.C. § 1322(b) to Protect Homeowners and Create a Sustainable Bankruptcy System](https://minnesotalawreview.org/article/note-cramming-housing-crisis-amending-11-u-s-c-§-1322b-protect-homeowners-create-sustainable-bankruptcy-system/) - By Nina Liao. Full text here. The U.S. bankruptcy system has served as a safety net for millions of Americans for the last 110 years, but it failed to rescue homeowners in the ongoing recession. Amid fiery allegations and accusations, economists and bankruptcy judges debate the controversial modification of loans, a process called cram-down. Cram-down is lawreview - Minnesota Law Review - [Note: Inequitable-Conduct Doctrine Reform: Is the Death Penalty for Patents Still Appropriate?](https://minnesotalawreview.org/article/inequitable-conduct-doctrine-reform-death-penalty-patents-appropriate/) - By Nicole M. Murphy. Full text here. Over the past three years, the Federal Circuit has contributed to the rise in inequitable-conduct defenses by failing to apply the doctrine consistently. First, the court broadened the scope of the doctrine’s materiality element to include information unrelated to patentability and failed to offer guidance on how to apply lawreview - Minnesota Law Review - [Note: Combating Joint Ventures in Suppression: Taking Inventory of the Legal Arsenal](https://minnesotalawreview.org/article/combating-joint-ventures-suppression-inventory-legal-arsenal/) - By Daniel J. Iden. Full text here. Companies may decide to leave patented technologies unused for numerous reasons, a great many of them legal. The patent laws confirm a company’s right to let a patent languish, unpracticed by anyone. But companies with patents on alternative technologies may agree to enter into a joint venture: promoting and lawreview - Minnesota Law Review - [Crossing the Color Line: Racial Migration and the One-Drop Rule, 1600-1860](https://minnesotalawreview.org/article/crossing-color-line-racial-migration-one-drop-rule-1600-1860/) - By Daniel J. Sharfstein. Full text here. Scholars describe the one-drop rule—the idea that any African ancestry makes a person black—as the American regime of race. While accounts of when the rule emerged vary widely, ranging from the 1660s to the 1920s, most legal scholars have assumed that once established, the rule created a bright line lawreview - Minnesota Law Review - [A Simple Statutory Solution to Minority Oppression in the Closely Held Business](https://minnesotalawreview.org/article/simple-statutory-solution-minority-oppression-closely-held-business/) - By John H. Matheson & R. Kevin Maler. Full text here. Disputes involving closely held businesses come in primarily two varieties. When, as is often the case, the business fails, creditors regularly seek to pierce the corporate veil in an attempt to reach the assets of the business owners. When the business succeeds, on the other lawreview - Minnesota Law Review - [Parental Support of Adult Children with Disabilities](https://minnesotalawreview.org/article/parental-support-adult-children-disabilities/) - By Sande L. Buhai. Full text here. It is generally agreed that parents should (morally) and must (legally) be required to support their children until they reach the age of majority. This article examines the circumstances in which parents should or must support their children thereafter. Do parents have an indefinite obligation to provide financial support lawreview - Minnesota Law Review - [Sex Torts](https://minnesotalawreview.org/article/sex-torts/) - By Deana A. Pollard. Full text here. America has a serious sexual problem. The sexual practices of a small percentage of Americans have created an unprecedented disease rate that is costing the American public about $20 billion per year. Lawsuits seeking damages for sexual disease transmission are on the rise, yet current sex tort law is lawreview - Minnesota Law Review - [Essay, Revisiting Dreyfus: A More Complete Account of a Trial by Mathematics](https://minnesotalawreview.org/article/essay-revisiting-dreyfus-complete-account-trial-mathematics/) - By D.H. Kaye. Full text here. Legal literature and case law depict the infamous conviction of Alfred Dreyfus for treason and espionage in 1899 as a prime example of the power of even grossly fallacious mathematical demonstrations to overwhelm a legal tribunal. This Essay shows that Dreyfus is not a case of mathematics run amok, unchecked lawreview - Minnesota Law Review - [Note, Protecting Communities from Unwarranted Environmental Risks: A NEPA Solution for ICCTA Preemption](https://minnesotalawreview.org/article/note-protecting-communities-unwarranted-environmental-risks-nepa-solution-iccta-preemption/) - By Shata L. Stucky. Full text here. In 1995, Congress passed the Interstate Commerce Commission Termination Act (ICCTA) in an effort to relieve the railroad industry of burdensome regulation. The ICCTA preempts local land-use regulations that communities formerly used to protect valuable resources such as drinking water supplies. Under some circumstances, the National Environmental Policy Act lawreview - Minnesota Law Review - [Rewriting Rule 68: Realizing the Benefits of the Federal Settlement Rule by Injecting Certainty into Offers of Judgment](https://minnesotalawreview.org/article/rewriting-rule-68-realizing-benefits-federal-settlement-rule-injecting-certainty-offers-judgment/) - By Danielle M. Shelton. Full text here. This Article explores a court-sponsored settlement tool—Rule 68 of the Federal Rules of Civil Procedure—which allows defendants to formally offer settlement to plaintiffs. The rule differs from typical settlement devices because the plaintiff’s rejection of a Rule 68 settlement offer carries consequences. Namely, if the plaintiff receives less lawreview - Minnesota Law Review - [The Perfect Storm of Retirement Insecurity: Fixing the Three-Legged Stool of Social Security, Pensions, and Personal Savings](https://minnesotalawreview.org/article/perfect-storm-retirement-insecurity-fixing-three-legged-stool-social-security-pensions-personal-savings/) - By Stephen F. Befort. Full text here. This Article provides a unique, wide-angle view of the looming crisis in retirement security. The impending confluence of a burgeoning retiree cohort and a diminishing resource base threatens to wreak havoc on the financial well-being of the coming generation of retirees. This Article first reviews the current status of lawreview - Minnesota Law Review - [Note: The Executive Reports, We Decide: The Constitutionality of an Executive Branch Question and Report Period](https://minnesotalawreview.org/article/note-executive-reports-decide-constitutionality-executive-branch-question-report-period/) - By Alex Hontos. Full text here. Currently, Congress acquires information from the executive branch through two primary methods: the legislative subpoena or an “invitation” for an executive official to testify. These approaches are inadequate, the former often too blunt and subject to majority control while the latter too lenient and irregular. Increased congressional scrutiny of lawreview - Minnesota Law Review - [Note: An Unacceptable Exception: The Ramifications of Physician Immunity from Medical Procedure Patent Infringement Liability](https://minnesotalawreview.org/article/note-unacceptable-exception-ramifications-physician-immunity-medical-procedure-patent-infringement-liability/) - By Emily C. Melvin. Full text here. Medical procedures present a unique challenge to the patent system. Without patents, investors may be unwilling to commit resources to the costly development of new procedures. However, patents on these procedures may decrease public access to the procedures, which may harm society’s interest in accessible medical care. In response lawreview - Minnesota Law Review - [Note: Kiss, Kiss, Bang, Bang: How Current Approaches to Guns and Domestic Violence Fail to Save Women's Lives](https://minnesotalawreview.org/article/note-kiss-kiss-bang-bang-current-approaches-guns-domestic-violence-fail-save-womens-lives/) - By Jennifer L. Vainik. Full text here. In comparison to the general population, battered women are much more likely to experience gun violence at the hands of their intimate partners. However, despite an increasing recognition that the government must take special measures to stop gun violence against battered women, current laws remain ineffective at disarming batterers. lawreview - Minnesota Law Review - [Why Supreme Court Justices Should Ride Circuit Again](https://minnesotalawreview.org/article/supreme-court-justices-ride-circuit/) - By David R. Stras. Full text here. The practice of Supreme Court Justices circuit riding is as old as the federal judiciary itself and has a storied history that spans the first 120 years of this nation’s history. Yet the practice is also one of the least explored aspects of the Judiciary Act of 1789 and lawreview - Minnesota Law Review - [The Scientific Study of Judicial Activism](https://minnesotalawreview.org/article/scientific-study-judicial-activism/) - By Frank B. Cross & Stefanie A. Lindquist. Full text here. Claims of judicial activism are common from both the right and the left, but they are seldom scrutinized systematically. Prior tests of judicial activism published in law reviews have typically involved analysis of frequency distributions reflecting the number of cases in which Justices voted lawreview - Minnesota Law Review - [When Judges Lie (and When They Should)](https://minnesotalawreview.org/article/judges-lie-and-should/) - By Paul Butler. Full text here. What should a judge do when she must apply law that she believes is fundamentally unjust? The problem is as old as slavery. It is as contemporary as the debates about capital punishment and abortion rights. In a famous essay, Robert Cover described four choices that a judge has in lawreview - Minnesota Law Review - [Lawyers, Justice, and the Challenge of Moral Pluralism](https://minnesotalawreview.org/article/lawyers-justice-challenge-moral-pluralism/) - By Katherine R. Kruse. Full text here. Each year law students confront the same question in their professional responsibility classes: should lawyers represent clients who want to use the law to do something immoral? Legal scholars who have addressed this question fall into two main camps: traditionalists and social justice theorists. Traditionalists argue that lawyers should lawreview - Minnesota Law Review - [Essay: Unsubsidizing Suburbia](https://minnesotalawreview.org/article/review-essay-unsubsidizing-suburbia/) - By Nicole Stelle Garnett. Full text here. lawreview - Minnesota Law Review - [Property Rights and the Efficient Exploitation of Copyrighted Works: An Empirical Analysis of Public Domain and Copyrighted Fiction Bestsellers](https://minnesotalawreview.org/article/property-rights-efficient-exploitation-copyrighted-works-empirical-analysis-public-domain-copyrighted-fiction-bestsellers/) - By Paul J. Heald. Full text here. Economists and policymakers have recently defended the extension of copyright protection to assure the efficient exploitation of existing works. They assert that works in the public domain may be underexploited due to the lack of property rights. This study compares the availability, number of editions, and prices of 166 lawreview - Minnesota Law Review - [Successor Liability](https://minnesotalawreview.org/article/successor-liability/) - By John H. Matheson. Full text here. The phrase mergers and acquisitions, or M&A for short, signifies both the business activity of growing (or divesting) corporate operations and the legal rules surrounding that activity. One typical acquisition technique is the purchase of business assets by one company from another. Asset sales transactions have various benefits, one lawreview - Minnesota Law Review - [Regulating Reproduction: The Problem with Best Interests](https://minnesotalawreview.org/article/regulating-reproduction-problem-interests/) - By I. Glenn Cohen. Full text here. Should the State permit anonymous sperm donation? Should brother-sister incest between adults be made criminal? Should individuals over the age of fifty be allowed access to reproductive technologies? Should the State fund abstinence education? One common form of justification that is offered to answer these and a myriad of lawreview - Minnesota Law Review - [Judicial Review of Judicial Lawmaking](https://minnesotalawreview.org/article/judicial-review-judicial-lawmaking/) - By Amnon Lehavi. Full text here. "It would be absurd to allow a State to do by judicial decree what the Takings Clause forbids it to do by legislative fiat . . . . [T]he particular state actor is irrelevant." - Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 130 S. Ct. 2592, 2601–02 (2010). Justice Scalia’s lawreview - Minnesota Law Review - [Conundrum](https://minnesotalawreview.org/article/conundrum/) - By Derek E. Bambauer. Full text here. Cybersecurity is a conundrum. Despite a decade of sustained attention from scholars, legislators, military officials, popular media, and successive presidential administrations, little, if any, progress has been made in augmenting Internet security. Current scholarship on cybersecurity is bound to ill-fitting doctrinal models; it addresses cybersecurity based upon identification of lawreview - Minnesota Law Review - [Note: Revising the Organizational Sentencing Guidelines to Eliminate the Focus on Compliance Programs and Cooperation in Determining Corporate Sentence Mitigation](https://minnesotalawreview.org/article/note-revising-organizational-sentencing-guidelines-eliminate-focus-compliance-programs-cooperation-determining-corporate-sentence-mitigation/) - By Lindsay K. Eastman. Full text here. Corporate crime has dominated the news recently, and likely contributed to the United States’ recent financial crisis. After a corporation is convicted of a federal offense, the judge must determine the proper sentence to meet the goals of deterrence, incapacitation, rehabilitation, and just punishment. The United States Sentencing Commission lawreview - Minnesota Law Review - [Note: The Voices of Victims: Debating the Appropriate Role of Fraud Victim Allocution Under the Crime Victims' Rights Act](https://minnesotalawreview.org/article/note-voices-victims-debating-role-fraud-victim-allocution-crime-victims-rights-act/) - By Julie Kaster. Full text here. The economic collapse of 2008 witnessed the greatest explosion of financial fraud cases in recent memory. The Crime Victims’ Rights Acts (CVRA), a federal statute granting victims rights in court, gives victims of financial swindlers a day in court to recount their financial hardships—a process known as victim allocution. The lawreview - Minnesota Law Review - [Foreword](https://minnesotalawreview.org/article/foreword-2/) - By Nicole M. Murphy. Full text here. lawreview - Minnesota Law Review - [Google Book Search and the Future of Books in Cyberspace](https://minnesotalawreview.org/article/google-book-search-future-books-cyberspace/) - By Pamela Samuelson. Full text here. lawreview - Minnesota Law Review - [Cybermarks](https://minnesotalawreview.org/article/cybermarks/) - By Dan L. Burk. Full text here. lawreview - Minnesota Law Review - [The Implications for Law of User Innovation](https://minnesotalawreview.org/article/implications-law-user-innovation/) - By William W. Fisher III. Full text here. lawreview - Minnesota Law Review - [Mask, Shield, and Sword: Should the Journalist's Privilege Protect the Identity of Anonymous Posters to News Media Websites?](https://minnesotalawreview.org/article/mask-shield-sword-journalists-privilege-protect-identity-anonymous-posters-news-media-websites/) - By Jane E. Kirtley. Full text here. lawreview - Minnesota Law Review - [Probably Probable Cause: The Diminishing Importance of Justification Standards](https://minnesotalawreview.org/article/probable-cause-diminishing-importance-justification-standards/) - By Paul Ohm. Full text here. lawreview - Minnesota Law Review - [Vagueness Challenges to the Computer Fraud and Abuse Act](https://minnesotalawreview.org/article/vagueness-challenges-computer-fraud-abuse-act/) - By Orin S. Kerr. Full text here. lawreview - Minnesota Law Review - [Proportionality, Privacy, and Public Opinion: A Reply to Kerr and Swire](https://minnesotalawreview.org/article/proportionality-privacy-public-opinion-reply-kerr-swire/) - By Christopher Slobogin. Full text here. lawreview - Minnesota Law Review - [Note: Tortured Language: "Individuals," Corporate Liability, and the Torture Victim Protection Act](https://minnesotalawreview.org/article/note-tortured-language-individuals-corporate-liability-torture-victim-protection-act/) - By Brad Emmons. Full text here. The Torture Victim Protection Act (TVPA) allows persons who have been subjected to torture or extrajudicial killing to pursue a tort action against “individual[s]” who have committed such actions “under actual or apparent authority, or color of law, of any foreign nation.” In the past decade, activists and human rights lawreview - Minnesota Law Review - [Note: Federalism in Bankruptcy: Relocating the Doctrine of Substantive Consolidation](https://minnesotalawreview.org/article/note-federalism-bankruptcy-relocating-doctrine-substantive-consolidation/) - By R. Benjamin Hanna. Full text here. Substantive consolidation is a process in corporate bankruptcy in which the assets of related debtor entities are placed into a single vehicle subject to the undifferentiated claims of all the creditors. Doing so resolves inter-debtor claims and vindicates the interests of creditors who thought they were transacting with a lawreview - Minnesota Law Review - [Note: In Deep Water: A Common Law Solution to the Bulk Water Export Problem](https://minnesotalawreview.org/article/note-deep-water-common-law-solution-bulk-water-export-problem/) - By Elise L. Larson. Full text here. An American company recently entered into a contract with the town of Sitka, Alaska to export 2.9 billion gallons of freshwater per year from the Blue Lake Reservoir to an unannounced water hub on the west coast of India. If the venture is successful, the company will become the lawreview - Minnesota Law Review - [Veblen Brands](https://minnesotalawreview.org/article/veblen-brands/) - By Jeremy N. Sheff. Full text here. The trademark doctrine of post-sale confusion is a creation of the lower federal courts that has never been accepted, or even considered, by the Supreme Court. The Article argues that the doctrine should be discarded. Courts use the term “post-sale confusion” inconsistently to refer to three different species of lawreview - Minnesota Law Review - [Conviction Without Conviction](https://minnesotalawreview.org/article/conviction-conviction/) - By Talia Fisher. Full text here. The decision-making processes underlying the determination of guilt and punishment in criminal trials are governed by the threshold model. Under this model, conviction is construed as a binary, on-off decision leading to an all-or-nothing sentencing regime. Failure to meet the beyond-a-reasonable-doubt evidentiary threshold results in categorical acquittal and no punishment. lawreview - Minnesota Law Review - [The Interagency Marketplace](https://minnesotalawreview.org/article/interagency-marketplace/) - By Jason Marisam. Full text here. Federal agencies routinely trade money, regulatory power, and governmental services with each other. Collectively, these interagency exchanges create a vast public institution that the author calls the interagency marketplace. The Article offers a comprehensive descriptive and normative account of the legal rules governing the interagency marketplace. The Article’s overarching claim lawreview - Minnesota Law Review - [Waiving Innocence](https://minnesotalawreview.org/article/waiving-innocence/) - By Samuel R. Wiseman. Full text here. The exceptional accuracy of DNA, and the exonerations it has produced, have led to a reconsideration of cherished, but empirically untested, notions of the reliability of the criminal justice system. They have also, albeit incompletely, provoked a renewed commitment—reflected in new ethical rules, compensation schemes, and the testing statutes lawreview - Minnesota Law Review - [A Shareholders' Put Option: Counteracting the Acquirer Overpayment Problem](https://minnesotalawreview.org/article/shareholders-put-option-counteracting-acquirer-overpayment-problem/) - By Afra Afsharipour. Full text here. Acquisition transactions are often the most significant activity undertaken by corporations. Despite the plethora of acquisition transactions, numerous empirical studies find that large-scale acquisition transactions involving public companies result in significant losses for acquiring firms and their shareholders. Finance scholars have attributed these losses to managerial agency costs (such as lawreview - Minnesota Law Review - [Note: Armchair Jury Consultants: The Legal Implications and Benefits of Online Research of Prospective Jurors in the Facebook Era](https://minnesotalawreview.org/article/armchair-jury-consultants-legal-implications-benefits-online-research-prospective-jurors-facebook-era/) - By Adam J. Hoskins. Full text here. Jury consulting is a longstanding practice in American courtrooms. The advent of the Internet and social networking, however, has moved the practice away from high-paid professionals, and has allowed practicing attorneys to become amateur jury consultants. It is now common practice for attorneys, either before or during jury selection, lawreview - Minnesota Law Review - [Note: Making Pesticides Public: A Disclosure-Based Approach to Regulating Pesticide Use](https://minnesotalawreview.org/article/making-pesticides-public-disclosure-based-approach-regulating-pesticide/) - By Brian Jacobson. Full text here. Many states currently classify pesticide application records as private under state data practices law, thereby shielding such information from the public. This means that families living in rural areas where agricultural chemicals are in frequent use cannot access information about where and when pesticides are applied. Though government officials generally lawreview - Minnesota Law Review - [Note: Class Certification as a Prerequisite for CAFA Jurisdiction](https://minnesotalawreview.org/article/class-certification-prerequisite-cafa-jurisdiction/) - By Kevin Lampone. Full text here. The Class Action Fairness Act of 2005 (CAFA) expands federal diversity jurisdiction to include many class actions asserting only state law claims; however, the statute fails to spell out if its jurisdiction continues after a court denies class certification, thereby determining that the putative class is not, in fact, a lawreview - Minnesota Law Review - [Beyond Best Interests](https://minnesotalawreview.org/article/interests/) - By I. Glenn Cohen. Full text here. As Justice Douglas wrote in Skinner v. Oklahoma, procreation is one of the “basic civil rights of man.” Along with marriage it is “fundamental to the very existence and survival of the race” and the state’s interference with it “threatens to have subtle, far-reaching and devastating effects.” And yet lawreview - Minnesota Law Review - [That's Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law](https://minnesotalawreview.org/article/discrimination-american-beliefs-limits-anti-discrimination-law/) - By Katie R. Eyer. Full text here. Empirical studies have shown that discrimination litigants face difficult odds. Indeed, less than five percent of all discrimination plaintiffs achieve any form of litigated relief. These odds are far worse than those faced by virtually any other category of federal litigants and extend to every conceivable procedural juncture, from lawreview - Minnesota Law Review - [When Copyright Law and Science Collide: Empowering Digitally Integrated Research Methods on a Global Scale](https://minnesotalawreview.org/article/copyright-law-science-collide-empowering-digitally-integrated-research-methods-global-scale/) - By Jerome H. Reichman & Ruth L. Okediji. Full text here. Automated knowledge discovery tools have become central to the scientific enterprise in a growing number of fields and are widely employed in the humanities as well. New scientific methods, and the evolution of entirely new fields of scientific inquiry, have emerged from the integration of lawreview - Minnesota Law Review - [Lawyers, Not Widgets: Why Private-Sector Attorneys Must Unionize to Save the Legal Profession](https://minnesotalawreview.org/article/lawyers-widgets-private-sector-attorneys-unionize-save-legal-profession/) - By Melissa Mortazavi. Full text here. The Article argues that practical labor issues and ethical issues are inherently intertwined in the legal profession. Despite the widespread acknowledgment