Print Issue Volume 100 - Issue 6

The Moral Psychology of Copyright Infringement

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 harms tend to stifle rather than encourage creative […]

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Of Mice and Men: On the Seclusion of Immigration Detainees and Hospital Patients

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. Although seclusion has a profoundly negative […]

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Public Enforcement Compensation and Private Rights

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 to recipients of relief. This […]

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No Longer a Neutral Magistrate: The Foreign Intelligence Surveillance Court in the Wake of the War on Terror

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 uniquely challenging separation of powers issues national security problems present. In 1978, […]

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Note: Maximizing the Min-Max Test: A Proposal To Unify the Framework for Rule 403 Decisions

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 order to authorize exclusion, Rule […]

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Note: Anticompetitive Until Proven Innocent: An Antitrust Proposal To Embargo Covert Patent Privateering Against Small Businesses

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 collecting settlements or licensing fees—though, such […]

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New Economy, Old Biases

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 observations remain accurate today, and […]

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Will LGBT Antidiscrimination Law Follow the Course of Race Antidiscrimination Law?

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 whether Freeman’s thesis that race antidiscrimination law […]

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“The More Things Change . . .”: New Moves for Legitimizing Racial Discrimination in a “Post-Race” World

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 of racial discrimination and the continuing […]

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Regaining Perspective: Constitutional Criminal Adjudication in the U.S. Supreme Court

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 renewed assessment of the institutional vexations […]

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