Spring 2017: Volume 101

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.

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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.”  

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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, […]

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Volume 102 - Issue 2

Competence and Culpability

Competence and Culpability: Delinquents in Juvenile Courts, Youths in Criminal Courts 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 […]

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When Database Queries Are Fourth Amendment Searches

When Database Queries Are Fourth Amendment Searches 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 […]

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The Foreign Emoluments Clause and the Chief Executive

The Foreign Emoluments Clause and the Chief Executive 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 […]

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The Production Function of the Regulatory State

The Production Function of the Regulatory State: How Much Do Agency Budgets Matter? 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 […]

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Too Big To Fool

Too Big To Fool: Moral Hazard, Bailouts, and Corporate Responsibility 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 […]

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Institutional Fracture in Intellectual Property Law

Institutional Fracture in Intellectual Property Law: The Supreme Court Versus Congress 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 […]

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Note: Killing the Goose that Laid the Golden Egg

Killing the Goose That Laid the Golden Egg: Outdated Employment Laws Are Destroying the Gig Economy 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 […]

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De Novo

  • 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 […]

  • 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 […]

  • 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, […]

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