that there is an underlying tension between how private practice is conducted and the values lawyers hold, the issue of how to remedy modern legal practice ethically is misunderstood lawreview - Minnesota Law Review - [Note: What Have I Opted Myself Into? Resolving the Uncertain Status of Opt-In Plaintiffs Prior to Conditional Certification in Fair Labor Standards Act Litigation](https://minnesotalawreview.org/article/note-opted-into-resolving-uncertain-status-opt-in-plaintiffs-prior-conditional-certification-fair-labor-standards-act-litigation/) - By Carl Engstrom. Full text here. Nearly all wage and hour cases are brought by multiple plaintiffs. This only makes sense—generally if one worker is not getting paid overtime, the same can be said of his or her co-workers. The effective functioning of the collective action device is therefore crucial to enforcing workers’ rights to a lawreview - Minnesota Law Review - [Note: Daubert Rises: The (Re)applicability of the Daubert Factors to the Scope of Forensics Testimony](https://minnesotalawreview.org/article/daubert-rises-reapplicability-daubert-factors-scope-forensics-testimony/) - By Geoffrey M. Pipoly. Full text here. “Forensics” is a broad term used to describe many techniques utilized by law enforcement for the purpose of gathering evidence and solving crimes. Fingerprinting, firearm and toolmark analysis, and shoeprint analysis are all examples forensic techniques. Although many forensics practitioners describe their fields as “science” or as “rooted in lawreview - Minnesota Law Review - [Note: Dissent Without Disloyalty: Expanding the Free Speech Rights of Military Members Under the “General Articles” of the UCMJ](https://minnesotalawreview.org/article/note-dissent-disloyalty-expanding-free-speech-rights-military-members-general-articles-ucmj/) - By Jason Steck. Full text here. Under Articles 133 and 134 of the UCMJ, military members enjoy far narrower free speech protections than civilian government employees. Even as courts have placed limits on the ability of the government to limit civilian employee speech under Pickering v. Board of Education, they have refused to limit the military’s lawreview - Minnesota Law Review - [Super PACs](https://minnesotalawreview.org/article/super-pacs/) - By Richard Briffault. Full text here. lawreview - Minnesota Law Review - [Matching Political Contributions](https://minnesotalawreview.org/article/matching-political-contributions/) - By Spencer Overton. Full text here. lawreview - Minnesota Law Review - [Lessons Learned: Political Advertising and Political Law](https://minnesotalawreview.org/article/lessons-learned-political-advertising-political-law/) - By Kenneth Goldstein, David A. Schweidel, & Mike Wittenwyler. Full text here. lawreview - Minnesota Law Review - [Essay, Donor Disclosure: Undermining the First Amendment](https://minnesotalawreview.org/article/essay-donor-disclosure-undermining-amendment/) - By Cleta Mitchell. Full text here. lawreview - Minnesota Law Review - [Note: Ugly on the Inside: An Argument for a Narrow Interpretation of Employer Defenses to Appearance Discrimination](https://minnesotalawreview.org/article/note-ugly-inside-argument-narrow-interpretation-employer-defenses-appearance-discrimination/) - By Mila Gumin. Full text here . lawreview - Minnesota Law Review - [Note: What “Being a Watchdog” Really Means: Removing the Attorney General from the Supervision of Charitable Trusts](https://minnesotalawreview.org/article/note-being-watchdog-means-removing-attorney-general-supervision-charitable-trusts/) - By Kelly McNabb. Full text here. lawreview - Minnesota Law Review - [Note: Plausible Defenses: Historical, Plain Meaning, and Public Policy Arguments for Applying Iqbal and Twombly to Affirmative Defenses](https://minnesotalawreview.org/article/note-plausible-defenses-historical-plain-meaning-public-policy-arguments-applying-iqbal-twombly-affirmative-defenses/) - By Matthew J.M. Pelikan. Full text here. lawreview - Minnesota Law Review - [An Immigration Crisis in a Nation of Immigrants: Why Amending the Fourteenth Amendment Won’t Solve Our Problems](https://minnesotalawreview.org/article/essay-immigration-crisis-nation-immigrants-amending-fourteenth-amendment-wont-solve-problems/) - By Alberto R. Gonzales. Full text here. The concerns over another terrorist attack, a sluggish economic recovery, high unemployment rates, and state and local budget deficits have propelled immigration policy to the forefront of political debate in the United States. America’s current approach to immigration is an abject failure, undermining the rule of law and our lawreview - Minnesota Law Review - [Which Law Governs During Armed Conflict? The Relationship Between International Humanitarian Law and Human Rights Law](https://minnesotalawreview.org/article/law-governs-armed-conflict-relationship-international-humanitarian-law-human-rights-law/) - By Oona A. Hathaway, Rebecca Crootof, Philip Levitz, Haley Nix, William Perdue, Chelsea Purvis, and Julia Spiegel. Full text here. Which law governs during armed conflict—human rights law or humanitarian law? This Article aims to answer that question. It draws on jurisprudence, state practice, and recent scholarship to describe three possible approaches to applying the two lawreview - Minnesota Law Review - [In Defense of Judicial Empathy](https://minnesotalawreview.org/article/defense-judicial-empathy/) - By Thomas B. Colby. Full text here. President Obama has repeatedly stated that he views a capacity for empathy as an essential attribute of a good judge. And conservatives have heaped mountains of scorn upon him for saying so—accusing him of expressing open contempt for the rule of law. This Article seeks to offer a sustained lawreview - Minnesota Law Review - [New Evidence on Appeal](https://minnesotalawreview.org/article/evidence-appeal/) - By Jeffrey C. Dobbins. Full text here. Appellate review is limited, almost by definition, to consideration of the factual record as established in the trial court. Adhering to this record review principle, appellate courts generally reject out of hand any effort to supplement the appellate record with evidence that was not considered by the court below. lawreview - Minnesota Law Review - [Note: Juveniles Locked in Limbo: Why Pretrial Detention Implicates a Fundamental Right](https://minnesotalawreview.org/article/note-juveniles-locked-limbo-pretrial-detention-implicates-fundamental/) - By Shana Conklin. Full text here. At the birth of the juvenile court, reformers attempted to develop a system that melded child welfare concerns with crime control. Despite the founders’ original intentions, however, the juvenile court system has moved away from the therapeutic model to a punitive model. The increasingly punitive nature of the system lawreview - Minnesota Law Review - [Note: Loaded Questions: A Suggested Constitutional Framework for the Right to Keep and Bear Arms](https://minnesotalawreview.org/article/note-loaded-questions-suggested-constitutional-framework-bear-arms/) - By Reid Golden. Full text here. Recent developments in the interpretation of the Second Amendment left unanswered questions regarding the scope of the constitutional guarantee of armed self-defense. Most importantly, neither District of Columbia v. Heller nor McDonald v. City of Chicago set a firm standard for determining the constitutionality of gun-control laws. This determination is lawreview - Minnesota Law Review - [Copyright Exhaustion and the Personal Use Dilemma](https://minnesotalawreview.org/article/copyright-exhaustion-personal-dilemma/) - By Aaron Perzanowski & Jason Schultz. Full text here. lawreview - Minnesota Law Review - [Too Much for Too Little: The Restatement’s Measure of Damages Where the Trustee Sells a Trust Asset for an Insufficient Price](https://minnesotalawreview.org/article/little-restatements-measure-damages-trustee-sells-trust-asset-insufficient-price/) - By Richard Thomson. Full text here. lawreview - Minnesota Law Review - [Notice-and-Comment Sentencing](https://minnesotalawreview.org/article/notice-and-comment-sentencing/) - By Richard A. Bierschbach & Stephanos Bibas. Full text here. As the real policymakers of criminal justice, prosecutors and other criminal justice professionals resolve many of the complex debates about justice in sentencing by deciding what charges to file, what plea bargains to strike, and what sentences to recommend. But they make those value-laden decisions out lawreview - Minnesota Law Review - [Patent Law's Audience](https://minnesotalawreview.org/article/patent-laws-audience/) - By Mark D. Janis & Timothy R. Holbrook. Full text here. Many rules of patent law rest on a false premise about their target audience. Rules of patentability purport to provide subtle incentives to innovators. However, innovators typically encounter these rules only indirectly, through intermediaries such as lawyers, venture capitalists, managers, and others. Rules of patent lawreview - Minnesota Law Review - [Forum Competition and Choice of Law Competition in Securities Law After Morrison v. National Australia Bank](https://minnesotalawreview.org/article/forum-competition-choice-law-competition-securities-law-morrison-v-national-australia-bank/) - By Wulf A. Kaal & Richard W. Painter. Full text here. In Morrison v. National Australia Bank Ltd., the U.S. Supreme Court in 2010 held that U.S. securities laws apply only to securities transactions within the United States. The transactional test in Morrison could be relatively short lived because it is rooted in geography. For cases lawreview - Minnesota Law Review - [The Political Economy of Climate Change Winners](https://minnesotalawreview.org/article/political-economy-climate-change-winners/) - By J.B. Ruhl. Full text here. Many people and businesses in the United States will receive market and nonmarket benefits from climate change as it moves forward over the next one hundred years. Speaking of climate change benefits is not for polite “green” conversation, but ignoring them—as climate policy dialogue and legal scholarship consistently have—will not lawreview - Minnesota Law Review - [Note: Judicial Review of SEC Rules: Managing the Costs of Cost-Benefit Analysis](https://minnesotalawreview.org/article/note-judicial-review-sec-rules-managing-costs-cost-benefit-analysis/) - By Rachel A. Benedict. Full text here. In the past seven years, the D.C. Circuit has vacated three Securities and Exchange Commission (SEC) rules for failing to conduct an adequate cost-benefit analysis. This string of cases culminated on July 11, 2011 when the D.C. Circuit overturned the SEC’s new proxy access rule. Strict judicial scrutiny of lawreview - Minnesota Law Review - [Note: It Can Do More Than Protect Your Credit Score: Regulating Social Media](https://minnesotalawreview.org/article/note-protect-credit-score-regulating-social-media/) - By Nathan J. Ebnet. Full text here. A growing number of employers are factoring job candidates’ social media profiles into their hiring decisions. Employers value social media pre-employment screening because it provides access to previously unobtainable applicant information. However, job candidates are wary of social media pre-employment screening due to concerns over the trustworthiness and authenticity lawreview - Minnesota Law Review - [Note: Warrantless Search Cases Are Really All the Same](https://minnesotalawreview.org/article/warrantless-search-cases/) - By Will Stancil. Full text here. Fourth Amendment jurisprudence confounds. Even with thousands of cases and hundreds of repeated fact patterns to rely on, courts are not able to come up with consistent rules. In order to address the problem, this Note proposes a new way of thinking about warrantless searches. It ignores the debate over lawreview - Minnesota Law Review - [The Use and Abuse of Special-Purpose Entities in Public Finance](https://minnesotalawreview.org/article/abuse-special-purpose-entities-public-finance/) - By Steven L. Schwarcz. Full text here. States in the American federal system increasingly are raising financing by issuing bonds through special-purpose entities. Although this represents a significant portion—in some cases, the majority—of state financing, relatively little is known or has been written about these entities. This Article examines state special-purpose entities, comparing them to special-purpose entities used lawreview - Minnesota Law Review - [Technological Leap, Statutory Gap, and Constitutional Abyss: Remote Biometric Identification Comes of Age](https://minnesotalawreview.org/article/technological-leap-statutory-gap-constitutional-abyss-remote-biometric-identification-age/) - By Laura K. Donohue. Full text here. Federal interest in using facial recognition technology (FRT) to collect, analyze, and use biometric information is rapidly growing. Despite the swift movement of agencies and contractors into this realm, however, Congress has been virtually silent on the current and potential uses of FRT. No laws directly address facial recognition—much lawreview - Minnesota Law Review - [Water Bankruptcy](https://minnesotalawreview.org/article/water-bankruptcy/) - By Christine Klein. Full text here. Many western states are on the verge of bankruptcy, with debts exceeding assets. And yet, they continue to take on additional debt through contracts and other commitments. Although such distress may sound like an outgrowth of the 2008 recession, this crisis involves water, not money. In particular, the problem concerns lawreview - Minnesota Law Review - [Originalism and Political Ignorance](https://minnesotalawreview.org/article/originalism-political-ignorance/) - By Ilya Somin. Full text here. Original meaning originalism may now be the most popular version of constitutional theory in the legal academy. The methodology has been endorsed by at least two Supreme Court justices and well-known scholars from across the political spectrum. Original meaning is usually interpreted as focusing on the public understanding of the lawreview - Minnesota Law Review - [Note: Jurisprudential Innovation or Accountability Avoidance? The International Criminal Court and Proposed Expansion of the African Court of Justice and Human Rights](https://minnesotalawreview.org/article/note-jurisprudential-innovation-accountability-avoidance-international-criminal-court-proposed-expansion-african-court-justice-human-rights/) - By Kristen Rau. Full text here. From Nuremburg to The Hague, international criminal justice has evolved dynamically and at times unpredictably. Among recent developments is a proposal to expand the subject matter jurisdiction of the African Court of Justice and Human Rights (ACJHR) to include a mandate to prosecute individuals for serious international crimes. Expansion of lawreview - Minnesota Law Review - [Note: Stifled Justice: The Unauthorized Practice of Law and Internet Legal Resources](https://minnesotalawreview.org/article/note-stifled-justice-unauthorized-practice-law-internet-legal-resources/) - By Mathew Rotenberg. Full text here. Advances in computer technology are effectively commoditizing the law and revolutionizing the ways in which individuals seek and receive legal services. Internet Legal Providers (ILPs) present tremendous potential for increased access to legal services, which is vital to an increasing number of unrepresented litigants, as well as to combat shrinking lawreview - Minnesota Law Review - [Does International Law Matter?](https://minnesotalawreview.org/article/international-law-matter/) - By Shima Baradaran, Michael Findley, Daniel Nielson, & J.C. Sharman. Full text here. The importance of international law has grown in an increasingly global world. States and their citizens are interconnected and depend on each other to enforce and comply with international law to meet common goals. Despite the expanding presence of international law, the lawreview - Minnesota Law Review - [Our Partisan Foreign Affairs Constitution](https://minnesotalawreview.org/article/partisan-foreign-affairs-constitution/) - By Jide Nzelibe. Full text here. The conventional wisdom tends to treat constitutional arrangements, such as the allocation of foreign affairs powers, as efficiency enhancing constraints that yield benefits for all societal actors. This Article argues, on the contrary, that partisan actors can often manipulate the scope of the foreign affairs powers to achieve narrow ideological lawreview - Minnesota Law Review - [Branding Privacy](https://minnesotalawreview.org/article/branding-privacy/) - By Paul Ohm. Full text here. This Article focuses on the problem of the privacy lurch, defined as an abrupt change made to the way a company handles data about individuals. Two prominent examples include Google’s decision in early 2012 to tear down the walls that once separated data collected from its different services and Facebook’s lawreview - Minnesota Law Review - [The Presumption of Patentability](https://minnesotalawreview.org/article/presumption-patentability/) - By Sean B. Seymore. Full text here. When the Framers of the United States Constitution granted Congress the authority to create a patent system, they certainty did not envision a patent as an a priori entitlement. As it stands now, anyone who files a patent application on anything is entitled to a presumption of patentability. A lawreview - Minnesota Law Review - [Note: First Amendment and the Right to Lie: Regulating Knowingly False Campaign Speech After United States v. Alvarez](https://minnesotalawreview.org/article/amendment-lie-regulating-knowingly-false-campaign-speech-united-states-v-alvarez/) - By Staci Lieffring. Full text here. With the people relying more and more on political advertising to inform them about candidates and elections, it is imperative to try to stop or limit false speech about candidates and the election procedures. False speech undermines the integrity of elections. This has led some states to enact laws banning lawreview - Minnesota Law Review - [Note: Up or Out: Why “Sufficiently Reliable” Statistical Risk Assessment Is Appropriate at Sentencing and Inappropriate at Parole](https://minnesotalawreview.org/article/out-sufficiently-reliable-statistical-risk-assessment-sentencing-inappropriate-parole/) - By Pari McGarraugh. Full text here. Sentencing judges and parole release authorities are increasingly using statistical risk assessments to guide their decision-making. Risk assessment instruments rely on statistical research and modeling to predict an individual’s chance of recidivating based on information about the individual like age and number of prior arrests. These instruments are subject to lawreview - Minnesota Law Review - [Note: Going Back in Time: The Search for Retroactive Rulemaking Power in Statutory Deadlines](https://minnesotalawreview.org/article/time-search-retroactive-rulemaking-power-statutory-deadlines/) - By Chris Schmitter. Full text here. Congress regularly enacts complex laws that require administrative agencies to promulgate rules by specific deadlines. Yet, as agencies do the work of creating rules and, from time to time, miss statutory deadlines, a question remains as to whether an agency can promulgate a rule that is retroactive to the statutory lawreview - Minnesota Law Review - [How Business Fares in the Supreme Court](https://minnesotalawreview.org/article/volume-97-lead-piece-business-fares-supreme-court/) - By Lee Epstein, William M. Landes, & Richard A. Posner. Full text here. A number of scholars, journalists, and at least one member of Congress claim that the current Supreme Court (the “Roberts Court”) is more favorable to business than previous Supreme Courts have been. Other commentators disagree, while acknowledging that the Roberts Court is “less lawreview - Minnesota Law Review - [Inflammatory Speech: Offense Versus Incitement](https://minnesotalawreview.org/article/inflammatory-speech-offense-incitement/) - By Alexander Tsesis. Full text here. The commonly accepted notion that content regulations on speech violate the First Amendment is misleading. In three recent cases—Snyder v. Phelps, Brown v. Entertainment Merchants Ass’n, and United States v. Stevens—the Court made clear that free speech includes the right to express scurrilous, disgusting, and disagreeable ideas. A different set lawreview - Minnesota Law Review - [Reclaiming Equality to Reframe Indigent Defense Reform](https://minnesotalawreview.org/article/reclaiming-equality-reframe-indigent-defense-reform/) - By Lauren Sudeall Lucas. Full text here. Equal access to resources is fundamental to meaningful legal representation, yet for decades, equality arguments have been ignored in litigating indigent defense reform. At a time when underfunded indigent defense systems across the country are failing to provide indigent defendants with adequate representation, the question of resources is even lawreview - Minnesota Law Review - [The Duty to Capture](https://minnesotalawreview.org/article/duty-capture/) - By Jens David Ohlin. Full text here. The duty to capture stands at the fault line between competing legal regimes that might govern targeted killings. If human-rights law and domestic law-enforcement procedures govern these killings, the duty to attempt capture prior to lethal force represents a cardinal rule that is systematically violated by these operations. On lawreview - Minnesota Law Review - [State Enforcement of National Policy: A Contextual Approach (with Evidence from the Securities Realm)](https://minnesotalawreview.org/article/state-enforcement-national-policy-contextual-approach-with-evidence-securities-realm/) - By Amanda M. Rose. Full text here. This Article addresses a topic of contemporary public policy significance: the optimal allocation of law enforcement authority in our federalist system. Proponents of “competitive federalism” have long argued that assigning concurrent enforcement authority to states and the federal government can lead to redundant expense, policy distortion, and a loss lawreview - Minnesota Law Review - [Response: The Social and Cultural Aspects of Climate Change Winners](https://minnesotalawreview.org/article/response-social-cultural-aspects-climate-change-winners/) - By Robin Kundis Craig. Full text here. In this Article, Professor Craig responds to Professor J.B. Ruhl's Article The Political Economy of Climate Change Winners. lawreview - Minnesota Law Review - [Note: Healthy Compromise: Reconciling Wellness Program Financial Incentives with Health Reform](https://minnesotalawreview.org/article/note-healthy-compromise-reconciling-wellness-program-financial-incentives-health-reform/) - By Heather Baird. Full text here. Soaring health care expenditures coupled with plummeting insurance coverage suggest something is seriously wrong with the American health care system. One way that the ACA proposes to control health care costs is through support for employee wellness program initiatives. Wellness programs with financial incentives based upon health status risk create lawreview - Minnesota Law Review - [Note: Death by Arugula: How Soil Contamination Stunts Urban Agriculture, and What the Law Should Do About It](https://minnesotalawreview.org/article/note-death-arugula-soil-contamination-stunts-urban-agriculture-law/) - By Steven A. Platt. Full text here. More and more people are growing food in urban environments. The benefits of urban farming are well documented. The government sees increased economic activity, society enjoys new social and educational opportunities and blight reduction, and the individuals farming eat inexpensive, fresh, locally sourced food. However, cities have fostered and lawreview - Minnesota Law Review - [Foreword, Minnesota Law Review Symposium](https://minnesotalawreview.org/article/foreword-minnesota-law-review-symposium/) - By Tom Pryor. Full text here. lawreview - Minnesota Law Review - [When Common Wisdom Is Neither Common nor Wisdom: Exploring Voters’ Limited Use of Endorsements on Three Ballot Measures](https://minnesotalawreview.org/article/common-wisdom-common-wisdom-exploring-voters-limited-endorsements-ballot-measures/) - By Craig M. Burnett & Mathew D. McCubbins. Full text here. Ballot measures offer voters the opportunity to shape policy decisions directly. It remains unclear, however, if direct democracy asks too much of voters. Do voters have the capacity to make informed decisions on ballot measures that have important and far-reaching policy consequences? The common wisdom lawreview - Minnesota Law Review - [The Political Morality of Voting in Direct Democracy](https://minnesotalawreview.org/article/political-morality-voting-direct-democracy/) - By Michael Serota and Ethan J. Leib. Full text here. The voting levers in candidate elections and