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Volume 69, Issue 1


Does Peer Review Work? An Experiment of Experimentalism

by  Daniel E. Ho

Ensuring the accuracy and consistency of highly decentralized and discretionary decisionmaking is a core challenge for the administrative state. The widely influential school of “democratic experimentalism” posits that peer review—the direct and deliberative evaluation of work product by peers in the discipline—provides a way forward, but systematic evidence remains limited. This Article provides the first…


The Unregulated Certification Mark(et)

by  Jeanne C. Fromer

Certification mark law—a branch of trademark law—itself enables consequences that undermine the law’s own goals through inadequate regulation or oversight. Because the law allows certification standards to be kept vague, high-level, and underdeveloped, a certifier can choose to exclude certain businesses inconsistently or arbitrarily, even when those businesses’ goods or services would seem to qualify…


Astroturf Activism

by  Melissa J. Durkee

Corporate influence in government is more than a national issue; it is an international phenomenon. For years, businesses have been infiltrating international legal processes. They secretly lobby lawmakers through front groups: “astroturf” imitations of grassroots organizations. But because this business lobbying is covert, it has been underappreciated in both the literature and the law. This…


Responsiveness to Difference

ADA Accommodations in the Course of an Arrest
by  Robyn Levin

When the Supreme Court heard argument in City & County of San Francisco v. Sheehan in the spring of 2015, it intended to resolve a circuit split. In granting certiorari, the Court planned to clarify whether individuals with disabilities can sue police officers under the ADA if an officer fails to accommodate a disability in the…


Unpacking Digital Containers

Extending Riley’s Reasoning to Digital Files and Subfolders
by  Michael Mestitz

The Supreme Court’s recent decision in Riley v. California held that cell phones cannot be subject to warrantless searches incident to arrest, a strong statement that digital devices are entitled to the protections of the Fourth Amendment. But the opinion leaves many questions unanswered. One of the most important is what expectation of privacy individuals…

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Recent Online Essays

Gotta Collect It All!

Surveillance Law Lessons of Pokémon Go

Days after the release of the mobile game Pokémon Go, a privacy flap ensued from press reports revealing that users on Apple phones who logged in through a Google account had unwittingly granted the developer, Niantic, access to their entire Google account. Moreover, the application’s (app’s) privacy policy allowed Niantic to disclose any information it…

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A Loophole Large Enough to Drive an Autonomous Vehicle Through

The ADA’s “New Van” Provision and the Future of Access to Transportation

“If it looks like a duck, and quacks like a duck, we have at least to consider the possibility that we have a small aquatic bird of the family Anatidœ on our hands.” —Douglas Adams Introduction In August 2016, Uber startled the world by announcing that its customers would soon have a small chance of…

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The Genius of the Personal Benefit Test

Introduction On October 5, when the U.S. Supreme Court hears Salman v. United States, it will focus on the role of the “personal benefit” test in insider trading law for the first time since the test was established in the now iconic 1983 case Dirks v. SEC. Dirks reaffirmed the principle that trading on the…

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The SEC, Administrative Usurpation, and Insider Trading

The history of insider trading law is a tale of administrative usurpation and legislative acquiescence. Congress has never enacted a prohibition against insider trading, much less defined it. Instead, the SEC has led in defining insider trading, albeit without the formality of rulemaking, and subject to varying degrees of oversight by the courts. The reason…

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Family Ties

Salman and the Scope of Insider Trading

Introduction This fall, the U.S. Supreme Court will hear argument in Salman v. United States to consider the scope of insider trading liability under the federal securities laws. Specifically, the Court will consider the legal standard for tippee liability, a standard that it first articulated in its 1983 decision in Dirks v. SEC. Dirks considered…

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Featured Topic in the Law


This term, the Supreme Court heard what stands to be a landmark case in the area of jury deliberations. We've pulled from the Stanford Law Review archives research on the jury and its role.

Evidentiary Instructions and the Jury as Other

The American Jury

Federalism and the State Civil Jury Rights

Pulling the Plug on the Virtual Jury