Volume 100 - Issue 2
Minnesota Law Review

Should Agencies Enforce?

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 it believes that agency subject [...]

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Good Faith and Fair Dealing as an Underenforced Legal Norm

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 expansive standard. This article proposes [...]

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No Longer Available: Critiquing the Contradictory Ways Courts Treat Exclusive Arbitration Forum Clauses when the Forum Can No Longer Arbitrate

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 court can appoint a new [...]

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Inter Partes Review: Ensuring Effective Patent Litigation Through Estoppel

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 opportunity is tempered by IPR’s estoppel [...]

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The Case Against Self-Representation in Capital Proceedings

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 of self-representation in criminal prosecutions. Since [...]

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Civil Death in Modern Times: Reconsidering Felony Disenfranchisement in Minnesota

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 its vestiges is the disenfranchisement [...]

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Piling On: Collateral Consequences and Community Supervision

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 status, political participation, public assistance, and travel, to [...]

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Improving Economic Sanctions in the States

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 economic sanctions—to further penal policy while avoiding [...]

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The Benefits and Costs of Economic Sanctions: Considering the Victim, the Offender, and Society

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 are used.  Fines are monetary penalties [...]

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The Economic Rehabilitation of Offenders: Recommendations of the Model Penal Code (Second)

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 for high rates of probation and [...]

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De Novo

  • Dan’s Flaw

    DAN’S [F]LAW: STATUTORY FAILURE TO ENFORCE ETHICAL BEHAVIOR IN CLINICAL DRUG TRIALS Noah Lewellen* 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, and [...]

  • Case Comment: Bhogaita v. Altamonte

    EVERY DOG CAN HAVE HIS DAY IN COURT: THE USE OF ANIMALS AS DEMONSTRATIVE EXHIBITS 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 [...]

  • Revisiting Water Bankruptcy

    REVISITING WATER BANKRUPTCY IN CALIFORNIA’S FOURTH YEAR OF DROUGHT Olivia Moe, Volume 100, Managing 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 [...]