in direct democracy elections are identical. The political obligations that bind the citizens that pull them are not. This Essay argues that voters in direct democracy elections, unlike their counterparts in candidate elections, serve as representatives of the people lawreview - Minnesota Law Review - [Interpreting Initiatives](https://minnesotalawreview.org/article/interpreting-initiatives/) - By Michael D. Gilbert. Full text here. Judges claim to resolve ambiguities in initiatives by identifying and giving force to “voter intent,” but scholars reject that on the ground that such intent does not exist. This Article argues otherwise. We can understand the search for voter intent to be a search for the majoritarian interpretation. The lawreview - Minnesota Law Review - [Campaign Finance in the Hybrid Realm of Recall Elections](https://minnesotalawreview.org/article/campaign-finance-hybrid-realm-recall-elections/) - By Elizabeth Garrett. Full text here. In the ever-evolving jurisprudence of campaign finance, one principle has endured: the rules governing candidate elections are analyzed differently from the rules governing ballot measures because, according to the courts, the latter elections do not implicate the state’s legitimate interest in combating quid pro quo corruption. It should now be lawreview - Minnesota Law Review - [Campaign Disclosure in Direct Democracy](https://minnesotalawreview.org/article/campaign-disclosure-direct-democracy/) - By Michael Kang. Full text here. lawreview - Minnesota Law Review - [Direct Democracy and Campaigns Against Minorities](https://minnesotalawreview.org/article/direct-democracy-campaigns-minorities/) - By Todd Donovan. Full text here. I explore some of the indirect effects of holding popular votes on minority rights. This Article examines how direct democracy may expand the scope of conflict over issues of minority rights by allowing campaigns that subject a minority group to public judgment. Campaigns may precipitate messages that treat a minority lawreview - Minnesota Law Review - [When Is It OK to Limit Direct Democracy?](https://minnesotalawreview.org/article/limit-direct-democracy/) - By Shaun Bowler. Full text here. There are many commentators and critics who want to limit direct democracy for a variety of reasons. Whatever the reason (chaotic policy making/uninformed voters/exaggerated influence of money, etc.) the end result is the same: initiatives and direct democracy should become harder to use. The difficulty is twofold: first, often the criticisms lawreview - Minnesota Law Review - [Are State Constitutions Constitutional?](https://minnesotalawreview.org/article/state-constitutions-constitutional/) - By Timothy M. Tymkovich. Full text here. This Article will examine the history, text, and application of the Guarantee Clause (or Republican Form of Government Clause). It will first examine the historical context in which the Framers enacted Article IV, Section 4. It will then discuss the text and public understanding of the Clause. Then, it lawreview - Minnesota Law Review - [Note: Disrupting the Pickering Balance: First Amendment Protections for Teachers in the Digital Age](https://minnesotalawreview.org/article/disrupting-pickering-balance-amendment-protections-teachers-digital-age/) - By Emily McNee. Full text here. Engaging in speech on Facebook has led teachers to be investigated, suspended, and even fired. The nature of online speech on social networking websites like Facebook presents novel concerns in First Amendment law. As Facebook and other forms of social media have become increasingly popular, teachers have been disciplined and lawreview - Minnesota Law Review - [Note: Turner v. Rogers, the Right to Counsel, and the Deficiencies of Mathews v. Eldridge](https://minnesotalawreview.org/article/turner-v-rogers-counsel-deficiencies-mathews-v-eldridge/) - By Tom Pryor. Full text here. This Note uses Turner v. Rogers as a case-study to demonstrate how the Court’s procedural due process analysis, as laid out in Mathews v. Eldridge, is deficient. The application of the Eldridge balancing approach can appear arbitrary when its outcomes are compared across similar situations or when analyzed in depth lawreview - Minnesota Law Review - [Religion’s Footnote Four: Church Autonomy as Arbitration](https://minnesotalawreview.org/article/religions-footnote-four-church-autonomy-arbitration/) - By Michael A. Helfand. Full text here. While the Supreme Court’s decision in Hosanna-Tabor v. EEOC has been hailed as an unequivocal victory for religious liberty, the Court’s holding in footnote four––that the ministerial exception is an affirmative defense and not a jurisdictional bar––undermines decades of conventional thinking about the relationship between church and state. For lawreview - Minnesota Law Review - [Health Law as Disability Rights Law](https://minnesotalawreview.org/article/health-law-disability-rights-law/) - By Jessica L. Roberts. Full text here. When asked to name the most substantial civil rights victory for people with disabilities in recent years, many would choose the Americans with Disabilities Act Amendments Act of 2008. However, this Article contends that the Affordable Care Act (ACA) also represents a significant—albeit unconventional—advance for disability rights. Historically, health lawreview - Minnesota Law Review - [Mind, Body, and the Criminal Law](https://minnesotalawreview.org/article/mind-body-criminal-law/) - By Francis X. Shen. Full text here. Because we hold individuals criminally liable for infliction of “bodily” injury, but impose no criminal sanctions for infliction of purely “mental” injury, the criminal law rests in large part on a distinction between mind and body. Yet the criminal law is virtually silent on what, exactly, constitutes “bodily injury.” lawreview - Minnesota Law Review - [Protecting Property Through Politics: State Legislative Checks and Judicial Takings](https://minnesotalawreview.org/article/protecting-property-politics-state-legislative-checks-judicial-takings/) - By Stephanie Stern. Full text here. lawreview - Minnesota Law Review - [Rage Against the Machine: A Reply to Professors Bierschbach and Bibas](https://minnesotalawreview.org/article/response-rage-machine-reply-professors-bierschbach-bibas/) - By Erik Luna. Full text here. In this response piece, Erik Luna considers Notice-and-Comment Sentencing by Richard A. Bierschbach and Stephanos Bibas, 97 Minn. L. Rev. 1 (2012). lawreview - Minnesota Law Review - [It’s the Reply, Not the Comment: Observations About the Bierschbach and Bibas Proposal](https://minnesotalawreview.org/article/response-its-reply-comment-observations-bierschbach-bibas-proposal/) - By Ronald F. Wright. Full text here. In this response piece, Ronald F. Wright considers Notice-and-Comment Sentencing by Richard A. Bierschbach and Stephanos Bibas, 97 Minn. L. Rev. 1 (2012). lawreview - Minnesota Law Review - [Note: New Solutions to the Age-Old Problem of Private-Sector Bribery](https://minnesotalawreview.org/article/solutions-age-old-problem-private-sector-bribery/) - By Sarah Clark. Full text here. In its wake, commercial bribery leaves increased costs of business, decreased governmental standards and honesty, and a culture of corruption. To combat, and hopefully correct, the evils of corporate bribery, governments have enacted laws to prosecute those willing to pay bribes to garner unfair competitive advantages. Since 1977, the Foreign lawreview - Minnesota Law Review - [Note: Ensuring Equal Access: Rethinking Enforcement of Medicaid’s Equal Access Provision](https://minnesotalawreview.org/article/ensuring-equal-access-rethinking-enforcement-medicaids-equal-access-provision/) - By Anne M. Dwyer. Full text here. Challenged by explosive growth in Medicaid enrollment and devastating budget shortfalls, Medicaid provider payments have become a primary target of many state budget-cutting measures. This has left many of the sixty million Americans who rely on Medicaid without access to needed care. Traditionally, Medicaid beneficiaries and providers have relied lawreview - Minnesota Law Review - [Note: If It’s in the Game, Is It in the Game?: Examining League-Wide Licensing Agreements After American Needle](https://minnesotalawreview.org/article/its-game-game-examining-league-wide-licensing-agreements-american-needle/) - By Talon Powers. Full text here. After the Supreme Court’s decision in American Needle, Inc. v. National Football League in 2010, the National Football League’s (NFL) ability to license league intellectual property as a collective whole has been called into question. If the caselaw that emerges from American Needle completely precludes the League from being treated lawreview - Minnesota Law Review - [Note: Challenging the Plausibility Standard Under the Rules Enabling Act](https://minnesotalawreview.org/article/challenging-plausibility-standard-rules-enabling-act/) - By Edwin W. Stockmeyer. Full text here. One consequence of the Supreme Court’s landmark decisions in Twombly and Iqbal is the reassessment of pleading standards occurring in state appellate courts. Most of these courts have rejected the new plausibility standard in favor of rules designed to allow more claims to proceed to discovery. Thus, although pleading lawreview - Minnesota Law Review - [eHearsay](https://minnesotalawreview.org/article/ehearsay/) - By Jeffrey Bellin. Full text here. This Article proposes a new “eHearsay” rule of evidence that will permit the admission, over a hearsay objection, of a broad spectrum of electronic out-of-court communications. The proposal builds on prior hearsay reform proposals, and also takes advantage of the fact that electronic statements are invariably recorded. Litigants’ ability to lawreview - Minnesota Law Review - [The Right to Quantitative Privacy](https://minnesotalawreview.org/article/quantitative-privacy/) - By David Gray and Danielle Citron. Full text here. We are at the cusp of a historic shift in our conceptions of the Fourth Amendment driven by dramatic advances in surveillance technology. Governments and their private sector agents continue to invest billions of dollars in massive data-mining projects, advanced analytics, fusion centers, and aerial drones, all lawreview - Minnesota Law Review - [The Shale Oil and Gas Revolution, Hydraulic Fracturing, and Water Contamination: A Regulatory Strategy](https://minnesotalawreview.org/article/shale-oil-gas-revolution-hydraulic-fracturing-water-contamination-regulatory-strategy/) - By Thomas W. Merrill & David M. Schizer. Full text here. In the past decade, energy companies have learned to tap previously inaccessible oil and gas in shale and other impermeable rock formations with “hydraulic fracturing” (“fracturing” or “fracking”), pumping fluid at high pressure to crack the rock and release gas and oil trapped inside. This lawreview - Minnesota Law Review - [The Merchants of Wall Street: Banking, Commerce, and Commodities](https://minnesotalawreview.org/article/merchants-wall-street-banking-commerce-commodities/) - By Saule T. Omarova. Full text here. This Article examines the principal legal, policy, and theoretical implications of a transformative—but so far unrecognized—change in the banking industry: the emergence, over the last decade, of U.S. financial conglomerates as leading global merchants in physical commodities, including crude and refined oil products, natural gas, coal, base metals, and lawreview - Minnesota Law Review - [Genetically Modified Food Fight: The FDA Should Step Up to the Regulatory Plate so States Do Not Cross the Constitutional Line](https://minnesotalawreview.org/article/genetically-modified-food-fight-fda-step-regulatory-plate-states-cross-constitutional-line/) - By Morgan Anderson Helme. Full text here. Genetically modified organisms (GMOs) leaped into the spotlight last year with California’s Proposition 37, which proposed mandatory labeling for all foods containing GMOs. Consumers argued they have a right to know what’s in their Cheerios. Manufacturers fought back that such state labeling laws would be expensive and unwieldy, and lawreview - Minnesota Law Review - [Note: Moving Past Preemption: Enhancing the Power of Local Governments over Hydraulic Fracturing](https://minnesotalawreview.org/article/moving-preemption-enhancing-power-local-governments-hydraulic-fracturing/) - By Rachel A. Kitze. Full text here. Technological improvements to a drilling technique known as hydraulic fracturing have opened up access to a century’s supply of natural gas across the United States. The cities and towns that sit above these vast deposits, however, are increasingly concerned about the transformative effect of the fracking industry on their lawreview - Minnesota Law Review - [Note: That’s My Baby: Why the State’s Interest in Promoting Public Health Does Not Justify Residual Newborn Blood Spot Research Without Parental Consent](https://minnesotalawreview.org/article/thats-baby-states-interest-promoting-public-health-justify-residual-newborn-blood-spot-research-parental-consent/) - By Allison M. Whelan. Full text here. Ninety-eight percent of infants born in the United States undergo blood tests to screen for a variety of genetic conditions as part of mandatory state newborn screening programs. These “newborn blood spots” (NBS) are frequently stored by state health departments after the initial tests are complete. Recent lawsuits in lawreview - Minnesota Law Review - [Greeting the Future with an Outstretched Hand](https://minnesotalawreview.org/article/greeting-future-outstretched-hand/) - By President William J. Clinton. Full text here. Volume 98's lead piece is by President William J. Clinton. President Clinton's Essay emphasizes the importance moving forward in our interdependent, global economy, and addressing some of the major challenges we still face. The piece brings into focus important goals we need to continue striving for, including equality, lawreview - Minnesota Law Review - [Speech, Citizenry, and the Market: A Corporate Public Figure Doctrine](https://minnesotalawreview.org/article/speech-citizenry-and-the-market-corporate-public-figure-doctrine/) - By Deven R. Desai. Full text here. Corporate speech is out of balance. Corporations now enjoy expanded speech rights, but the ability to speak about corporations is restricted. This situation must change. That corporations are people for First Amendment questions is a fait accompli. We can debate the merits or wisdom of that fact, but the lawreview - Minnesota Law Review - [Tattoos & IP Norms](https://minnesotalawreview.org/article/tattoos-ip-norms/) - By Aaron Perzanowski. Full text here. The U.S. tattoo industry generates billions of dollars in annual revenue. Like the music, film, and publishing industries, it derives value from the creation of new, original works of authorship. But unlike rights holders in those more traditional creative industries, tattoo artists rarely assert formal legal rights in disputes over lawreview - Minnesota Law Review - [Casual Ostracism: Jury Exclusion on the Basis of Criminal Convictions](https://minnesotalawreview.org/article/casual-ostracism-jury-exclusion-basis-criminal-convictions/) - By Anna Roberts. Full text here. Statutes in forty-eight states permit the exclusion of those with felony convictions from criminal juries; thirteen states permit the exclusion of those with misdemeanor convictions. The reasons given for these exclusions, which include the assumption that those with convictions must be embittered against the state, do not justify their lawreview - Minnesota Law Review - [Government Nonendorsement](https://minnesotalawreview.org/article/government-nonendorsement/) - By Nelson Tebbe. Full text here. What are the constitutional limits on government endorsement? Judges and scholars typically assume that when the government speaks on its own account, it faces few restrictions. In fact, they often say that the only real restriction on government speech is the Establishment Clause. On this view, officials cannot endorse Christianity lawreview - Minnesota Law Review - [Note: Blocking Blocks at the Border: Examining Standard-Essential Patent Litigation Between Domestic Companies at the ITC](https://minnesotalawreview.org/article/blocking-blocks-border-examining-standard-essential-patent-litigation-domestic-companies-itc/) - By Matthew Norris. Full text here. The United States International Trade Commission was created to protect domestic industry and American workers from illegal foreign trade practices. Increasingly, domestic companies have turned to the ITC seeking relief for the infringement of standard-essential patents (SEPs) by other domestic companies. In exchange for having their patented technologies adopted as lawreview - Minnesota Law Review - [Note: Amending Title VII to Safeguard the Viability of Retaliation Claims](https://minnesotalawreview.org/article/amending-title-vii-safeguard-viability-retaliation-claims/) - By Brandon Wheeler. Full text here. Before a victim of employment discrimination can pursue her claims in federal court, she must first exhaust her administrative remedies. This is done by filing a charge with the Equal Employment Opportunity Commission or an equivalent state agency. After reviewing and investigating the charge, the EEOC usually issues a “right-to-sue” lawreview - Minnesota Law Review - [Note: What’s My Age Again? The Immigrant Age Problem in the Criminal Justice System](https://minnesotalawreview.org/article/whats-age-again-immigrant-age-problem-criminal-justice-system/) - By Ross Pearson. Full text here. Each year, immigrants arrive in the United States without knowing their exact age. When they arrive, United States Citizenship and Immigration Service (USCIS) provides each immigrant official documents that list personal information, including a birth date. When immigrants do not know their exact age, USCIS allows them to use an lawreview - Minnesota Law Review - [Crowdsourcing Clinical Trials](https://minnesotalawreview.org/article/crowdsourcing-clinical-trials/) - By Jonathan J. Darrow. Full text here. Pharmaceutical approval today suffers from a serious ethical flaw: newly FDA-approved drugs are de facto “tested” on an unknowing general public in the months and years immediately following drug approval, without either the informed consent of the consuming public or an understanding by the public of the risks that lawreview - Minnesota Law Review - [Speech Engines](https://minnesotalawreview.org/article/speech-engines/) - By James Grimmelmann. Full text here. Academic and regulatory debates about Google are dominated by two opposing theories of what search engines are and how law should treat them. Some describe search engines as passive, neutral conduits for websites’ speech; others describe them as active, opinionated editors: speakers in their own right. The conduit and editor lawreview - Minnesota Law Review - [Beyond One Voice](https://minnesotalawreview.org/article/voice/) - By David H. Moore. Full text here. The one-voice doctrine, a mainstay of U.S. foreign relations jurisprudence, maintains that in its external relations the United States must be able to speak with one voice. The doctrine has been used to answer critical questions about the foreign affairs powers of the President, Congress, the courts, and U.S. lawreview - Minnesota Law Review - [Making Patents Useful](https://minnesotalawreview.org/article/making-patents/) - By Sean B. Seymore. Full text here. It is axiomatic in patent law that an invention must be useful. The utility requirement has been a part of the statutory scheme since the Patent Act of 1790. But what does it mean to be useful? The abstract and imprecise nature of the term combined with the lack lawreview - Minnesota Law Review - [Note: Particulars of Particularity: Alleging Scienter and the Proper Application of Rule 9(b) to Duty-Based Misrepresentations](https://minnesotalawreview.org/article/particulars-particularity-alleging-scienter-proper-application-rule-9b-duty-based-misrepresentations/) - By Morwenna Borden. Full text here. Claims of negligent misrepresentation and fraud by omission are generally held to be derivatives of fraud. The appropriate pleading standard for fraud is clearly governed by Federal Rule of Civil Procedure 9(b)—fraud claims must be alleged with particularity. However, the circuits are divided when it comes to the proper pleading lawreview - Minnesota Law Review - [Note: Recognition of Civil Unions and Domestic Partnerships as Marriages in Same-Sex Marriage States](https://minnesotalawreview.org/article/recognition-civil-unions-domestic-partnerships-marriages-same-sex-marriage-states/) - By Inga Nelson. Full text here. There is currently a patchwork of laws governing same-sex relationships across the United States. Some states issue marriage licenses, while some states have civil unions, domestic partnerships, or other forms of legal recognition. When couples with alternate forms of legal recognition relocate from the issuing state their new state has lawreview - Minnesota Law Review - [Note: A Step in the Right Direction: Patent Damages and the Elimination of the Entire Market Value Rule](https://minnesotalawreview.org/article/step-direction-patent-damages-elimination-entire-market-rule/) - By Jaimeson Fedell. Full text here. This Note argues that the entire market value rule is an obsolete conception because it can award companies for value they did not create. Accordingly, the rule should be abandoned entirely and replaced with reasonable royalty calculations that focus on past licensing agreements if they are available. lawreview - Minnesota Law Review - [Spillover Across Remedies](https://minnesotalawreview.org/article/spillover-remedies/) - By Michael Coenen. Full text here. Remedies influence rights, and rights apply across remedies. Combined together, these two phenomena produce the problem of spillover across remedies. The spillover problem occurs when considerations specific to a single remedy affect the definition of a substantive rule that governs in multiple remedial settings. For example, the severe remedial consequences lawreview - Minnesota Law Review - [Substituted Compliance and Systemic Risk: How to Make a Global Market in Derivatives Regulation](https://minnesotalawreview.org/article/substituted-compliance-systemic-risk-global-market-derivatives-regulation/) - By Sean J. Griffith. Full text here. International financial regulators have sought to contain the systemic risk of OTC derivatives transactions by introducing mandatory clearing. In the absence of a global financial regulator, however, this regulatory approach must be implemented by national actors. Fearing the prospect of regulatory arbitrage, regulators have sought to impose global uniformity lawreview - Minnesota Law Review - [Family Assimilation Demands and Sexual Minority Youth](https://minnesotalawreview.org/article/family-assimilation-demands-sexual-minority-youth/) - By Orly Rachmilovitz. Full text here. In recent years, legal scholars have paid considerable attention to the social and legal pressures to assimilate into mainstream culture that minority groups experience (“assimilation demands”) in the public sphere. Commentators have written about assimilation demands on sexual minority identities in politics, the workplace, schools, and in communities of color. lawreview - Minnesota Law Review - [Slutwalking in the Shadow of the Law](https://minnesotalawreview.org/article/slutwalking-shadow-law/) - By Deborah Tuerkheimer. Full text here. This Article examines the convergence of two seemingly contradictory developments. One is the widespread rape of women by acquaintances, dates, and intimates, mostly without legal recourse. The other is the emergence of a generation of women who embrace a pro-sex orientation and define their sexualities accordingly. To date, legal theorists lawreview - Minnesota Law Review - [Note: That’s Not on the Table: Why Employers Should Pay for the Walk from the Locker Room to the Work Station](https://minnesotalawreview.org/article/thats-table-employers-pay-walk-locker-room-work-station/) - By Emily E. Mawer. Full text here. The Fair Labor Standards Act requires employers to pay their employees continuously throughout the day, even for activities such as travel time, which may not be considered work. However, § 203(o) of the statute provides an exception to that obligation. The provision states that if the employer has established lawreview - Minnesota Law Review - [Note: Status Update: Adapting the Stored Communications Act to a Modern World](https://minnesotalawreview.org/article/status-update-adapting-stored-communications-act-modern-world/) - By Jake Vandelist. Full text here. This Note addresses the Stored Communications