Minnesota Law Review

Volume 97 Lead Piece, How Business Fares in the Supreme Court

A number of scholars, journalists, and at least one member of Congress claim that the current Supreme Court (the “Roberts Court”) is more favorable to business than previous Supreme Courts have been. Other commentators disagree, while acknowledging that the Roberts Court is “less hostile to enterprise than the Warren Court” was; one of these commentators [...]

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Does International Law Matter?

The importance of international law has grown in an increasingly global world. States and their citizens are interconnected and depend on each other to enforce and comply with international law to meet common goals. Despite the expanding presence of international law, the question that remains is whether international law matters. Do individuals comply with international [...]

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Our Partisan Foreign Affairs Constitution

The conventional wisdom tends to treat constitutional arrangements, such as the allocation of foreign affairs powers, as efficiency enhancing constraints that yield benefits for all societal actors. This Article argues, on the contrary, that partisan actors can often manipulate the scope of the foreign affairs powers to achieve narrow ideological or electoral objectives, often at [...]

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Branding Privacy

This Article focuses on the problem of the privacy lurch, defined as an abrupt change made to the way a company handles data about individuals. Two prominent examples include Google’s decision in early 2012 to tear down the walls that once separated data collected from its different services and Facebook’s decisions in 2009 and 2010 [...]

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The Presumption of Patentability

When the Framers of the United States Constitution granted Congress the authority to create a patent system, they certainty did not envision a patent as an a priori entitlement. As it stands now, anyone who files a patent application on anything is entitled to a presumption of patentability. A patent examiner who seeks to challenge [...]

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First Amendment and the Right to Lie: Regulating Knowingly False Campaign Speech After United States v. Alvarez

With the people relying more and more on political advertising to inform them about candidates and elections, it is imperative to try to stop or limit false speech about candidates and the election procedures. False speech undermines the integrity of elections. This has led some states to enact laws banning false campaign materials. The problem [...]

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Up or Out: Why “Sufficiently Reliable” Statistical Risk Assessment Is Appropriate at Sentencing and Inappropriate at Parole

Sentencing judges and parole release authorities are increasingly using statistical risk assessments to guide their decision-making. Risk assessment instruments rely on statistical research and modeling to predict an individual’s chance of recidivating based on information about the individual like age and number of prior arrests. These instruments are subject to serious statistical and legal limitations [...]

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Going Back in Time: The Search for Retroactive Rulemaking Power in Statutory Deadlines

Congress regularly enacts complex laws that require administrative agencies to promulgate rules by specific deadlines. Yet, as agencies do the work of creating rules and, from time to time, miss statutory deadlines, a question remains as to whether an agency can promulgate a rule that is retroactive to the statutory deadline. This seemingly esoteric issue, [...]

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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. [...]