A Better Solution to Moral Hazard in Employment Arbitration: It Is Time to Ban Predispute Binding Arbitration Clauses? A Response to LeRoy

In this Response, Professors Bingham and Good take a second look at Professor Michael LeRoy’s statistics from his article, Do Courts Create Moral Hazard? When Judges Nullify Employer Liability in Arbitrations, and draw somewhat different conclusions. They then suggest a different policy prescription to address the problem: banning mandatory predispute arbitration clauses in the employment context altogether.

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The National Surveillance State: A Response to Balkin

In this Response, Professor Kerr concurs with Professor Balkin in The Constitution and the National Surveillance State that the development of new technology presents problems for the law. But for Kerr, those problems do not demand a shift to a new kind of governance, but rather adaptation of the law to the new technology.

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Climate Change and Reassessing the “Right” Level of Government: A Response to Bronin

In this Response, Professor Klass further explores and amplifies the federalism issues that Professor Sara Bronin introduced in her article The Quiet Revolution Revived: Sustainable Design, Land Use, and the States. Professor Klass ultimately advocates applying the “cooperative federalism” approach used in other areas of environmental law to the problems of local regulation of green building.

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Innovating Between and Within Technological Paradigms: A Response to Samuelson

In this Response, Professor Lee builds on Professor Samuelson’s Are Patents on Interfaces Impeding Interoperability? to emphasize that the social costs and benefits of interface patents are highly context-specific. Invoking the concept of “technological paradigms,” Professor Lee argues that strong interface patents can promote significant technological advances in contested industries, but that ex post policy interventions [...]

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Speaking of Silence: A Reply to Making Defendants Speak

In this Response, Professors Judges and Cribari concentrate on explaining why they do not share Professor Sampsell-Jones’s underlying antipathy to the Fifth Amendment right to silence at trial. That antipathy, also frequently expressed by other commentators, is reflected in the article’s proposed rejection of Griffin v. California’s prohibition regarding adverse inferences from the defendant’s assertion [...]

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Justice David Stras Tribute

Before his appointment to the Minnesota State Supreme Court, Justice David Stras was the faculty advisor to the Minnesota Law Review . In recognition of his appointment, this Tribute features essays from Dean David Wippman, Professor Robert Stein, Professor Tim Johnson, and Professor Ryan Scott.

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Exploring the Connections Between Adoption and IVF: Twibling Analyses

This essay responds to Trading-Off Reproductive Technology and Adoption: Does Subsidizing IVF Decrease Adoption Rates and Should It Matter?, in which I. Glenn Cohen and Daniel L. Chen analyze what they describe as an arm-chair principle called “the substitution theory”–the claim that facilitating treatment for infertility, including subsidizing in vitro fertilization (IVF), decreases adoptions. Cohen [...]

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Toward a Theory of Extraterritoriality

In this Response to Jeffrey Meyer’s Dual Illegality and Geoambiguous Law: A New Rule for Extraterritorial Application of U.S. Law, Professor Gibney commends Professor Meyer’s efforts to theorize a comprehensive framework for understanding the extraterritorial scope and limits of United States law.  Professor Meyer’s proposal would give a territorial reading to U.S. law unless (1) [...]

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Comment: “Anticompetitive Effect”

Anticompetitive Effect by Judge Cudahy and Mr. Devlin focuses on a critical issue in antitrust jurisprudence: whether anticompetitive effect should be evaluated under an “aggregate welfare approach to competition” or under a “consumer welfare” approach. What hangs in the balance is the future efficacy of both public and private enforcement. This Comment traces the history [...]

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Right Question, Wrong Answer: A Response to Professor Epstein and the “Permititis” Challenge

In this Response to Professor Epstein’s Against Permititis: Why Voluntary Organizations Should Regulate the Use of Cancer Drugs, Professor Hall argues that while he agrees with Professor Epstein’s assessment of the problems with the FDA drug approval process, he disagrees with his proposed solution. Professor Hall argues that Professor Epstein’s solution—to reduce the FDA to an [...]

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De Novo

  • 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 [...]

  • Defying Auer Deference

    DEFYING AUER DEFERENCE: SKIDMORE AS A SOLUTION TO CONSERVATIVE CONCERNS IN PEREZ v. MORTGAGE BANKERS ASSOCIATION Nicholas R. Bednar, Volume 100, Lead Articles Editor* On March 9, 2015, the Supreme Court of the United States handed down its decision in Perez v. Mortgage Bankers Association.[1]F The Court overturned the D.C. [...]