Act’s application to civil discovery. Congress passed the Stored Communications Act in 1986 to extend Fourth Amendment protection to electronic communications and remote computing. Congress never intended for the SCA to limit civil discovery of these communications, however, judges have expanded the SCA’s scope lawreview - Minnesota Law Review - [Note: Changing Course to Navigate the Patent Safe Harbor Post-Momenta](https://minnesotalawreview.org/article/changing-navigate-patent-safe-harbor-post-momenta/) - By Emily M. Wessels. Full text here. The patent safe harbor, 35 U.S.C. § 271(e)(1), codifies an exception to the general concept of patent exclusivity that excuses entities from infringement liability for activities reasonably related to submitting information under federal laws that regulate drugs. For the past three decades, this provision has operated in a pharmaceutical lawreview - Minnesota Law Review - [“Easy In, Easy Out”: A Future for U.S. Workplace Representation](https://minnesotalawreview.org/article/easy-in-easy-ou-future-us-workplace-representation/) - By Samuel Estreicher. Full text here. This paper proposes an amendment to our basic labor laws that I call “easy in, easy out.” Essentially, representation elections—secret-ballot votes to decide whether employees want union representation and whether they want to be represented by the particular petitioning labor organization(s)—in relatively broad units, would, over time, become automatic. Every lawreview - Minnesota Law Review - [Trilogy Redux: Using Arbitration to Rebuild the Labor Movement](https://minnesotalawreview.org/article/trilogy-redux-arbitration-rebuild-labor-movement/) - By Ann C. Hodges. Full text here. The Supreme Court is in the midst of a revolution in arbitration jurisprudence comparable to that reflected in the Steel-workers Trilogy in 1960. While the Trilogy was hailed as a major accomplishment in labor relations, the current revolution is devastating the rights of nonunion workers and consumers. The Court’s lawreview - Minnesota Law Review - [Labor’s Soft Means and Hard Challenges: Fundamental Discrepancies and the Promise of Non-Binding Arbitration for International Framework Agreements](https://minnesotalawreview.org/article/labors-soft-means-hard-challenges-fundamental-discrepancies-promise-non-binding-arbitration-international-framework-agreements/) - By César F. Rosado Marzán. Full text here. Globalization has led to union decline almost universally across the world’s capitalist democracies. But despite globalization, global labor unions have been able to sign International Framework Agreements (IFAs) with more than 110 multinational corporations that cover about 9 million workers, excluding contractors and suppliers. IFAs are agreements signed lawreview - Minnesota Law Review - [Whither Wagner? Reconsidering Labor Law and Policy Reform](https://minnesotalawreview.org/article/whither-wagner-reconsidering-labor-law-policy-reform/) - By Sara Slinn. Full text here. Although Canada and the United States have both adopted labor relations legal frameworks based on the Wagner model, labor relations have played out very differently in the two countries. This is particularly evident in the countries’ divergent trajectories of changing union density. In recent decades the United States has experienced lawreview - Minnesota Law Review - [Less Is More: A Case for Structural Reform of the National Labor Relations Board](https://minnesotalawreview.org/article/more-case-structural-reform-national-labor-relations-board/) - By Zev J. Eigen & Sandro Garofalo. Full text here. Historically, the National Labor Relations Board (NLRB or Board) has interpreted the unfair labor practice provisions of the National Labor Relations Act (NLRA or Act) primarily through the adjudication of individual cases involving charges against employers or unions. Because control of the Board shifts back and lawreview - Minnesota Law Review - [Keynote Address: The Pattern of Union Decline, Economic and Political Consequences, and the Puzzle of a Legislative Response](https://minnesotalawreview.org/article/keynote-address-pattern-union-decline-economic-political-consequences-puzzle-legislative-response/) - By Craig Becker. Full text here. The Keynote Address at the Volume 98 Minnesota Law Review Symposium explores the question of the future of organized labor in the United States. lawreview - Minnesota Law Review - [Compliance of the United States with International Labor Law](https://minnesotalawreview.org/article/compliance-united-states-international-labor-law/) - By David Weissbrodt & Matthew Mason. Full text here. The United States is one of 185 member states of the International Labour Organization (ILO). Despite holding a permanent seat on the ILO Governing Body, the United States is a party to only 14 of the 189 labor conventions and two of eight core conventions. The United lawreview - Minnesota Law Review - [Guns, Firms, and Zeal: Deconstructing Labor-Management Relations and U.S. Employment Policy](https://minnesotalawreview.org/article/guns-firms-zeal-deconstructing-labor-management-relations-us-employment-policy/) - By Philip A. Miscimarra. Full text here. Jared Diamond has received wide acclaim for his Pulitzer Prize-winning book—Guns, Germs, and Steel: The Fates of Human Societies—which charts the path of human history. Professor Diamond asks why Europeans explored and dominated populations in North America and Africa, rather than the other way around, and he concludes that lawreview - Minnesota Law Review - [Boeing, the IAM, and the NLRB: Why U.S. Labor Law Is Failing](https://minnesotalawreview.org/article/boeing-iam-nlrb-why-us-labor-law-is-failing/) - By Julius G. Getman. Full text here. In April 2011, the National Labor Relations Board’s Acting General Counsel, Lafe Solomon, issued a complaint against The Boeing Company. The complaint alleged that Boeing violated the National Labor Relations Act by shifting assembly work on its 787 Dreamliner from Everett, Washington, to North Charleston, South Carolina. According to lawreview - Minnesota Law Review - [Note: Death and Taxes: The Crushing Tax Burden After a Student Loan Is Discharged Due to Death of a Student](https://minnesotalawreview.org/article/death-taxes-crushing-tax-burden-student-loan-discharged-due-death-student/) - By Terran Chambers. Full text here. The country is currently facing a student loan crisis, with the amount of outstanding student loan debt exceeding the amount of credit card and auto loan debt. Students, often uninformed of the intricacies in their lending options, may have the option to choose federal or private student loans. Unbeknownst to lawreview - Minnesota Law Review - [Note: State Sexual Harassment Definitions and Disaggregation of Sex Discrimination Claims](https://minnesotalawreview.org/article/state-sexual-harassment-definitions-disaggregation-sex-discrimination-claims/) - By Eleanor Frisch. Full text here. Sex discrimination hostile work environment jurisprudence has developed along two separate lines. Claims for harassment based on sexual advances or other sexual conduct constitute “sexual harassment” and must fulfill the sexual-specific definitions and rules developed by courts and the EEOC. On the other hand, hostile work environment claims based on lawreview - Minnesota Law Review - [Note: Oh the Places Stockholders Will Go! A Guide for Navigating Forum Selection Bylaws Outside of Delaware](https://minnesotalawreview.org/article/places-stockholders-go-guide-navigating-forum-selection-bylaws-outside-delaware/) - By Stephanna F. Szotkowski. Full text here. Until 2010, stockholders initiated intra-corporate, derivative suits by default in the state of incorporation. Vice Chancellor Laster of the Delaware Court of Chancery suggested in dicta in In re Revlon that boards of directors and stockholders could include an exclusive forum selection clause in their charter provisions. One year lawreview - Minnesota Law Review - [National Security and the Constitution: A Conversation Between Walter F. Mondale and Robert A. Stein](https://minnesotalawreview.org/article/national-security-constitution-conversation-walter-f-mondale-robert-a-stein/) - By Walter F. Mondale, Robert A. Stein, & Monica C. Fahnhorst. Full text here. Professor Robert A. Stein, Dean of the University of Minnesota Law School for fifteen years and former Chief Operating Officer of the American Bar Association, endowed this lecture series to enrich the program of the University of Minnesota Law School by inviting lawreview - Minnesota Law Review - [Exposed](https://minnesotalawreview.org/article/exposed/) - By Derek E. Bambauer. Full text here. The production of intimate media—amateur, sexually explicit photos and videos—by consenting partners creates social value that warrants increased copyright protection. The unauthorized distribution of these media, such as via revenge porn, threatens to chill their output. To date, scholarly attention to this problem has focused overwhelmingly on privacy and lawreview - Minnesota Law Review - [Entrapped: A Reconceptualization of the Obedience to Orders Defense](https://minnesotalawreview.org/article/entrapped-reconceptualization-obedience-orders-defense/) - By Monu Bedi. Full text here. “I was just following orders,” and, “The government made me do it,” are phrases from two different criminal law defenses: obedience to orders and entrapment. A military defense, obedience to orders allows a soldier to escape liability by arguing that she was obeying orders when she committed the supposed crime. lawreview - Minnesota Law Review - [The Incidental Regulation of Policing](https://minnesotalawreview.org/article/incidental-regulation-policing/) - By Seth W. Stoughton. Full text here. What do the laws governing municipal annexation, collective bargaining, and race-conscious employment decisions have in common? Each plays a significant and underappreciated role in shaping local law enforcement practices even though each, on its face, has nothing to do with policing. This Article explores the incidental regulation of policing, lawreview - Minnesota Law Review - [A Theory for Deliberation-Oriented Stress Testing Regulation](https://minnesotalawreview.org/article/theory-deliberation-oriented-stress-testing-regulation/) - By Robert Weber. Full text here. This Article presents a theory for how policymakers should use stress testing as a tool of financial regulation. In finance, a stress test is an exercise gauging how an institution or system will respond to severe, yet plausible, stressed conditions such as stock market crashes, high unemployment rates, liquidity shortages, lawreview - Minnesota Law Review - [Crowdsourcing Public Health Experiments: A Response to Jonathan Darrow's Crowdsourcing Clinical Trials](https://minnesotalawreview.org/article/crowdsourcing-public-health-experiments-response-jonathan-darrows-crowdsourcing-clinical-trials-2/) - By Ameet Sarpatwari, Christopher T. Robertson, David V. Yokum & Keith Joiner. Full text here. We are pleased to have this opportunity to respond to Jonathan Darrow’s article, Crowdsourcing Clinical Trials (CCT). We seek to highlight its important contributions and to commence debate over some of its arguments. In particular, we qualify the ethical arguments that lawreview - Minnesota Law Review - [Note: HIPAA-Cratic or HIPAA-Critical: U.S. Privacy Protections Should Be Guaranteed By Covered Entities Working Abroad](https://minnesotalawreview.org/article/hipaa-cratic-hipaa-critical-u-s-privacy-protections-guaranteed-covered-entities-working/) - By Grace Fleming. Full text here. Clinical research has increasingly moved outside of U.S. borders sparking debate over the legal and ethical requirements for clinical researchers and research sponsors conducting studies overseas. Parallel to overseas research expansion, privacy and privacy rights in healthcare are being recognized as fundamental rights. The strength of privacy protections is being lawreview - Minnesota Law Review - [Note: Confronting Victims: Why the Statements of Young Victims of Heinous Crimes Must Still Be Subject to Cross-Examination](https://minnesotalawreview.org/article/confronting-victims-statements-young-victims-heinous-crimes-subject-cross-examination/) - By Joseph Meyer. Full text here. The case of Crawford v. Washington has turned upside down the traditional Confrontation Clause jurisprudence under Ohio v. Roberts. Now, prosecutors must produce for cross-examination the declarants of all testimonial hearsay that is admitted unless (1) the declarant is shown to be unavailable and (2) there has been a previous lawreview - Minnesota Law Review - [Note: Legislating Corporate Social Responsibility: Expanding Social Disclosure Through the Resource Extraction Disclosure Rule](https://minnesotalawreview.org/article/legislating-corporate-social-responsibility-expanding-social-disclosure-resource-extraction-disclosure-rule/) - By Thea Reilkoff. Full text here. The United States has led a growing international effort to increase corporate transparency in the commercial development of natural resources. In 2010, Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act. Section 1504 of this Act requires resource extraction companies to publically disclose, through the Securities and Exchange lawreview - Minnesota Law Review - [Note: Maneuvering the Headwinds Facing Offshore Wind Development in the Great Lakes: Amending the Coastal Zone Management Act](https://minnesotalawreview.org/article/maneuvering-headwinds-facing-offshore-wind-development-great-lakes-amending-coastal-zone-management-act/) - By Sarah Schenck. Full text here. The first United States offshore wind turbine was launched in 2013 off of the coast of Maine. Offshore wind development in the Great Lakes, however, will differ in key ways from development in non-Great Lakes coastal waters. Planning for development in the Great Lakes now would allow government agencies lawreview - Minnesota Law Review - [How Many Wrongs Make a Copyright?](https://minnesotalawreview.org/article/wrongs-copyright/) - By Rebecca Tushnet. Full text here. Derek Bambauer’s provocative paper argues that, because the remedies available to people who suffer unconsented distribution of intimate images of themselves are insufficient, we should amend copyright law to fill the gap. Bambauer’s proposal requires significant changes to every part of copyright—what copyright seeks to encourage, who counts as an lawreview - Minnesota Law Review - [Truthiness: Corporate Public Figures and the Problem of Harmful Truths](https://minnesotalawreview.org/article/truthiness-corporate-public-figures-problem-harmful-truths/) - By Ashutosh Bhagwat. Full text here. This paper is an invited response to Deven Desai's article, Speech, Citizenry, and the Market: A Corporate Public Figure Doctrine. Professor Bhagwat's response piece was scheduled to be published in Volume 98, Issue 3 of the print journal. Due to an editorial oversight, the piece did not go to print lawreview - Minnesota Law Review - [A Conversation Between Justice Ruth Bader Ginsburg and Professor Robert A. Stein](https://minnesotalawreview.org/article/conversation-justice-ruth-bader-ginsburg-professor-robert-a-stein-2/) - Transcript available here. lawreview - Minnesota Law Review - [A Corporate Right to Privacy](https://minnesotalawreview.org/article/corporate-privacy-2/) - By Elizabeth Pollman. Full text here. The debate over the scope of constitutional protections for corporations has exploded with commentary on recent or pending Supreme Court cases, but scholars have left unexplored some of the hardest questions for the future, and the ones that offer the greatest potential for better understanding the nature of corporate rights. lawreview - Minnesota Law Review - [Law's Remarkable Failure to Protect Mistakenly Overpaid Employees](https://minnesotalawreview.org/article/laws-remarkable-failure-protect-mistakenly-overpaid-employees-2/) - By Jim Hawkins. Full text here. Employers frequently make mistakes and overpay their employees. For instance, the federal government alone, which makes up only around 2% of the U.S. workforce, will likely overpay its employees by $2 billion this year. After discovering the error, employers often recoup the mistaken overpayments without the supervision of the courts lawreview - Minnesota Law Review - [Law at the End of War](https://minnesotalawreview.org/article/law-war-2/) - By Deborah N. Pearlstein. Full text here. As the United States continues to withdraw troops from Afghanistan in the coming year, courts will increasingly face the task of interpreting the dozens of federal laws whose operation depends on the existence of war. The 2009 Military Commissions Act (MCA), for instance, makes offenses triable by military commission lawreview - Minnesota Law Review - [The Death of Tax Court Exceptionalism](https://minnesotalawreview.org/article/death-tax-court-exceptionalism-2/) - By Stephanie Hoffer & Christopher J. Walker. Full text here. Tax exceptionalism — the view that tax law does not have to play by the administrative law rules that govern the rest of the regulatory state — has come under attack in recent years. In 2011, the Supreme Court rejected such exceptionalism by holding that judicial lawreview - Minnesota Law Review - [Truthiness: Corporate Public Figures and the Problem of Harmful Truths](https://minnesotalawreview.org/article/1563-2/) - By Ashutosh Bhagwat. Full text here. This paper is an invited response to Deven Desai's article, Speech, Citizenry, and the Market: A Corporate Public Figure Doctrine. lawreview - Minnesota Law Review - [Note: Suppressing Evidence in Immigration Proceedings: The Need for a Lenient Egregiousness Standard and Rebellious Lawyering](https://minnesotalawreview.org/article/note-suppressing-evidence-immigration-proceedings-lenient-egregiousness-standard-rebellious-lawyering/) - By Mikaela A. Devine. Full text here. lawreview - Minnesota Law Review - [Note: The Separate Spheres Ideology: An Improved Empirical and Litigation Approach to Family Responsibilities Discrimination](https://minnesotalawreview.org/article/note-separate-spheres-ideology-improved-empirical-litigation-approach-family-responsibilities-discrimination/) - By Andrea L. Miller. Full text here. lawreview - Minnesota Law Review - [Note: A Manageable Solution with Meaningful Results: Illuminating IRS Enforcement of § 501(c)(3)’s Prohibition on Political Intervention](https://minnesotalawreview.org/article/note-manageable-solution-meaningful-results-illuminating-irs-enforcement-§-501c3s-prohibition-political-intervention/) - By Julia D. Zwak. Full text here. lawreview - Minnesota Law Review - [Bondholders and Securities Class Actions](https://minnesotalawreview.org/article/bondholders-securities-class-actions/) - By James J. Park. Full text here. Prior studies of corporate and securities law litigation have focused almost entirely on cases filed by shareholder plaintiffs. Bondholders are thought to play little role in holding corporations accountable for poor governance that leads to fraud. This Article challenges that conventional view in light of new evidence that bond lawreview - Minnesota Law Review - [More Is More: Strengthening Free Exercise, Speech, and Association](https://minnesotalawreview.org/article/more-strengthening-free-exercise-speech-association/) - By John D. Inazu. Full text here. Prominent scholars have suggested that one important means of strengthening the First Amendment is by limiting its protections to “core” interests. Philip Hamburger has asserted the argument most forcefully. His generalized worry is that expanding the coverage of First Amendment rights can shift absolute protection of a defined core lawreview - Minnesota Law Review - [Disclosing Big Data](https://minnesotalawreview.org/article/disclosing-big-data/) - By Michael Mattioli. Full text here. This Article reveals that the law is failing to adequately encourage producers of “big data” to disclose their most innovative work to the public. “Big data” refers to a new industrial and scientific phenomenon that holds the potential to transform diverse industries—from medicine, to energy, to online services. At the lawreview - Minnesota Law Review - [Death Delayed Is Retribution Denied](https://minnesotalawreview.org/article/death-delayed-retribution-denied/) - By Russell L. Christopher. Full text here. Does death row incarceration for upwards of thirty years or more impermissibly impose the suffering of additional punishment or permissibly bestow the benefit of death delayed and thus the enjoyment of life extended? Most commentators conceive of it as an unconstitutional additional punishment that is either cruel and unusual lawreview - Minnesota Law Review - [Unpacking Patent Assertion Entities (PAEs)](https://minnesotalawreview.org/article/unpacking-patent-assertion-entities-paes/) - By Christopher A. Cotropia, Jay P. Kesan, & David L. Schwartz. Full text here. There is tremendous interest in a certain type of patent litigant—the often-called patent assertion entity (PAE), non-practicing entity (NPE), patent monetization entity (PME), or simply patent troll. These PAEs are the subject of a recent Government Accountability Office report, a possible Federal lawreview - Minnesota Law Review - [Note: Your Local Solar Panel Store: Developing State Laws To Encourage Third-Party Power Purchase Agreements and Distributed Generation](https://minnesotalawreview.org/article/local-solar-panel-store-developing-state-laws-encourage-third-party-power-purchase-agreements-distributed-generation-2/) - By Sam D. Bolstad. Full text here. Solar panels’ high upfront capital costs are the primary hurdle to widespread installation by homeowners and towns. Solar panel companies are addressing this challenge through third-party power purchase agreements (PPAs), wherein a company pays for these costs when it installs the solar panels on-site at the customer’s location. lawreview - Minnesota Law Review - [Note: Treating the Disease or Punishing the Criminal? Effectively Using Drug Court Sanctions To Treat Substance Use Disorder and Decrease Criminal Conduct](https://minnesotalawreview.org/article/treating-disease-punishing-criminal-effectively-drug-court-sanctions-treat-substance-disorder-decrease-criminal-conduct/) - By Caitlinrose Fisher. Full text here. Drug courts have been on the rise for the past few decades, providing an alternative criminal supervision system for individuals struggling with addiction and drug dependence. Drug courts provide an intensive supervision model by responding swiftly to probation violations with a series of graduated sanctions. Assuming that drug courts are lawreview - Minnesota Law Review - [Note: Fine-Tuning the Tax Whistleblower Statute: Why Qui-tam Is Not a Solution](https://minnesotalawreview.org/article/fine-tuning-tax-whistleblower-statute-qui-tam-solution-2/) - By Sung Woo “Matt” Hu. Full text here. Under the Internal Revenue Code, tax whistleblowers can be rewarded up to thirty percent of the collected proceeds when the IRS successfully collects delinquent amounts from tax evaders based on the information provided by those whistleblowers. However, whistleblowers are left with no remedy if the IRS decides not lawreview - Minnesota Law Review - [The Constitutional Limit of Zero Tolerance in Schools](https://minnesotalawreview.org/article/constitutional-limit-tolerance-schools/) - By Derek W. Black. Full text here. With the introduction of modern zero tolerance policies and harsh approaches to discipline, schools now punish much more behavior than they ever have before. The underlying problem is that not all behavior for which schools are expelling and suspending students is bad or serious. Schools have expelled the lawreview - Minnesota Law Review - [Reconceptualizing Non-Article III Tribunals](https://minnesotalawreview.org/article/reconceptualizing-non-article-iii-tribunals/) - By Jaime Dodge. Full text here. The Supreme Court’s Article III doctrine is built upon an explicit assumption that Article III must accommodate non-Article III tribunals in order to allow Congress to “innovate” by creating new procedural structures to further its substantive regulatory goals. In this Article, I challenge that fundamental assumption. I argue that each lawreview - Minnesota Law Review - [The Green Option](https://minnesotalawreview.org/article/green-option/) - By Gideon Parchomovsky & Endre Stavang. Full text here. In this Article, we introduce an innovative market-based mechanism designed for the advancement of environmental goals. We propose enacting legislation that would empower (but not force) green firms to transfer a call option over a block of their shares to a publicly traded company of their