Print Issue Volume 101 - Issue 3

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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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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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 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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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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Note: Big Enough To Matter: Whether Statistical Significance or Practical Significance Should Be the Test for Title VII Disparate Impact Claims

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 this term refer to any […]

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Note: Of Mosquitoes, Adolescents, and Reproductive Rights: Public Health and Reproductive Risks in a Genomic Age

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 failure will become palpable as […]

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Note: Payments on Debt After Discharge: When a Discharge Is Not Really a Discharge and the Limits of Taxpayer Recourse

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. When they subsequently collect this “discharged” […]

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Inherent National Sovereignty Constitutionalism: An Original Understanding of the U.S. Constitution

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 sovereign legislature imbued with the countless […]

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Reproduction Reconceived

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 to the myriad proposed regulations of […]

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