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 101 - Issue 3

Misclassification and Antidiscrimination: An Empirical Analysis

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. Thus, employers may use their classification […]

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The Death of the Firm

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 treated as more than the sum of their […]

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Cracking the Code: An Empirical Analysis of Consumer Bankruptcy Outcomes

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 is that the majority of the half-million families each year that […]

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The Substantially Impaired Sex: Uncovering the Gendered Nature of Disability Discrimination

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 all subpopulations of disabled workers equally […]

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The Value of the Standard

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 the standard.” As we show, however, this principle could be […]

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Note: Getting Back to Basics: Recognizing and Understanding the Swing Voter on the Supreme Court of the United States

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, there is sometimes a conflation between […]

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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

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, gay, bisexual, and transgendered (LGBT) community. Part […]

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De Novo

  • Much Ado About Nothing

    MUCH ADO ABOUT NOTHING: ELIMINATION 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] […]

  • Educational Privileges

    EDUCATIONAL PRIVILEGES: A PERPSECTIVE ON U.S. DEPARTMENT OF EDUCATION REGULATIONS BANNING PRE-DISPUTE, MANDATORY ARBITRAITON 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 […]

  • 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 […]

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