choice. lawreview - Minnesota Law Review - [Choice-of-Law as Non-Constitutional Federal Law](https://minnesotalawreview.org/article/choice-of-law-non-constitutional-federal-law/) - By Mark D. Rosen. Full text here. Domestic choice-of-law is widely bemoaned for being a chaotic mess, with states using a half dozen different approaches. But if we praise ‘our federalism’ for allowing states to adopt divergent laws that best reflect their citizens’ distinctive values, why are different tort and family laws across states normatively acceptable lawreview - Minnesota Law Review - [Note: When Volunteers Become Employees: Using a Threshold-Remuneration Test Informed by the Fair Labor Standards Act To Distinguish Employees from Volunteers](https://minnesotalawreview.org/article/volunteers-employees-threshold-remuneration-test-informed-fair-labor-standards-act-distinguish-employees-volunteers/) - By Emily Bodtke. Full text here. Despite the recognized importance of determining who is an “employee” for purposes of legal coverage, the concept remains unsettled. The confusion over how to define “employee” is now spreading to upset the boundary between employees and volunteers. As voluntarily unpaid workers increasingly bring lawsuits alleging discrimination under federal statutes, a lawreview - Minnesota Law Review - [Note: Treating Adults Like Children: Re-Sentencing Adult Juvenile Lifers After Miller v. Alabama](https://minnesotalawreview.org/article/treating-adults-children-re-sentencing-adult-juvenile-lifers-miller-v-alabama/) - By Brianna H. Boone. Full text here. Miller v. Alabama continued the trend in Supreme Court cases finding that juvenile criminal offenders are less culpable than adult offenders, by holding that states cannot sentence juvenile offenders to mandatory life without parole. The Court held that it is cruel and unusual punishment to sentence a juvenile to lawreview - Minnesota Law Review - [Note: Stimulating Dialogue Between the Courts and Congress: Sprucing Up the “Statutory Housekeeping” Project](https://minnesotalawreview.org/article/stimulating-dialogue-courts-congress-sprucing-statutory-housekeeping-project/) - By Jeff Simard. Full text here. Gluck and Bressman’s recent survey of legislative drafters suggests that judges who interpret and construe statutes are not on the same page as those who draft and revise them. This disconnect seems especially glaring in light of the rise of statute-based law and the increasing impact that judicial statutory interpretation lawreview - Minnesota Law Review - [When is HIV a Crime? Sexuality, Gender, and Consent](https://minnesotalawreview.org/article/hiv-crime-sexuality-gender-consent/) - By Kim Shayo Buchanan. Full text here. HIV criminalization is difficult to justify on the grounds advanced for it: public health and moral retribution. This Article engages with a third, underexamined rationale for HIV criminalization: sexual autonomy. Nondisclosure prosecutions purport to ensure “informed consent” to sex. However, almost all other forms of sexual deception—including deceptions that lawreview - Minnesota Law Review - [Structural Reform Litigation in American Police Departments](https://minnesotalawreview.org/article/structural-reform-litigation-american-police-departments/) - By Stephen Rushin. Full text here. In 1994, Congress passed 42 U.S.C. § 14141, a statute authorizing the Attorney General to seek equitable relief against local and state police agencies that are engaged in a pattern or practice of unconstitutional misconduct. Although police departments in some of the nation’s largest cities have now undergone this sort lawreview - Minnesota Law Review - [Duress as Rent-Seeking](https://minnesotalawreview.org/article/duress-rent-seeking/) - By Mark Seidenfeld & Murat C. Mungan. Full text here. The doctrine of duress allows a party to avoid its contractual obligations when that party was induced to enter the contract by a wrongful threat while in a dire position that left it no choice but to enter the contract. Although threats of criminal or tortious lawreview - Minnesota Law Review - [Resurrecting Trial by Statistics](https://minnesotalawreview.org/article/resurrecting-trial-statistics/) - By Jay Tidmarsh. Full text here. “Trial by statistics” was a means by which a court could resolve a large number of aggregated claims: a court could try a random sample of claims and extrapolate the average result to the remainder. In Wal-Mart, Inc. v. Dukes, the Supreme Court seemingly ended the practice at the federal lawreview - Minnesota Law Review - [Note: Knowledge Is Power: How Implementing Affirmative Disclosures Under the JOBS Act Could Promote and Protect Benefit Corporations and Their Investors](https://minnesotalawreview.org/article/note-knowledge-power-implementing-affirmative-disclosures-jobs-act-promote-protect-benefit-corporations-investors/) - By Laura A. Farley. Full text here. Benefit corporations are a new type of business entity that combine the notions of for-profit finances with the public and mission-based goals of non-profits, thus creating a unique business model that is just now gaining traction. Despite its popularity, the benefit corporation entity often faces financial difficulty because of lawreview - Minnesota Law Review - [Note: Beating the Odds: The Public Policy of Drug Efficacy and Safety](https://minnesotalawreview.org/article/note-beating-odds-public-policy-drug-efficacy-safety/) - By Noah Lewellen. Full text here. Decisions in the Supreme Court and, more recently, the Ninth Circuit have cast doubt on the role of statistical significance in drug development. In United States v. Harkonen, the defendant Harkonen was convicted of fraud for advertising successful testing of a drug when, in fact, the tests had not revealed lawreview - Minnesota Law Review - [Note: A Chilling Experience: An Analysis of the Legal and Ethical Issues Surrounding Egg Freezing, and a Contractual Solution](https://minnesotalawreview.org/article/note-chilling-experience-analysis-legal-ethical-issues-surrounding-egg-freezing-contractual-solution/) - By Alicia J. Paller. Full text here. If you Google “egg freezing,” you will find numerous newspaper and magazine articles discussing this new reproductive technology. You will also encounter countless clinics currently helping women extract and freeze their eggs. You might find an occasional warning about the potential risks associated with egg freezing, as the media lawreview - Minnesota Law Review - [Foreword, Minnesota Law Review Symposium](https://minnesotalawreview.org/article/foreword-minnesota-law-review-symposium-2/) - By Carla J. Virlee. Full text here. lawreview - Minnesota Law Review - [Substituting Effective Community Supervision for Incarceration](https://minnesotalawreview.org/article/substituting-effective-community-supervision-incarceration/) - By Mark A.R. Kleiman. Full text here. Community supervision systems—chiefly probation and parole—handle many more offenders than do the prisons and the jails. Typically, offenders subject to community supervision face only unsystematic attempts to monitor their compliance with probation or parole conditions, and are subject to sporadic and delayed, but occasionally severe, sanctions for non-compliance: a lawreview - Minnesota Law Review - [What Are We Hoping For? Defining Purpose in Deterrence-Based Correctional Programs](https://minnesotalawreview.org/article/hoping-for-defining-purpose-deterrence-based-correctional-programs/) - By Cecelia Klingele. Full text here. One of the most popular program models in criminal justice today is that popularized by Hawaii Opportunity Probation with Enforcement (HOPE). HOPE and other programs like it grow out of research suggesting that the most effective way to prevent violations of conditions of supervision is to more accurately detect them, lawreview - Minnesota Law Review - [HOPE Probation and the New Drug Court: A Powerful Combination](https://minnesotalawreview.org/article/hope-probation-drug-court-powerful-combination/) - By Judge Steven S. Alm. Full text here. Traditional felony probation programs in the United States often suffer from poor probationer compliance. In spite of dedicated and skilled probation officers using Evidence Based Principles, many probationers fail to successfully complete probation nationwide. Part of this systemic problem is an inability of Probation Officers and the Court lawreview - Minnesota Law Review - [The Burdens of Leniency: The Changing Face of Probation](https://minnesotalawreview.org/article/burdens-leniency-changing-face-probation/) - By Ronald P. Corbett, Jr. Full text here. Since its inception in the mid-1800s, probation has been the sentence of choice in America’s criminal courts, accounting for approximately two-thirds of those under state correctional control, the balance of offenders incarcerated. As such, probation has been widely conceived of as a grant of leniency, a humane alternative lawreview - Minnesota Law Review - [The Economic Rehabilitation of Offenders: Recommendations of the Model Penal Code (Second)](https://minnesotalawreview.org/article/economic-rehabilitation-offenders-recommendations-model-penal-code-second-2/) - By Kevin R. Reitz. Full text here. It is well known that the United States. is the most punitive society in the world in the use of incarceration, and is in the “upper” tier of worldwide severity in use of the death penalty. Very recently, awareness has been growing that the United States, is equally exceptional lawreview - Minnesota Law Review - [The Benefits and Costs of Economic Sanctions: Considering the Victim, the Offender, and Society](https://minnesotalawreview.org/article/benefits-costs-economic-sanctions-victim-offender-society/) - By R. Barry Ruback. Full text here. A consideration of economic sanctions must distinguish between the types and purposes of the different sanctions. Costs and fees refer to charges the offender must pay to reimburse the state for the administrative costs of operating the criminal justice system, although there is some variance in how the terms lawreview - Minnesota Law Review - [Improving Economic Sanctions in the States](https://minnesotalawreview.org/article/improving-economic-sanctions-states/) - By Jessica M. Eaglin. Full text here. Economic sanctions in the United States justice system have acquired newfound attention from the public and policymakers across the country in recent years. As states reconsider excessively severe sentences for low level offenders captured in the justice system, there is a renewed interest in using alternatives to incarceration—including lawreview - Minnesota Law Review - [Piling On: Collateral Consequences and Community Supervision](https://minnesotalawreview.org/article/piling-on-collateral-consequences-community-supervision/) - By Christopher Uggen & Robert Stewart. Full text here. While there has been great legal, media, and policy interest in the collateral effects of imprisonment, far less attention has been devoted to collateral consequences during and after periods of community supervision. Such consequences are wide-ranging, placing limits on education, employment, family rights, gun ownership, housing, immigration lawreview - Minnesota Law Review - [Civil Death in Modern Times: Reconsidering Felony Disenfranchisement in Minnesota](https://minnesotalawreview.org/article/civil-death-modern-times-reconsidering-felony-disenfranchisement-minnesota/) - By Mark Haase. Full text here. Civil death is a legal status with roots in ancient Greece and brought to the American colonies from England. It deprived individuals convicted of certain offenses, often those with capital or life sentences, of all of their legal rights. Although civil death mostly disappeared in the mid-twentieth century, one of lawreview - Minnesota Law Review - [Note: The Case Against Self-Representation in Capital Proceedings](https://minnesotalawreview.org/article/case-self-representation-capital-proceedings/) - By Max S. Meckstroth. Full text here. In 1972, the Supreme Court decided Furman v. Georgia, holding that the death penalty was being applied arbitrarily and capriciously—rendering its application unconstitutional. Three years later, while the death penalty was still considered unconstitutional, the Supreme Court in Faretta v. California held that the Sixth Amendment implied the right lawreview - Minnesota Law Review - [Note: Inter Partes Review: Ensuring Effective Patent Litigation Through Estoppel](https://minnesotalawreview.org/article/inter-partes-review-ensuring-effective-patent-litigation-estoppel/) - By Ann E. Motl. Full text here. Inter partes review (IPR) is a relatively new proceeding before the Patent and Trademark Office in which a petitioner requests administrative patent judges to review an issued patent and declare its claims invalid. After IPR, the petitioner can continue to litigate patent validity in federal court. However, this second lawreview - Minnesota Law Review - [Note: No Longer Available: Critiquing the Contradictory Ways Courts Treat Exclusive Arbitration Forum Clauses when the Forum Can No Longer Arbitrate](https://minnesotalawreview.org/article/longer-available-critiquing-contradictory-ways-courts-treat-exclusive-arbitration-forum-clauses-forum-longer-arbitrate/) - By Nicole Wanlass. Full text here. A number of contracts contain clauses mandating that any disputes arising under the contract must be resolved through arbitration by a particular forum. However, disputes over these contracts can end up in court when the exclusive arbitration forum cannot, or will not, arbitrate them. Under 9 U.S.C. § 5, a lawreview - Minnesota Law Review - [Good Faith and Fair Dealing as an Underenforced Legal Norm](https://minnesotalawreview.org/article/good-faith-fair-dealing-underenforced-legal-norm/) - By Paul MacMahon. Full text here. American contract law includes a duty of good faith and fair dealing in the performance of every contract. The duty appears, on first reading, to authorize judges to attach sanctions whenever one party to a contract acts unreasonably towards another. But judicial practice very often falls short of such an lawreview - Minnesota Law Review - [Should Agencies Enforce?](https://minnesotalawreview.org/article/agencies-enforce/) - By Max Minzner. Full text here. This Article explores an important but understudied structural choice: the decision to vest enforcement authority in administrative agencies. Each year, agencies routinely bring enforcement actions producing billions of dollars in civil penalties and industry-reshaping consent decrees. Where do they get this power? Congress grants enforcement authority to administrative agencies because lawreview - Minnesota Law Review - [Sue To Adapt?](https://minnesotalawreview.org/article/sue-adapt/) - By Jacqueline Peel & Hari M. Osofsky. Full text here. Climate change litigation has influenced regulation substantially in the United States. Most notably, the Supreme Court’s decision in Massachusetts v. EPA serves as the basis for federal Clean Air Act regulation of greenhouse gas emissions from motor vehicles and power plants. However, most U.S. litigation thus lawreview - Minnesota Law Review - [Strengthening Federalism: The Uniform State Law Movement in the United States](https://minnesotalawreview.org/article/strengthening-federalism-uniform-state-law-movement-united-states/) - By Robert A. Stein. Full text here. This Article addresses the importance of uniform state laws in maintaining and strengthening federalism in the United States. The federal system of government established by the Constitution depends on an appropriate balance of federal and state law. Under the Tenth Amendment to the Constitution, powers not delegated to lawreview - Minnesota Law Review - [Privacy and Organizational Persons](https://minnesotalawreview.org/article/privacy-organizational-persons/) - By Eric W. Orts & Amy Sepinwall. Full text here. This Article responds to an argument made recently by Elizabeth Pollman that corporations should not be deemed to have “constitutional privacy rights” in “most circumstances.” Setting forth an alternative conception of organizational rights and examining different meanings of “privacy,” the Article contends that courts should tread lawreview - Minnesota Law Review - [Note: Clarifying the Standards for Personal Jurisdiction in Light of Growing Transactions on the Internet: The Zippo Test and Pleading of Personal Jurisdiction](https://minnesotalawreview.org/article/clarifying-standards-personal-jurisdiction-light-growing-transactions-internet-zippo-test-pleading-personal-jurisdiction/) - By Annie Soo Yeon Ahn. Full text here. Currently, despite the vast and attractive Internet market, the Supreme Court has not ruled definitively on which test should govern personal jurisdiction in cases involving transactions on the Internet. As a result, different tests and diverging results have developed concerning the constitutionality of specific jurisdiction on the Internet, lawreview - Minnesota Law Review - [Note: Bad Blood: An Examination of the Constitutional Deficiencies of the FDA’s “Gay Blood Ban”](https://minnesotalawreview.org/article/bad-blood-examination-constitutional-deficiencies-fdas-gay-blood-ban/) - By Mathew L. Morrison. Full text here. The LGBT community has made great strides in attaining legal rights, beginning largely with Lawrence v. Texas and, to date, culminating with Windsor v. United States. These decisions have granted a broad array of rights, and many argue that the right of same-sex couples to marry nationwide is inevitable. lawreview - Minnesota Law Review - [Back to the Future? Legal Scholarship in the Progressive Era and Today](https://minnesotalawreview.org/article/future-legal-scholarship-progressive-era-today/) - By Daniel A. Farber. Full text here. This Article introduces Volume 100 of the Minnesota Law Review. Like much of legal scholarship today, Issue 1 was deeply and unapologetically embedded in the concerns of its day, which was on the cusp between the Progressive Era and the outbreak of World War I. It is not uncommon lawreview - Minnesota Law Review - [Against Jawboning](https://minnesotalawreview.org/article/jawboning/) - By Derek E. Bambauer. Full text here. Despite the trend towards strong protection of speech in U.S. Internet regulation, federal and state governments still seek to regulate online content. They do so increasingly through informal enforcement measures, such as threats, at the edge of or outside their authority—a practice this Article calls “jawboning.” The Article argues lawreview - Minnesota Law Review - [Revitalizing Dormant Commerce Clause Review for Interstate Coordination](https://minnesotalawreview.org/article/revitalizing-dormant-commerce-clause-review-interstate-coordination/) - By Alexandra B. Klass & Jim Rossi. Full text here. Interstate coordination presents one of the most difficult challenges for American federalism as well as for energy markets and policy. Existing laws vest the approval of large-scale energy infrastructure projects such as interstate oil pipelines and high-voltage, interstate electric transmission lines with state and local levels lawreview - Minnesota Law Review - [Why Rape Should Not (Always) Be a Crime](https://minnesotalawreview.org/article/rape-always-crime/) - By Katharine K. Baker. Full text here. This Article argues that the criminal law is simply not up to the task of policing a huge amount of sexual assault. The on-going initiative to curb the prevalence of sexual misconduct on college campuses abandons the criminal law and uses discrimination doctrine to dislodge the norms that criminal lawreview - Minnesota Law Review - [Outrageous and Irrational](https://minnesotalawreview.org/article/outrageous-irrational/) - By Jane R. Bambauer & Toni M. Massaro. Full text here. A wealth of scholarship comments on enumerated and unenumerated fundamental rights, such as freedom of speech, the right to marital privacy, and suspect classifications that trigger elevated judicial scrutiny. This Article discusses the other constitutional cases—the ones that implicate no fundamental right or suspect classification, lawreview - Minnesota Law Review - [Note: Social Group Semantics: The Evidentiary Requirements of “Particularity” and “Social Distinction” in Pro Se Asylum Adjudications](https://minnesotalawreview.org/article/social-group-semantics-evidentiary-requirements-particularity-social-distinction-pro-se-asylum-adjudications/) - By Nicholas R. Bednar. Full text here. The Board of Immigration Appeals (BIA) has turned the particular social group standard into a game of semantics. This Note argues that this game’s evidentiary requirements disfavor pro se asylum applicants by requiring sociological evidence—primarily in the form of expert testimony. An applicant applying for asylum on the basis lawreview - Minnesota Law Review - [Note: Remodeling “Model Aircraft”: Why Restrictive Language That Grounded the Unmanned Industry Should Cease To Govern It](https://minnesotalawreview.org/article/remodeling-model-aircraft-restrictive-language-grounded-unmanned-industry-cease-govern/) - By Maxwell Mensinger. Full text here. The notion of a “next frontier” is in perpetual flux. Our understanding thereof shifts towards those concepts with the potential for change and growth. A century ago, with the development of commercial flight, airspace seemed to qualify as the next frontier. Today, drone technology has revitalized this same interest in lawreview - Minnesota Law Review - [Note: A Merry-Go-Round of Metal and Manipulation: Toward a New Framework for Commodity Exchange Self-Regulation](https://minnesotalawreview.org/article/merry-go-round-metal-manipulation-framework-commodity-exchange-self-regulation/) - By Samuel D. Posnick. Full text here. The 2013 revelation of Goldman Sachs’ unsavory aluminum warehousing practices led to public uproar and political backlash. In November 2014, Congress released a damning report detailing Wall Street’s involvement in numerous commodities markets and finding rampant manipulation. As a result, the Federal Reserve is reexamining its regulation of financial lawreview - Minnesota Law Review - [Communicating the Canons: How Lower Courts React When the Supreme Court Changes the Rules of Statutory Interpretation](https://minnesotalawreview.org/article/communicating-canons-courts-react-supreme-court-rules-statutory-interpretation/) - By Aaron-Andrew P. Bruhl. Full text here. From time to time, the Supreme Court changes some aspect of its approach to statutory interpretation. These changes include large-scale shifts on matters such as the relative prominence of textual sources versus legislative history as well as small-scale changes exemplified by the creation, modification, or abandonment of particular interpretive lawreview - Minnesota Law Review - [Equity Crowdfunding: A Market for Lemons?](https://minnesotalawreview.org/article/equity-crowdfunding-market-lemons/) - By Darian M. Ibrahim. Full text here. Angel investors and venture capitalists (VCs) have funded Google, Facebook, and virtually every technological success of the last thirty years. These investors operate in tight geographic networks, which mitigates uncertainty, information asymmetry, and agency costs both pre- and post-investment. It follows, then, that a major concern with equity lawreview - Minnesota Law Review - [The Digital Shareholder](https://minnesotalawreview.org/article/digital-shareholder/) - By Andrew A. Schwartz. Full text here. Crowdfunding, a new Internet-based securities market, was recently authorized by federal and state law in order to create a vibrant, diverse, and inclusive system of entrepreneurial finance. But will people really send their money to strangers on the Internet in exchange for unregistered securities in speculative startups? Many are doubtful, lawreview - Minnesota Law Review - [Syria, Cost-sharing, and the Responsibility to Protect Refugees](https://minnesotalawreview.org/article/syria-cost-sharing-responsibility-protect-refugees/) - By E. Tendayi Achiume. Full text here. The Syrian refugee crisis is the largest since the Second World War. This Article is the first to analyze the devastating fallout of this crisis, and to propose a novel approach to a perennial international law problem at its center. Nearly all of the more than four million refugees that lawreview - Minnesota Law Review - [Note: Striking Before the Well Goes Dry: Exploring If and How the United States Ban on Crude Oil Exports Should Be Lifted To Exploit the American Oil Boom](https://minnesotalawreview.org/article/striking-dry-exploring-united-states-ban-crude-oil-exports-lifted-exploit-american-oil-boom/) - By Sam Andre. Full text here. President Gerald Ford championed the adoption of the Energy Policy and Conservation Act (EPCA) in 1975 to promote American energy independence through the limiting of American crude oil exports. Through this law and related regulatory provisions, the federal government successfully shielded American energy interests from crises similar to the 1973 lawreview - Minnesota Law Review - [Note: Same-Sex Marriage and Disestablishing Parentage: Reconceptualizing Legal Parenthood Through Surrogacy](https://minnesotalawreview.org/article/same-sex-marriage-disestablishing-parentage-reconceptualizing-legal-parenthood-surrogacy/) - By Michael S. DePrince. Full text here. Parenthood is easily determined when a heterosexual married couple conceives a child through sexual reproduction. The common law marital presumption of parenthood holds that when a child is born into a marriage, the woman, having given birth, is presumed the child’s mother; likewise, the woman’s husband, by virtue of marriage lawreview - Minnesota Law Review - [Note: Rejecting Tax Exceptionalism: Bringing Temporary Treasury Regulations Back in Line with the APA](https://minnesotalawreview.org/article/rejecting-tax-exceptionalism-bringing-temporary-treasury-regulations-line-apa/) - By Eleanor D. Wood. Full text here. The Treasury Department has broad general rulemaking power and has historically used this power to create new regulations promulgated under APA notice-and-comment procedures. However, out of supposed necessity in the 1980s, the Treasury began increasingly using temporary regulations, which follow no such promulgation procedure, yet are binding on taxpayers lawreview - Minnesota Law Review - [Anticompetitive Patent Injunctions](https://minnesotalawreview.org/article/anticompetitive-patent-injunctions-2/) - By Erik Hovenkamp & Thomas F. Cotter. Full text here. The current approach for determining when courts should award injunctions in patent disputes involves a myopic focus on the hardships an injunction might impose on the litigants and the public. This Article demonstrates, however, that courts sometimes could rely instead on a consideration far more relevant lawreview - Minnesota Law Review - [Reconsidering Fictitious Pricing](https://minnesotalawreview.org/article/reconsidering-fictitious-pricing-2/) - By David Adam Friedman. Full text here. Advertised price discounting recently proliferated in retail markets, bringing with it deceptive discounting or “fictitious pricing.” Many retailers advertise discounts based on fictitious or false prior-reference prices. In the immediate post-war era, the Federal Trade Commission (FTC) regularly prosecuted fictitious-pricing cases. The FTC ceased prosecuting those cases in 1969. lawreview - Minnesota Law Review - [Restoring Reason to the Third Party Doctrine](https://minnesotalawreview.org/article/restoring-reason-party-doctrine/) - By Lucas Issacharoff & Kyle Wirshba. Full text here. This Article takes as its starting point the recent turmoil over the continued vitality of the Fourth Amendment’s third party doctrine. The doctrine has long held that the government’s examination of information in the hands of a third party—whether a bank, a telephone company, or simply a lawreview - Minnesota Law Review - [The Distributive Deficit in Law and Economics](https://minnesotalawreview.org/article/distributive-deficit-law-economics/) - By Lee Anne Fennell & Richard H. McAdams. Full text here. Welfarist law and economics ignores the distributive consequences of legal rules to focus solely on efficiency, even though distribution unambiguously affects welfare, the normative maximand. The now-conventional justification for disregarding distribution is the claim of tax superiority: that the best means of influencing or correcting lawreview - Minnesota Law Review - [Note: Haute off the Press: Refashioning Copyright Law To Protect American Fashion Designs from the Economic Threat of 3D Printing](https://minnesotalawreview.org/article/haute-press-refashioning-copyright-law-protect-american-fashion-designs-economic-threat-3d-printing/) - By Anna M. Luczkow. Full text here. Though invented in the early 1980s, three-dimensional (3D) printing recently became a topic of discussion when advancements in the field revealed the technology’s ability to transform industries and revolutionize consumer capabilities. In the past few years, society witnessed everything from 3D-printed prosthetic limbs to children’s toys. While many scholars lawreview - Minnesota Law Review - [Note: Hard Choices: Where To Draw the Line on Limiting Selection in the Selective Reduction of Multifetal Pregnancies](https://minnesotalawreview.org/article/note-hard-choices-draw-line-limiting-selection-selective-reduction-multifetal-pregnancies/) - By Mary A. Scott. Full text here. In the last few years, a growing number of states have enacted or proposed laws that limit a woman’s right to have an abortion when her reasons for seeking the abortion are based on a specific characteristic of the fetus, most notably sex or the presence of a genetic lawreview - Minnesota Law Review - [Note: Incorporating Cost into the Return of Incidental Findings Calculus: Defining a Responsible Default for Genetics and Genomics Researchers](https://minnesotalawreview.org/article/note-incorporating-cost-return-incidental-findings-calculus-defining-responsible-default-genetics-genomics-researchers/) - By Emily Scholtes. Full text here. The debate over returning incidental findings has been a hot topic in medical and legal circles for many years and is described as “one of the thorniest current challenges.” Currently, no federal or state laws regulate the disclosure of these findings. Although many agree that ethical duties arise in returning lawreview - Minnesota Law Review - [Regulating Employment-Based Anything](https://minnesotalawreview.org/article/regulating-employment-based/) - By Brendan S. Maher. Full text here. Benefit regulation has been called “the most consequential subject to which no one pays enough attention.” It exhausts judges, intimidates legislators, and scares off theorists. That need not be so. The reality is less complicated than advertised. Governments often consider intervention if markets fail to make some socially desirable lawreview - Minnesota Law Review - [Antitrust and the Robo-Seller: Competition in the Time of Algorithms](https://minnesotalawreview.org/article/antitrust-robo-seller-competition-time-algorithms-2/) - By Salil K. Mehra. Full text here. Increasingly firms are knitting together newly available mass-data collection, Internet-driven interconnective power, and automated algorithmic selling with their traditional supply chain and sales functions. Traditional sales functions such as competitive intelligence gathering and pricing are being delegated to software “robo-sellers.” This Article offers the first descriptive and normative study of lawreview - Minnesota Law Review - [Financial Weapons of War](https://minnesotalawreview.org/article/financial-weapons-war/) - By Tom C.W. Lin. Full text here. A new type of warfare is upon us. In this new mode of war, finance is the most powerful weapon, bullets dare not fire, financial institutions are the targets, and almost everyone is at risk. Instead of smart bombs, improvised explosives, and unmanned drones––economic sanctions, financial restrictions, and cyber lawreview - Minnesota Law Review - [Regulating Financial Change: A Functional Approach](https://minnesotalawreview.org/article/regulating-financial-change-functional-approach/) - By Steven L. Schwarcz. Full text here. How should we think about regulating our dynamically changing financial system? Existing regulatory approaches have two temporal flaws. The obvious flaw, driven by politics and human nature (and addressed in other writings), is that financial regulation is overly reactive to past crises. This article addresses a less obvious but lawreview - Minnesota Law Review - [Rethinking Technology Neutrality](https://minnesotalawreview.org/article/rethinking-technology-neutrality/) - By Brad A. Greenberg. Full text here. Technology progresses at an increasingly rapid rate; Congressional action does not. How then should laws be drafted to keep pace with changes to the world they regulate? Scholars and legislators have overwhelmingly answered that laws should anticipate unexpected technologies through ex ante statutory inclusion. “Technology neutrality,” as this principle lawreview - Minnesota Law Review - [The Secret History of the Bluebook](https://minnesotalawreview.org/article/secret-history-bluebook/) - By Fred R. Shapiro & Julie Graves Krishnaswami. Full text here. The Bluebook, or A Uniform System of Citation as it was formerly titled, has long been a significant component of American legal culture. The standard account of the origins of the Bluebook, deriving directly from statements made by longtime Harvard Law School Dean and lawreview - Minnesota Law Review - [Note: The Shoe Doesn’t Fit: General Jurisdiction Should Follow Corporate Structure](https://minnesotalawreview.org/article/shoe-doesnt-fit-general-jurisdiction-follow-corporate-structure/) - By Seungwon Chung. Full text here. Increasingly, corporations are moving away from a centralized corporate structure toward decentralization and fragmentation of corporate functions. At the same time, the corporate general jurisdiction doctrine functions anachronistically—assuming that corporations exist solely as centralized structures. The Supreme Court’s recent decision in Daimler AG v. Bauman reflects this assumption. By drawing lawreview - Minnesota Law Review - [Note: Live Long and Prosper: How the Persistent and Increasing Popularity of Fan Fiction Requires a New Solution in Copyright Law](https://minnesotalawreview.org/article/live-long-prosper-persistent-increasing-popularity-fan-fiction-requires-solution-copyright-law/) - By Brittany Johnson. Full text here. For decades, fans have written stories that extend the plotlines of popular films, novels, and television shows in a practice known as fan fiction. But with the advent of the Internet, the popularity of this practice has grown exponentially as these stories are easily posted online and accessible for free. lawreview - Minnesota Law Review - [Note: You Should Be Free To Talk the Talk and Walk the Walk: Applying Riley v. California to Smart Activity Trackers](https://minnesotalawreview.org/article/free-talk-talk-walk-walk-applying-riley-v-california-smart-activity-trackers/) - By Katharine Saphner. Full text here. In 2014, the Supreme Court held in Riley v. California that law enforcement officers must obtain a warrant before searching a cell phone. Though the Court intended that this holding would provide clear guidance to law enforcement officers, it may ultimately provide even more confusion. Riley distinguishes an arrestee’s lawreview - Minnesota Law Review - [Standing on the Shoulders of Giants: Celebrating 100 Volumes of the Minnesota Law Review](https://minnesotalawreview.org/article/standing-on-the-shoulders-of-giants-celebrating-100-volumes-of-the-minnesota-law-review/) - Foreward by Rajin S. Olson, available here. lawreview - Minnesota Law Review - [The Most-Cited Articles from the Minnesota Law Review](https://minnesotalawreview.org/article/the-most-cited-articles-from-the-minnesota-law-review/) - By Fred R. Shapiro. Full text here. lawreview - Minnesota Law Review - [The United States Supreme Court (Mostly) Gives Up Its Review Role with Ineffective Assistance of Counsel Cases](https://minnesotalawreview.org/article/the-united-states-supreme-court-mostly-gives-up-its-review-role-with-ineffective-assistance-of-counsel-cases/) - By Paul Marcus. Full text here. Gideon v. Wainwright is arguably the most significant criminal justice decision in American history. Gideon’s recognition of indigent criminal defendants’ right to publicly funded counsel had an immediate and enormous impact on the fate of defendants nationwide. Despite the widely acknowledged problems with providing adequate representation in the years since lawreview - Minnesota Law Review - [Culture as a Structural Problem in Indigent Defense](https://minnesotalawreview.org/article/culture-as-a-structural-problem-in-indigent-defense/) - By Eve Brensike Primus. Full text here. Indigent defense lawyers today are routinely overwhelmed by excessive caseloads, underpaid, inadequately supported, poorly trained, and left essentially unsupervised. The result is a serious cultural problem in indigent defense, especially in jurisdictions where such defense is handled by lawyers lacking the community and institutional reinforcement that strong public-defender offices lawreview - Minnesota Law Review - [Prosser’s The Fall of the Citadel](https://minnesotalawreview.org/article/prossers-the-fall-of-the-citadel/) - By Kenneth S. Abraham. Full text here. William L. Prosser’s The Fall of the Citadel (Strict Liability to the Consumer) was simultaneously an analysis of the dismantling of the barriers to the imposition of strict liability for product-related injuries, an account of the sudden adoption of this form of liability beginning in the early 1960s, and lawreview - Minnesota Law Review - [The Remains of the Citadel (Economic Loss Rule in Products Cases)](https://minnesotalawreview.org/article/the-remains-of-the-citadel-economic-loss-rule-in-products-cases/) - By Catherine M. Sharkey. Full text here. Though its seeds may have been planted long before, the economic loss rule in products liability tort law emerged in full force at the very same moment as the doctrine of strict products liability in the mid-1960s. This moment, fueled by the fall of privity and the rise lawreview - Minnesota Law Review - [Perspectives on the Fourth Amendment Forty Years Later: Toward the Realization of an Inclusive Regulatory Model](https://minnesotalawreview.org/article/perspectives-on-the-fourth-amendment-forty-years-later-toward-the-realization-of-an-inclusive-regulatory-model/) - By Donald A. Dripps. Full text here. The Minnesota Law Review published Anthony Amsterdam’s celebrated Holmes Lectures just over forty years ago. Those lectures defended a normative, or at least very generally historical approach to the definition of “searches and seizures,” and a “regulatory model” as opposed to an “atomistic model” for assessing when “searches and lawreview - Minnesota Law Review - [Anthony Amsterdam’s Perspectives on the Fourth Amendment, and What It Teaches About the Good and Bad in Rodriguez v. United States](https://minnesotalawreview.org/article/anthony-amsterdams-perspectives-on-the-fourth-amendment-and-what-it-teaches-about-the-good-and-bad-in-rodriguez-v-united-states/) - By Tracey Maclin. Full text here. Anthony Amsterdam’s article, Perspectives On The Fourth Amendment, is one of the best, if not the best, law review articles written on the Fourth Amendment. My Article connects two perspectives from Amsterdam’s article—the Fourth Amendment’s concern with discretionary police power and the Framers’ vision of the Fourth Amendment to bar lawreview - Minnesota Law Review - [Regaining Perspective: Constitutional Criminal Adjudication in the U.S. Supreme Court](https://minnesotalawreview.org/article/regaining-perspective-constitutional-criminal-adjudication-in-the-u-s-supreme-court/) - By Andrew Manuel Crespo. Full text here. Anthony Amsterdam’s seminal Perspectives on the Fourth Amendment opens with a discussion of the various institutional “vexations” that confront the Supreme Court when it works to interpret and implement the Fourth Amendment. Commemorating the centennial volume of the Review that first published that legal classic, this Article offers a lawreview - Minnesota Law Review - [“The More Things Change . . .”: New Moves for Legitimizing Racial Discrimination in a “Post-Race” World](https://minnesotalawreview.org/article/the-more-things-change-new-moves-for-legitimizing-racial-discrimination-in-a-post-race-world/) - By Mario L. Barnes. Full text here. In his foundational Minnesota Law Review article, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, Critical Legal Studies (CLS) scholar Alan D. Freeman reviewed 25 years of U.S. Supreme Court jurisprudence with the goal of analyzing the disjuncture between the statutory and constitutional prohibition lawreview - Minnesota Law Review - [Will LGBT Antidiscrimination Law Follow the Course of Race Antidiscrimination Law?](https://minnesotalawreview.org/article/will-lgbt-antidiscrimination-law-follow-the-course-of-race-antidiscrimination-law/) - By Robert S. Chang. Full text here. This Article examines several decades of race antidiscrimination law to conjecture about the course LGBT civil rights might take following Obergefell v. Hodges. It draws from Alan Freeman’s germinal Minnesota Law Review article, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, and asks lawreview - Minnesota Law Review - [New Economy, Old Biases](https://minnesotalawreview.org/article/new-economy-old-biases/) - By Nancy Leong. Full text here. Alan David Freeman’s seminal article, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, provided a pathbreaking account of Supreme Court jurisprudence. Professor Freeman observed that the law guaranteed racial equality while simultaneously rationalizing the ongoing existence of grievous inequality. This Symposium Article demonstrates that Professor Freeman's lawreview - Minnesota Law Review - [Note: Anticompetitive Until Proven Innocent: An Antitrust Proposal To Embargo Covert Patent Privateering Against Small Businesses](https://minnesotalawreview.org/article/note-anticompetitive-until-proven-innocent-an-antitrust-proposal-to-embargo-covert-patent-privateering-against-small-businesses/) - By Kyle R. Kroll. Full text here. Policy-makers have become increasingly wary of a new patent litigation strategy called “patent privateering.” Through licensing or transfers of patents, companies can sponsor and direct—or privateer—other entities (often called patent assertion entities (or PAEs)) to sue competitors for patent infringement. Unlike patent trolling, patent privateering is not purposed on lawreview - Minnesota Law Review - [Note: Maximizing the Min-Max Test: A Proposal To Unify the Framework for Rule 403 Decisions](https://minnesotalawreview.org/article/note-maximizing-the-min-max-test-a-proposal-to-unify-the-framework-for-rule-403-decisions/) - By Leah Tabbert. Full text here. Rule 403 of the Federal Rules of Evidence applies to virtually every piece of evidence introduced in federal proceedings, permitting the trial judge to exclude evidence if the danger of unfair prejudice substantially exceeds the evidence’s probative value. By requiring that the danger of prejudice substantially outweigh probative value in lawreview - Minnesota Law Review - [No Longer a Neutral Magistrate: The Foreign Intelligence Surveillance Court in the Wake of the War on Terror](https://minnesotalawreview.org/article/no-longer-a-neutral-magistrate-the-foreign-intelligence-surveillance-court-in-the-wake-of-the-war-on-terror/) - By Walter F. Mondale, Robert A. Stein & Caitlinrose Fisher. Full text here. Since the founding of our nation, the executive, judicial, and legislative branches of government have struggled with maintaining an appropriate balance between gathering intelligence for national security purposes and protecting the civil liberties of United States citizens. This difficulty is compounded by the lawreview - Minnesota Law Review - [Public Enforcement Compensation and Private Rights](https://minnesotalawreview.org/article/public-enforcement-compensation-and-private-rights/) - By Prentiss Cox. Full text here. Government enforcement actions have returned tens of billions of dollars to consumers, investors and employees. This “public enforcement compensation” is important to effective civil law enforcement, yet it is poorly understood and increasingly criticized. Recent scholarship asserts that public compensation mimics class action recoveries and raises the same concerns of accountability lawreview - Minnesota Law Review - [Of Mice and Men: On the Seclusion of Immigration Detainees and Hospital Patients](https://minnesotalawreview.org/article/of-mice-and-men-on-the-seclusion-of-immigration-detainees-and-hospital-patients/) - By Stacey A. Tovino. Full text here. In its broadest sense, this Article challenges the lack of legally enforceable rights available to individuals in United States Immigration and Customs Enforcement (ICE) custody. More specifically, this Article examines ICE’s widespread practice of secluding immigration detainees for lengthy periods of time for purported administrative, disciplinary, or protective reasons. lawreview - Minnesota Law Review - [The Moral Psychology of Copyright Infringement](https://minnesotalawreview.org/article/the-moral-psychology-of-copyright-infringement/) - By Christopher Buccafusco & David Fagundes. Full text here. Numerous recent cases illustrate that copyright owners sue for infringement even when an unauthorized use of their work causes them no financial harm. This presents a puzzle from the perspective of copyright theory as well as a serious social problem, since infringement suits designed to remedy non-pecuniary lawreview - Minnesota Law Review - [The Missing Pieces of Geoengineering Research Governance](https://minnesotalawreview.org/article/the-missing-pieces-of-geoengineering-research-governance/) - By Albert C. Lin. Full text here. Proposals to govern geoengineering research have focused heavily on the physical risks associated with individual research projects, and to a somewhat lesser degree on fostering public trust. While these concerns are critical, they are not the only concerns that research governance should address. Generally overlooked, and more difficult to lawreview - Minnesota Law Review - [Note: Address Confidentiality and Real Property Records: Safeguarding Interests in Land While Protecting Battered Women](https://minnesotalawreview.org/article/address-confidentiality-and-real-property-records-safeguarding-interests-in-land-while-protecting-battered-women/) - By Jonathan Grant. Full text here. Over thirty states have instituted address confidentiality programs to protect victims of sexual assault, domestic abuse, stalking, and other crimes from perpetrators who try to track them through public records. The protections states offer vary widely. Minnesota has applied its address confidentiality program more broadly than any other state, extending lawreview - Minnesota Law Review - [Federalism and Moral Disagreement](https://minnesotalawreview.org/article/federalism-and-moral-disagreement/) - By Guido Calabresi & Eric S. Fish. Full text here. States form federalist unions when they want to align for economic or security reasons in spite of fundamental moral disagreements. By decentralizing policy-making authority, federalism allows such states to enjoy the benefits of union without being made to live under laws their citizens find immoral. But lawreview - Minnesota Law Review - [Truth and Lies in the Workplace: Employer Speech and the First Amendment](https://minnesotalawreview.org/article/truth-and-lies-in-the-workplace-employer-speech-and-the-first-amendment/) - By Helen Norton. Full text here. Employers’ lies, misrepresentations, and nondisclosures about workers’ legal rights and other working conditions can skew and sometimes even coerce workers’ important life decisions as well as frustrate key workplace protections. Federal, state, and local governments have long sought to address these substantial harms by prohibiting employers from misrepresenting workers’ rights lawreview - Minnesota Law Review - [The Law of the Platform](https://minnesotalawreview.org/article/the-law-of-the-platform/) - By Orly Lobel. Full text here. New digital platform companies are turning everything into an available resource: services, products, spaces, connections, and knowledge, all of which would otherwise be collecting dust. Unsurprisingly then, the platform economy defies conventional regulatory theory. Millions of people are becoming part-time entrepreneurs, disrupting established business models and entrenched market interests, challenging lawreview - Minnesota Law Review - [Knowledge Goods and Nation-States](https://minnesotalawreview.org/article/knowledge-goods-and-nation-states/) - By Daniel J. Hemel & Lisa Larrimore Ouellette. Full text here. The conventional economic justification for global IP treaties begins from the premise that nation-states, if left to their own devices, will rationally underinvest in innovation incentives such as IP laws, grants, tax credits, and prizes (the “underinvestment hypothesis”). Under this account, nation-states will free-ride on lawreview - Minnesota Law Review - [Tie Votes in the Supreme Court](https://minnesotalawreview.org/article/tie-votes-in-the-supreme-court/) - By Justin Pidot. Full text here. What should the Supreme Court do with a tie vote? A long-standing rule provides that when the Justices are evenly divided, the lower court’s decision is affirmed and the Supreme Court’s order has no precedential effect. While tie votes arise with relative rarity, the recent death of Justice Antonin Scalia lawreview - Minnesota Law Review - [Note: Guardians of Your Galaxy S7: Encryption Backdoors and the First Amendment](https://minnesotalawreview.org/article/note-guardians-of-your-galaxy-s7-encryption-backdoors-and-the-first-amendment/) - By Allen Cook Barr. Full text here. Since Apple brought encryption technology into wide public use with its inclusion on the iPhone, there have been calls from law enforcement for technology companies to include backdoors—the ability to bypass the encryption and access information even if one does not have the password, fingerprint, et. cetera normally required lawreview - Minnesota Law Review - [Note: Tweeting the Police: Balancing Free Speech and Decency on Government-Sponsored Social Media Pages](https://minnesotalawreview.org/article/note-tweeting-the-police-balancing-free-speech-and-decency-on-government-sponsored-social-media-pages/) - By Alysha L. Bohanon. Full text here. Government entities increasingly rely on their social media pages to inform and interact with their constituents. These posts can attract a wide range of comments from the public—some of which are thoughtful and informed, while others are downright hateful, racist, threatening, or vulgar. May a government entity remove lawreview - Minnesota Law Review - [Note: Toward Definition, Not Discord: Why Congress Should Amend the Family and Medical Leave Act To Preclude Individual Liability for Supervisors](https://minnesotalawreview.org/article/note-toward-definition-not-discord-why-congress-should-amend-the-family-and-medical-leave-act-to-preclude-individual-liability-for-supervisors/) - By Taylor C. Stippel. Full text here. Since the mid-1990s, courts have construed the Family and Medical Leave Act (FMLA) to allow for the imposition of individual liability on private sector supervisors. Reasoning that the FMLA’s definition of “employer” parallels the definition of “employer” in the Fair Labor Standards Act (FLSA), and noting that individual liability lawreview - Minnesota Law Review - [On the Sociology of Patenting](https://minnesotalawreview.org/article/on-the-sociology-of-patenting/) - By Dan L. Burk. Full text here. Recent commentary on the patent system has argued that there is little evidence supporting the incentive justification for patenting, so that continued faith in patents constitutes a kind of irrational adherence to myth or falsehood. While an obituary for the incentive theory of patenting is likely premature, the concept lawreview - Minnesota Law Review - [Drawing Lines Among the Persecuted](https://minnesotalawreview.org/article/drawing-lines-among-the-persecuted/) - By Kate Evans. Full text here. Should a victim of persecution be denied protection in the United States if his persecutors forced him to participate in their campaign of terror? In its 2009 decision, Negusie v. Holder, the Supreme Court recognized the “difficult line drawing problems” presented by this question, but failed to offer concrete guidance lawreview - Minnesota Law Review - [Policing Criminal Justice Data](https://minnesotalawreview.org/article/policing-criminal-justice-data/) - By Wayne A. Logan & Andrew Guthrie Ferguson. Full text here. This Article addresses a matter of fundamental importance to the criminal justice system: the presence of erroneous information in government databases and the limited government accountability and legal remedies for the harm that it causes individuals. While a substantial literature exists on the liberty and lawreview - Minnesota Law Review - [Reproduction Reconceived](https://minnesotalawreview.org/article/reproduction-reconceived/) - By Courtney Megan Cahill. Full text here. In many states, the only thing that separates a dad from a sperm donor is sex. Under federal law, sperm donations between sexually intimate partners undergoing artificial insemination are exempt from the mandatory—and expensive—testing requirements that apply to sperm donations between persons who are not sexually intimate. And according lawreview - Minnesota Law Review - [Inherent National Sovereignty Constitutionalism: An Original Understanding of the U.S. Constitution](https://minnesotalawreview.org/article/inherent-national-sovereignty-constitutionalism-an-original-understanding-of-the-u-s-constitution/) - By Robert J. Kaczorowski. Full text here. This Article is an original work of scholarship in several respects. As the title suggests, it presents a novel interpretation of the “original understanding” of the Constitution, which I call the inherent national sovereignty theory. This theory viewed the national government as a sovereign government and Congress as a lawreview - Minnesota Law Review - [Note: Payments on Debt After Discharge: When a Discharge Is Not Really a Discharge and the Limits of Taxpayer Recourse](https://minnesotalawreview.org/article/note-payments-on-debt-after-discharge-when-a-discharge-is-not-really-a-discharge-and-the-limits-of-taxpayer-recourse/) - By Robert C. Gallup. Full text here. Where the Tax Code and the collections industry collide, unique tax situations arise which leave taxpayers with little recourse. Creditors are required to “discharge” debt for tax purposes at specific times governed by Treasury Regulations, but they are still very much interested in and able to collect the debt. lawreview - Minnesota Law Review - [Note: Of Mosquitoes, Adolescents, and Reproductive Rights: Public Health and Reproductive Risks in a Genomic Age](https://minnesotalawreview.org/article/note-of-mosquitoes-adolescents-and-reproductive-rights-public-health-and-reproductive-risks-in-a-genomic-age/) - By Luke Haqq. Full text here. The massive increase of microcephalic infants in recent years as a result of the pandemic spread of Zika virus has reinvigorated public responses to birth defect risks. However, the possibility of fetal abnormalities attends every pregnancy, yet public tools have not been efficiently leveraged to respond to this reality. This lawreview - Minnesota Law Review - [Note: Big Enough To Matter: Whether Statistical Significance or Practical Significance Should Be the Test for Title VII Disparate Impact Claims](https://minnesotalawreview.org/article/note-big-enough-to-matter-whether-statistical-significance-or-practical-significance-should-be-the-test-for-title-vii-disparate-impact-claims/) - By Elliot Ko. Full text here. Title VII of the Civil Rights Act of 1964 prohibits employers from intentionally discriminating against employees because of their race or gender. It also prohibits employers from adopting even facially-neutral employment practices that have a “disparate impact” on women or racial minorities. But what exactly is a “disparate impact”? Does lawreview - Minnesota Law Review - [Misclassification and Antidiscrimination: An Empirical Analysis](https://minnesotalawreview.org/article/misclassification-and-antidiscrimination-an-empirical-analysis/) - By Charlotte S. Alexander. Full text here. This Article investigates misclassification and antidiscrimination. Misclassification is employers’ practice of classifying workers as independent contractors whom the law would categorize as employees. Misclassified workers are exempt from most federal antidiscrimination statutes, unless they file a discrimination lawsuit and seek reclassification by the court for purposes of the litigation. lawreview - Minnesota Law Review - [The Death of the Firm](https://minnesotalawreview.org/article/the-death-of-the-firm/) - By June Carbone & Nancy Levit. Full text here. This Article maintains that the decision in Burwell v. Hobby Lobby, which referred to the corporation as a legal fiction designed to serve the interests of the people behind it, signals the “death of the firm” as a unit of legal analysis in which business entities are lawreview - Minnesota Law Review - [Cracking the Code: An Empirical Analysis of Consumer Bankruptcy Outcomes](https://minnesotalawreview.org/article/cracking-the-code-an-empirical-analysis-of-consumer-bankruptcy-outcomes/) - By Sara S. Greene, Parina Patel & Katherine Porter. Full text here. Chapter 13 is a cornerstone of the bankruptcy system. Its legal requirements strike a balance between the rehabilitation of debtors through keeping assets and reducing debt, and the repayment of creditors over a period of years. Despite the accolades from policymakers, the hard truth lawreview - Minnesota Law Review - [The Substantially Impaired Sex: Uncovering the Gendered Nature of Disability Discrimination](https://minnesotalawreview.org/article/the-substantially-impaired-sex-uncovering-the-gendered-nature-of-disability-discrimination/) - By Jennifer Bennett Shinall. Full text here. The Americans with Disabilities Act (ADA) of 1990 was a landmark piece of legislation that prohibited private-sector employers from discriminating against qualified disabled workers. Although the Act is over a quarter-century old, legal scholars have never considered whether it has been uniformly efficacious—that is, whether the Act has served lawreview - Minnesota Law Review - [The Value of the Standard](https://minnesotalawreview.org/article/the-value-of-the-standard/) - By Norman V. Siebrasse & Thomas F. Cotter. Full text here. Standard-setting organizations (SSOs) often require member firms to license their standard-essential patents (SEPs) on undefined “fair, reasonable, and nondiscriminatory” (FRAND) terms. Courts and commentators in turn have proposed various principles for calculating FRAND royalties, among them that the royalty should not reflect “the value of lawreview - Minnesota Law Review - [Note: Getting Back to Basics: Recognizing and Understanding the Swing Voter on the Supreme Court of the United States](https://minnesotalawreview.org/article/getting-back-to-basics/) - By Kristin M. McGaver. Full text here. There is an extensive history and tradition of labeling Supreme Court Justices as “swing voters” and “swing Justices.” And yet, the content of these labels remain woefully unclear. Modern uses of the terms fall on a continuum, conveying negative to positive sentiments with no clear definition. Complicating things further, lawreview - Minnesota Law Review - [Note: Embracing Ambiguity and Adopting Propriety: Using Comparative Law To Explore Avenues for Protecting the LGBT Population Under Article 7 of the Rome Statute of the International Criminal Court](https://minnesotalawreview.org/article/embracing-ambiguity-and-adopting-propriety/) - By Charles Barrera Moore. Full text here. The International Criminal Court (ICC) was initially lauded for expanding the scope of crimes considered to violate international norms; however, as inclusive as the Rome Statute of the International Criminal Court has been for gender-based crimes, the ICC has yet to extend the same benefits to the lesbian, lawreview - Minnesota Law Review - [Note: Copyrighted Laws: Enabling and Preserving Access to Incorporated Private Standards](https://minnesotalawreview.org/article/copyrighted-laws/) - By James M. Sweeney. Full text here. Traditional laws—statutes, judicial opinions, and regulations—are not eligible for copyright protection. This principle is firmly established in over one hundred years of case law, despite the Copyright Code not expressly addressing the eligibility of laws. This has caused little controversy. In the last few decades, however, federal agencies have lawreview - Minnesota Law Review - [Board and Shareholder Power, Revisited](https://minnesotalawreview.org/article/board-and-shareholder-power-revisited/) - By Simone M. Sepe. Full text here. This Article offers a novel theory of the optimal balance of power between boards and shareholders. It does so by shedding light on the information structure of the shareholder-manager relationship, showing that shareholders face problems of adverse selection in addition to classic problems of managerial opportunism, i.e., moral hazard. lawreview - Minnesota Law Review - [Coverage Information in Insurance Law](https://minnesotalawreview.org/article/coverage-information-in-insurance-law/) - By Daniel Schwarcz. Full text here. The central goal of insurance law is to clarify, produce, and disseminate information about the scope of insurers’ coverage obligations to policyholders. This Article examines how insurance law and regulation seek to achieve these objectives, and to what ends. To do so, it distinguishes among three different types of coverage lawreview - Minnesota Law Review - [What Legal Authority Does the Fed Need During a Financial Crisis?](https://minnesotalawreview.org/article/what-legal-authority-does-the-fed-need-during-a-financial-crisis/) - By Eric A. Posner. Full text here. The financial crisis of 2007–08 revealed gaps in the laws that authorize federal agencies to provide emergency liquidity support. On numerous occasions the Fed, FDIC, and Treasury acted without legal authorization, exposing them to criticism from Congress and the U.S. government to legal liability. I propose reforms that would lawreview - Minnesota Law Review - [The Geography of Equal Protection](https://minnesotalawreview.org/article/the-geography-of-equal-protection/) - By Christopher R. Leslie. Full text here. This Article examines the geographic dimension of equal protection analysis. Whether a law violates the Equal Protection Clause generally depends on what level of scrutiny a court applies in reviewing that law. Laws that employ suspect classifications are subjected to heightened scrutiny. Whether a classification is suspect depends in lawreview - Minnesota Law Review - [The Luxembourg Effect: Patent Boxes and the Limits of International Cooperation](https://minnesotalawreview.org/article/the-luxembourg-effect/) - By Lilian V. Faulhaber. Full text here. This Article uses patent boxes, which reduce taxes on income from patents and other IP assets, to illustrate the fact that the jurisprudence of the European Court of Justice (ECJ) has a longer reach than has previously been recognized. This Article argues that, along with having effects within the lawreview - Minnesota Law Review - [Note: Economic Protectionism and Occupational Licensing Reform](https://minnesotalawreview.org/article/note-economic-protectionism-and-occupational-licensing-reform/) - By Gerald S. Kerska. Full text here. State-mandated occupational licensing laws are prevalent in the United States. Indeed, one-quarter of all Americans need a license to engage in their professions. Over the past decade, the most onerous of these regulations have come under attack in federal court for violating the Due Process and Equal Protection Clauses lawreview - Minnesota Law Review - [Note: Providing Clarity for Standard of Conduct for Directors Within Benefit Corporations: Requiring Priority of a Specific Public Benefit](https://minnesotalawreview.org/article/providing-clarity-for-standard-of-conduct-for-directors-within-benefit-corporations/) - By Roxanne Thorelli. Full text here. One of the newest social enterprise business forms—the benefit corporation—is becoming increasingly popular throughout the United States. Since its formal beginnings in 2010, thirty states and the District of Columbia have passed benefit corporation legislation, and seven other states are currently in the process of passing legislation. The benefit corporation lawreview - Minnesota Law Review - [The Free Speech Rights of University Students](https://minnesotalawreview.org/article/the-free-speech-rights-of-university-students/) - By Mary-Rose Papandrea. Full text here. As questions regarding the freedom of expression on college campuses grip the country, courts adjudicating First Amendment cases in the higher education setting are struggling to determine the appropriate legal framework. Some courts are relying on Supreme Court cases from the K–12 setting as well as the public employment context; lawreview - Minnesota Law Review - [Campus Speech and Harassment](https://minnesotalawreview.org/article/campus-speech-and-harassment/) - By Alexander Tsesis. Full text here. A theoretical question that runs through the debate on the constitutionality of campus speech codes asks whether free speech values are best preserved by categorical rules or balancing factors. Whether campus codes are constitutional should be analyzed through a doctrinal and statutory framework developed outside university settings, in cases involving lawreview - Minnesota Law Review - [Four Ironies of Campus Climate](https://minnesotalawreview.org/article/four-ironies-of-campus-climate/) - By Richard Delgado & Jean Stefancic. Full text here. The controversy over campus climate contains several components, including safe spaces, ethnic studies departments and faculty, trigger warnings, and crackdowns on hate speech and micro-aggressions. Of all these, the last three, which concern speech, have been the most hotly contested. Debates over hate speech and campus conduct lawreview - Minnesota Law Review - [A Close-up, Modern Look at First Amendment Academic Freedom Rights of Public College Students and Faculty](https://minnesotalawreview.org/article/close-up-modern-look-at-first-amendment/) - By Vikram David Amar & Alan E. Brownstein. Full text here. Like many other terms bandied about these days, “academic freedom” is something that means different things to different people, and for that reason is often misunderstood. In this Article, we focus on what, if any, special freedoms of expression are enjoyed under the First Amendment lawreview - Minnesota Law Review - [Free Speech, Higher Education, and the PC Narrative](https://minnesotalawreview.org/article/free-speech-higher-education-and-the-pc-narrative/) - By Heidi Kitrosser. Full text here. This Article reviews discussions in the press about campus political correctness (PC) and free speech during two periods of intense interest in the same. The first is the period from 1989–1995, when the term political correctness first came into popular use and as campus communities, politicians, and the public at lawreview - Minnesota Law Review - [Academic Freedom To Deny the Truth: Beyond the Holocaust](https://minnesotalawreview.org/article/academic-freedom-to-deny-the-truth/) - By Robert M. O’Neil. Full text here. The concept of academic freedom is so widely accepted and well established that it may even subvert a commitment to truth, and this freedom cannot be casually disregarded despite a speaker’s dissonance with scientific precept. So it was with Myron Ebell, then-President-elect Trump’s choice to lead the EPA transition lawreview - Minnesota Law Review - [Balancing First Amendment Rights with an Inclusive Environment on Public University Campuses](https://minnesotalawreview.org/article/balancing-first-amendment-rights-with-an-inclusive-environment/) - By Gerald S. Kerska. Full text here. How should public universities strike a balance between First Amendment values and their mission to establish a diverse and inclusive environment? Recent events from the University of Minnesota bring this question into focus. lawreview - Minnesota Law Review - [Note: Affirmative Action: The Constitutional Approach to Ending Sex Disparities on Corporate Boards](https://minnesotalawreview.org/article/note-affirmative-action/) - By Julia Glen. Full text here. Women hold far fewer seats on U.S. corporate executive boards than men, despite composing nearly half of the workforce. In 2015, women held only 16.5% of the top five executive board positions in businesses on the S&P 500, and fourteen percent of all executive board positions. Internationally, governments are instituting lawreview - Minnesota Law Review - [A Conversation Between U.S. Supreme Court Justice Sonia Sotomayor and Professor Robert A. Stein](https://minnesotalawreview.org/article/sotomayor-and-stein/) - The 2016 Stein Lecture. Transcript here. This piece was transcribed from a conversation between Justice Sonia Sotomayor and Professor Robert A. Stein held at the University of Minnesota Law School on October 17, 2016. Justice Sotomayor shares how her early life experiences, such as being diagnosed with type 1 diabetes, shaped her worldview. She discusses lawreview - Minnesota Law Review - [Civil Rules Interpretive Theory](https://minnesotalawreview.org/article/civil-rules-interpretive-theory/) - By Lumen N. Mulligan & Glen Staszewski. Full text here. We claim that the proper method of interpreting the Federal Rules of Civil Procedure (Rules)—civil rules interpretive theory—should be recognized as a distinct field of scholarly inquiry and judicial practice. Fundamentally, the Rules are not statutes. Yet the theories of statutory interpretation that are typically imported lawreview - Minnesota Law Review - [Toward a Critical Race Theory of Evidence](https://minnesotalawreview.org/article/toward-a-critical-race-theory-of-evidence/) - By Jasmine B. Gonzales Rose. Full text here. Scholars, judges, and lawyers have long believed that evidence rules apply equally to all persons regardless of race. This Article challenges this assumption and reveals how evidence law structurally disadvantages people of color. A critical race analysis of stand-your-ground defenses, cross-racial eyewitness misidentifications, and minority flight from racially lawreview - Minnesota Law Review - [Regulating Cumulative Risk](https://minnesotalawreview.org/article/regulating-cumulative-risk/) - By Sanne H. Knudsen. Full text here. Chemicals and pesticides permeate the natural world. They are woven (sometimes quite literally) into the fabric of our lives. Because chemicals are everywhere, the key to protecting public health in the chemical age is regulating cumulative risk—that is, the combined risk from exposure to multiple chemicals and pesticides through lawreview - Minnesota Law Review - [The Consequences of Disparate Policing: Evaluating Stop and Frisk as a Modality of Urban Policing](https://minnesotalawreview.org/article/siri-ously-2-0-what-artificial-intelligence-reveals-about-the-first-amendment/) - By Aziz Z. Huq. Full text here. Beginning in the 1990s, police departments in major American cities started aggressively deploying pedestrian stops and frisks in response to escalating violent crime rates. Today, high-volume use of “stop, question, and frisk” (SQF) is an acute point of friction between urban police and minority residents. In numerous cities, recent lawreview - Minnesota Law Review - [SIRI-OUSLY 2.0: What Artificial Intelligence Reveals About the First Amendment](https://minnesotalawreview.org/article/siri-ously-2-0/) - By Toni M. Massaro, Helen Norton, & Margot E. Kaminski. Full text here. The First Amendment may protect speech by strong Artificial Intelligence (AI). In this Article, we support this provocative claim by expanding on earlier work, addressing significant concerns and challenges, and suggesting potential paths forward. This is not a claim about the state of lawreview - Minnesota Law Review - [Note: Stranger than Science Fiction: The Rise of A.I. Interrogation in the Dawn of Autonomous Robots and the Need for an Additional Protocol to the U.N. Convention Against Torture](https://minnesotalawreview.org/article/stranger-than-science-fiction/) - By Amanda McAllister. Full text here. As we approach the impending technological revolution of the proliferation of robots and weapons on the spectrum of autonomy, we run the risk of being “one technology behind” in anticipating the changing legal landscape in the next season of human-technology interaction. Specifically, the development and emergence of autonomous robots and lawreview - Minnesota Law Review - [Remembrance of Judge Myron Bright](https://minnesotalawreview.org/article/remembrance-of-judge-myron-h-bright/) - By Ruth Bader Ginsburg. Full text here. This issue of Minnesota Law Review is dedicated to the memory of The Honorable Myron H. Bright. A 1947 graduate of the University of Minnesota Law School and member of the student editorial board of Minnesota Law Review Volume 33, Judge Bright was appointed to the United States Court lawreview - Minnesota Law Review - [Remembrance of Judge Myron Bright](https://minnesotalawreview.org/article/remembrance-of-judge-myron-bright/) - By Samuel A. Alito, Jr. Full text here. lawreview - Minnesota Law Review - [In Memoriam Judge Myron Bright](https://minnesotalawreview.org/article/in-memoriam-judge-myron-bright/) - By Diana E. Murphy. Full text here. lawreview - Minnesota Law Review - [Remembering Judge Myron Bright](https://minnesotalawreview.org/article/remembering-judge-myron-bright/) - By Jane Kelly. Full text here. lawreview - Minnesota Law Review - [Standing Voting Instructions: Empowering the Excluded Retail Investor](https://minnesotalawreview.org/article/standing-voting-instructions-empowering-the-excluded-retail-investor/) - By Jill E. Fisch. Full text here. Despite the increasing importance of shareholder voting, regulators have paid little attention to the rights of retail investors who own approximately thirty percent of publicly traded companies but who vote less than thirty percent of their shares. A substantial factor contributing to this low turnout is the antiquated mechanism lawreview - Minnesota Law Review - [Constitutional Reasonableness](https://minnesotalawreview.org/article/constitutional-reasonableness/) - By Brandon L. Garrett. Full text here. The concept of reasonableness pervades constitutional doctrine. The concept has long served to structure common law doctrines from negligence to criminal law, but its rise in constitutional law is more recent and diverse. This Article aims to unpack surprisingly different formulations of what the term reasonable means in constitutional lawreview - Minnesota Law Review - [Valuing Identity](https://minnesotalawreview.org/article/valuing-identity/) - By Osamudia R. James. Full text here. Popular engagement with black racial identity is steadily increasing. From the protest slogan “Black Lives Matter,” to the visibility of black racial identity on number-one-debuting visual albums like Lemonade, blackness is increasingly visible in mainstream American culture. At the same time, “Black Lives Matter” gave way to “All Lives lawreview - Minnesota Law Review - [Strengthening Cybersecurity with Cyberinsurance Markets and Better Risk Assessment](https://minnesotalawreview.org/article/strengthening-cybersecurity/) - By Jay P. Kesan & Carol M. Hayes. Full text here. Cybersecurity is an increasingly important element of infrastructure and commerce. Courts are starting to shape the doctrine of third-party liability for cyberattacks and data breaches. For businesses that rely on computers and the Internet, these developments affect their bottom line. There is a lot of lawreview - Minnesota Law Review - [Carbon Taxation by Regulation](https://minnesotalawreview.org/article/carbon-taxation-by-regulation/) - By Jim Rossi. Full text here. This Article argues that carbon taxation by regulation has begun to flourish as a way of financing carbon reduction, even as a full national carbon tax remains politically elusive. For more than a century, energy rate setting has been used to promote public good and redistributive goals, akin to general lawreview - Minnesota Law Review - [Note: Drilling and Community Consent: How Oil and Gas Boards Can Address the Public Health Threats Posed by Fracking](https://minnesotalawreview.org/article/drilling-and-community-consent/) - By Ellie Bastian. Full text here. Natural gas is heralded by the political right as a path to energy independence; it is heralded on the left as a bridge to cleaner energy. Fracking, a commonplace method for natural gas extraction, is not going away any time soon. Along with the boon of natural gas come potential lawreview - Minnesota Law Review - [Note: The Juvenile Ultimatum: Reframing Blended Sentencing Laws to Ensure Juveniles Receive a Genuine "One Last Chance at Success"](https://minnesotalawreview.org/article/the-juvenile-ultimatum/) - By Anabel Cassady. Full text here. Full text here. Blended sentencing laws allow judges to impose either or both a juvenile court disposition and an adult criminal court sentence on certain juvenile offenders. Minnesota’s blended sentencing statute, known as Extended Jurisdiction Juvenile (EJJ), was enacted in 1995 with the intention of giving juveniles “one last chance lawreview - Minnesota Law Review - [Note: Reconsidering Home Rule and City-State Preemption in Abandoned Fields of Law](https://minnesotalawreview.org/article/abandoned-fields-of-law/) - By Franklin R. Guenthner. Full text here. When state governments overrule local ordinances, but do not replace those local laws with affirmative statewide policies, does that constitute a valid act of city-state preemption? From North Carolina, where the passage of the now infamous (and recently repealed) HB2 overruled Charlotte’s LGBT civil protections; to Arizona, where lawreview - Minnesota Law Review - [Competence and Culpability: Delinquents in Juvenile Courts, Youths in Criminal Courts](https://minnesotalawreview.org/article/competence-and-culpability/) - By Barry C. Feld. Full text here. During the 1980s and ’90s, state lawmakers shifted juvenile justice policies from a nominally offender-oriented rehabilitative system toward a more punitive and criminalized justice system. Punitive pretrial detention and delinquency dispositions had a disproportionate impact on minority youths. Notwithstanding the past two decades’ drop in serious youth crime and lawreview - Minnesota Law Review - [When Database Queries Are Fourth Amendment Searches](https://minnesotalawreview.org/article/when-database-queries-are-fourth-amendment-searches/) - By Emily Berman. Full text here. According to both courts and commentators, the Fourth Amendment regulates the government’s collection of data, but not its use. That is to say, once data is lawfully in the government’s possession, the Constitution places no limits on how it is employed. I argue that we should reject this conventional wisdom lawreview - Minnesota Law Review - [The Foreign Emoluments Clause and the Chief Executive](https://minnesotalawreview.org/article/the-foreign-emoluments-clause-and-the-chief-executive/) - By Amandeep S. Grewal. Full text here. The 2016 presidential election brought widespread attention to a part of the Constitution, the Foreign Emoluments Clause, that had previously enjoyed a peaceful spot in the dustbin of history. That clause generally prohibits U.S. Officers from accepting emoluments from foreign governments, absent congressional consent. Several commentators believe that President lawreview - Minnesota Law Review - [The Production Function of the Regulatory State: How Much Do Agency Budgets Matter?](https://minnesotalawreview.org/article/the-production-function-of-the-regulatory-state/) - By Jonathan Remy Nash, J.B. Ruhl, & James Salzman. Full text here. How much will our budget be cut this year? This question has loomed ominously over regulatory agencies for over three decades. After the 2016 presidential election, it now stands front and center in federal policy. Yet very little is known about the fundamental lawreview - Minnesota Law Review - [Too Big To Fool: Moral Hazard, Bailouts, and Corporate Responsibility](https://minnesotalawreview.org/article/too-big-to-fool/) - By Steven L. Schwarcz. Full text here. Domestic and international regulatory efforts to prevent another financial crisis have been converging on the idea of trying to end the problem of too big to fail—that systemically important financial firms take excessive risks because they profit from success and are (or at least, expect to be) bailed out lawreview - Minnesota Law Review - [Institutional Fracture in Intellectual Property Law: The Supreme Court Versus Congress](https://minnesotalawreview.org/article/institutional-fracture-in-intellectual-property-law/) - By Gregory N. Mandel. Full text here. This Article presents an original dataset of (1) every intellectual property decision made by the Supreme Court; and (2) every intellectual property statute passed by Congress from 2002 to 2016. Analysis of the data reveals that the Court and Congress have been significantly at odds over intellectual property law lawreview - Minnesota Law Review - [Note: Killing the Goose that Laid the Golden Egg: Outdated Employment Laws Are Destroying the Gig Economy](https://minnesotalawreview.org/article/note-killing-the-goose-that-laid-the-golden-egg/) - By Emily C. Atmore. Full text here. Would you rather protect employee rights or stimulate economic growth? It seems like an impossible choice. This is a dichotomy that has been debated by scholars and lawmakers throughout history. Most recently, this issue has arisen in the context of the so-called gig economy. The gig economy uniquely challenges lawreview - Minnesota Law Review - [Note: Shining a Light on the Shadow-of-Trial Model: A Bridge Between Discounting and Plea Bargaining](https://minnesotalawreview.org/article/note-shining-a-light-on-the-shadow-of-trial-model/) - By Lauren Clatch. Full text here. Plea bargaining is a central feature of the American criminal justice system. Traditional legal scholarship on plea bargaining, influenced by the subdiscipline of law and economics, assumes that criminal defendants simply compare the two criminal sanctions being offered—the criminal charge and sentence in the plea bargain versus the criminal charge lawreview - Minnesota Law Review - [Note: Inclusive Communities and Robust Causality: The Constant Struggle to Balance Access to the Courts with Protection for Defendants](https://minnesotalawreview.org/article/note-inclusive-communities-and-robust-causality/) - By Claire Williams. Full text here. Access to housing has been a central issue throughout much of the United States’ history. Both government and private actors furthered and reinforced segregated and substandard housing for people of color. From the time of its passage, the Fair Housing Act and antidiscrimination litigation has been an important tool for lawreview - Minnesota Law Review - [Prospective Grandfathering: Anticipating the Energy Transition Problem](https://minnesotalawreview.org/article/prospective-grandfathering-anticipating-the-energy-transition-problem/) - By Christopher Serkin & Michael P. Vandenbergh. Full text here. Legal change has the potential to disrupt settled expectations and property rights. The Takings Clause protects some expectations by requiring compensation for the most significant costs of changes in the law. However, threats of takings claims and related claims of unfairness in political debates can discourage lawreview - Minnesota Law Review - [Admissions of Guilt in Civil Enforcement](https://minnesotalawreview.org/article/admissions-of-guilt-in-civil-enforcement/) - By Verity Winship & Jennifer K. Robbennolt. Full text here. Should agencies require admissions of wrongdoing from the targets of civil enforcement? Administrative agencies rely heavily on settlement as a key enforcement tool. Admissions of wrongdoing—or, more commonly, declarations that nothing is admitted—form part of these settlement agreements and the underlying negotiations. The Securities and lawreview - Minnesota Law Review - [Categorizing Student Speech](https://minnesotalawreview.org/article/categorizing-student-speech/) - By Alexander Tsesis. Full text here. Primary and secondary school student speech cases raise a variety of conflicting concerns about civic growth, intellectual development, school discipline, and judicial discretion. This Article explains how courts should address the internal conflict within jurisprudence that, on the one hand, recognizes students retain their First Amendment rights, and, on the lawreview - Minnesota Law Review - [Globalization Without a Safety Net: The Challenge of Protecting Cross-Border Funding of NGOs](https://minnesotalawreview.org/article/globalization-without-a-safety-net/) - By Lloyd Hitoshi Mayer. Full text here. More than fifty countries around the world have sharply increased legal restrictions on domestic nongovernmental organizations (NGOs) that receive funding from outside their home country and the foreign NGOs that provide such funding. These restrictions include requiring advance government approval before a domestic NGO can accept cross-border funding, requiring lawreview - Minnesota Law Review - [Behavioral Claim Construction](https://minnesotalawreview.org/article/behavioral-claim-construction/) - By Jeremy W. Bock. Full text here. Existing proposals for enhancing predictability in patent claim interpretation focus primarily on the process of adjudication and doctrinal issues, while rarely delving into the underlying psychological and environmental factors that might influence different readers to interpret the same claim very differently. Drawing on lessons from behavioral economics and cognitive lawreview - Minnesota Law Review - [Social Influences on Policy Preferences: Conformity and Reactance](https://minnesotalawreview.org/article/social-influences-on-policy-preferences-conformity-and-reactance/) - By Meirav Furth-Matzkin & Cass R. Sunstein. Full text here. Social norms have been used to nudge people toward specified outcomes in various domains. But can people be nudged to support, or to reject, proposed government policies? How do people’s views change when they learn that the majority approves of a particular policy, or that lawreview - Minnesota Law Review - [Solving the Problem of Problem-Solving Justice: Rebalancing Federal Court Investment in Reentry and Pretrial Diversion Programs](https://minnesotalawreview.org/article/solving-the-problem-of-problem-solving-justice/) - By Devin T. Driscoll. Full text here. This Note explores the creation of so-called problem-solving courts, including state drug courts and federal reentry courts, as well as the future of this kind of reform within the federal criminal justice system. It traces the development of problem-solving courts, beginning first with state drug courts in the lawreview - Minnesota Law Review - [The Most Integrated Setting: Olmstead, Fry, and Segregated Public Schools for Students with Disabilities](https://minnesotalawreview.org/article/the-most-integrated-setting/) - By Trevor Matthews. Full text here. Can school districts force students with disabilities to attend schools that segregate them from their peers without disabilities? Case law resulting from federal special education law, particularly the Individuals with Disabilities Education Act (IDEA), has generally indicated that the answer to this question is yes. In fact, in 2015, almost lawreview - Minnesota Law Review - [Reclaiming Reclamation: Rule Changes Proposed To Ensure Coal Companies Fund Mandatory Clean-Ups](https://minnesotalawreview.org/article/reclaiming-reclamation/) - By Taylor Mayhall. Full text here. More than fifty U.S. coal mining companies have gone bankrupt since 2012. When a coal mining company goes bankrupt, its ability to clean up, or reclaim, its mines becomes questionable, and the burden may end up falling on taxpayers. This Note addresses the struggle to hold U.S. coal mining lawreview - Minnesota Law Review - [Positive and Negative Externalities in Real Estate Development](https://minnesotalawreview.org/article/positive-and-negative-externalities-in-real-estate-development/) - Positive and Negative Externalities in Real Estate Development By, Richard A. Epstein. Full text here. In this Article, I offer a unified framework for dealing with positive and negative externalities in real estate transactions. The initial move starts in an imagined world in which a single person owns all real estate, which is then sold lawreview - Minnesota Law Review - [Decentralized and Anomalous Interpretation of Chinese Private Law: Understanding a Bureaucratic and Political Judicial System](https://minnesotalawreview.org/article/decentralized-and-anomalous-interpretation-of-chinese-private-law-understanding-a-bureaucratic-and-political-judicial-system/) - Decentralized and Anomalous Interpretation of Chinese Private Law: Understanding a Bureaucratic and Political Judicial System By Yun-chien Chang & Ke Xu. Full text here. China developed without clear entitlements, creating the China Puzzle for law and development theorists. But fundamental statutes regarding contract, torts, and property have now been enacted. Will clear delineation of private lawreview - Minnesota Law Review - [Taobao, Federalism, and the Emergence of Law, Chinese Style](https://minnesotalawreview.org/article/taobao-federalism-and-the-emergence-of-law-chinese-style/) - Taobao, Federalism, and the Emergence of Law, Chinese Style By Lizhi Liu & Barry R. Weingast. Full text here. All developing countries face the problem of how to build the legal and institutional infrastructure (for example, securing property rights and the rule of law) necessary to support efficient markets. The historic path for the West lawreview - Minnesota Law Review - [Binding Leviathan: Credible Commitment in an Authoritarian Regime](https://minnesotalawreview.org/article/binding-leviathan-credible-commitment-in-an-authoritarian-regime/) - Binding Leviathan: Credible Commitment in an Authoritarian Regime By Roderick M. Hills, Jr. & Shitong Qiao. Full text here. The problem of credible commitment dogs every government, whether democratic or authoritarian. Authoritarian bureaucracies face special credible commitment problems. Fear that local officials will build up a local power base has historically induced the leadership of lawreview - Minnesota Law Review - [Data and Decentralization: Measuring the Performance of Legal Institutions in Multilevel Systems of Governance](https://minnesotalawreview.org/article/data-and-decentralization-measuring-the-performance-of-legal-institutions-in-multilevel-systems-of-governance/) - Data and Decentralization: Measuring the Performance of Legal Institutions in Multilevel Systems of Governance By Kevin E. Davis. Full text here. Most countries rely on multiple levels of government, and many important legal institutions are subnational in scope. There are now several indicators that purport to measure the performance of legal institutions, but they tend lawreview - Minnesota Law Review - [Foot Voting, Decentralization, and Development](https://minnesotalawreview.org/article/foot-voting-decentralization-and-development/) - Foot Voting, Decentralization, and Development By Ilya Somin. Full text here. We can enhance development by making it easier for people to “vote with their feet” between jurisdictions. Foot voting is, in several crucial respects, a better mechanism of political decision-making than ballot-box voting. Foot voters generally have better incentives to acquire relevant knowledge—and use lawreview - Minnesota Law Review - [Rights-Weakening Federalism](https://minnesotalawreview.org/article/rights-weakening-federalism/) - Rights-Weakening Federalism By Shitong Qiao. Full text here. This Article examines whether federalism protects land rights in China from two dimensions. I first compare national law with local institutions of eminent domain, revealing that local governments take much more land than the national government approves, frequently violating, tweaking, and challenging national law. I next examine lawreview - Minnesota Law Review - [Note: Left To Languish: The Importance of Expanding the Due Process Rights of Immigration Detainees](https://minnesotalawreview.org/article/note-left-to-languish-the-importance-of-expanding-the-due-process-rights-of-immigration-detainees/) - Note: Left To Languish: The Importance of Expanding the Due Process Rights of Immigration Detainees By Maisie A. Baldwin. Full text here. Modern immigration detention in the United States is nearly indistinguishable from criminal detention—and often, the same facilities are used to house immigration and criminal detainees side by side. Detainees in both systems may lawreview - Minnesota Law Review - [Note: Punishing the Pettifogger’s Practice: Applying the Sanction Power of 28 U.S.C. § 1927 to Law Firms](https://minnesotalawreview.org/article/note-punishing-the-pettifoggers-practice-applying-the-sanction-power-of-28-u-s-c-§-1927-to-law-firms/) - Note: Punishing the Pettifogger’s Practice: Applying the Sanction Power of 28 U.S.C. § 1927 to Law Firms By Joseph T. Janochoski. Full text here. The federal statute 28 U.S.C. § 1927 permits litigants to seek repayment of, and courts to sanction in the form of, “the excess costs, expenses, and attorneys’ fees reasonably incurred” as lawreview - Minnesota Law Review - [Note: Mayo, Myriad, and a Muddled Analysis: Do Recent Changes to the Patentable Subject Matter Doctrine Threaten Patent Protections for Epigenetics-Based Inventions?](https://minnesotalawreview.org/article/note-mayo-myriad-epigenetics/) - By Mike Sikora. Full text here In articulating the Mayo test for patentable subject matter under 35 U.S.C. § 101, the Supreme Court effectively replaced decades of judicial tests with a single streamlined analysis. Large-scale invalidations of software, business method, and communications patents swiftly followed, yet biotechnology patents have largely been spared. Even so, it may simply be lawreview - Minnesota Law Review - [When Should Employers Be Liable for Factoring Biased Customer Feedback into Employment Decisions?](https://minnesotalawreview.org/article/customer-feedback-into-employment-decisions/) - When Should Employers Be Liable for Factoring Biased Customer Feedback into Employment Decisions? By Dallan F. Flake. Full text here. In today’s customer-centric business environment, firms seek feedback from consumers seemingly at every turn. Firms factor customer feedback into a host of decisions, including employment-related decisions such as who to hire, promote, and fire; how lawreview - Minnesota Law Review - [Corporate Charter Competition](https://minnesotalawreview.org/article/corporate-charter-competition/) - Corporate Charter Competition By Lynn M. LoPucki. Full text here. Corporate charter competition has dominated the corporate-law literature for four decades. This Article draws on the theoretical and empirical insights from that vast literature to present a systems analysis of the competition. The analysis shows the competition to be a system composed of three subsystems, lawreview - Minnesota Law Review - [Administrative Answers to Major Questions: On the Democratic Legitimacy of Agency Statutory Interpretation](https://minnesotalawreview.org/article/administrative-answers-to-major-questions-on-the-democratic-legitimacy-of-agency-statutory-interpretation/) - Administrative Answers to Major Questions: On the Democratic Legitimacy of Agency Statutory Interpretation By Blake Emerson. Full text here. This Article critiques the legal and theoretical premises of the major questions doctrine, and proposes a revision to the doctrine that better comports with the institutional structure and ideological origins of our administrative state. The major lawreview - Minnesota Law Review - [A Legal Theory of Shareholder Primacy](https://minnesotalawreview.org/article/a-legal-theory-of-shareholder-primacy/) - By Robert J. Rhee. Full text here. Shareholder primacy is one of the most fundamental concepts in corporate law and corporate governance. It is widely embraced in the business, legal, and academic communities. Economic analysis and policy arguments advance a normative theory that corporate managers should maximize shareholder wealth. Academic literature invariably describes shareholder primacy lawreview - Minnesota Law Review - [Keeping Promises and Meeting Needs: Public Charities at a Crossroads](https://minnesotalawreview.org/article/keeping-promises-and-meeting-needs-public-charities-at-a-crossroads/) - Keeping Promises and Meeting Needs: Public Charities at a Crossroads By Allison Anna Tait. Full text here. When a charitable institution cannot fulfill the terms governing a gift agreement, it must decide whether to keep a promise or meet a need. 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Abby Oakland, Editor-in-Chief (EIC) of the Minnesota Law Review, reached out to other Minnesota Law EICs to collaborate on a joint publication addressing important themes surrounding racial inequality, police brutality, and other issues plaguing our legal justice system. We expanded the scope of the project to include other student-run legal academic journals at Mitchell Hamline and University of St. Thomas. The objective of the collaboration was to use our platforms and collective effort to work with scholars to publish cutting-edge, timely, and thought-provoking articles addressing social justice issues including racial inequality and policing both at home in Minnesota and in the nation-at-large. We are proud to present our joint publication that has been over a year in the making, Racial Inequality in the Legal System Locally and Nationally. This joint venture would not have been possible without the tireless efforts of the staff members and editors across our six journals who went above and beyond and worked selflessly to bring this publication to fruition. Thanks are also due to our wonderful authors who answered our call to create insightful scholarship. 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