Most Recent Print Issue

Volume 73, Issue 1


Article

Abandoning Trade Secrets

by  Camilla A. Hrdy & Mark A. Lemley

A trade secret, according to the conventional understanding, “expires” only once it is no longer kept secret. Keep the secret for decades or even centuries, as with the formula for Coca-Cola, and you can potentially protect it forever. That conventional wisdom is wrong. A company can “abandon” its trade secrets by failing to derive economic…

Article

Nonmarital Contracts

by  Albertina Antognini

Marriage has long been a recognized limit on the right to contract. Wives were once prevented from contracting entirely, and now gender-neutral rules prevent spouses from contracting over matters that are considered integral to the marital relationship. Outside of marriage, then, scholars have generally assumed that individuals experience no similar impediments in exercising their rights…

Article

Interrogating the Historical Basis for a
Unitary Executive

by  Daniel D. Birk

Drawing on claims about the supposed powers wielded by the King of Great Britain at the time of the Framing, proponents of the “unitary executive” theory of the presidency have long contended that the powers to remove and direct all executive-branch officials are inherent components of the “executive Power” vested in the President by Article…

Note

Judicial Review of Good Cause Determinations Under the Administrative Procedure Act

by  Kyle Schneider

The Administrative Procedure Act (APA) permits agencies to bypass notice-and-comment procedures when justified by “good cause.” The APA’s drafters intended that exception to be reserved for rare instances when exigency outweighed strong interests in public participation and agency deliberation. But today, agencies claim good cause to skip notice-and-comment requirements in a significant percentage of rulemakings.…

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Recent Online Essays

Medical Civil Rights as a Site of Activism

A Reply to Critics

Many continue to diagnose civil rights problems and their solutions using medical frames. Are these policymakers, backed by activists, wrong to do so? The answer, according to legal scholarship that has explicitly considered the question, seems to be yes. While the legal scholarship has emphasized the harms of using medical discourse, it has not explicitly considered its benefits across social movements—and there are several. Rather than suggest that these activists have miscalculated, this Reply seeks to understand why activists and policymakers have deployed medical frames. Further, recognizing that medical discourse and the rights—and burdens—it produces are malleable, this Reply seeks to explore ways in which to further its social justice possibilities.

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Legal Lessons from a Very Fast Problem: COVID-19

This Essay offers a look back on the initial phase of the COVID-19 catastrophe—a crisis that, at the time of this writing, is still expanding and deepening. We suggest three lessons: First, the free flow of information saves lives, an observation which sounds in constitutional free-speech rights, copyright law, and patent law. Second, politically accountable decision-making in the public health sphere has proven inapt in responding to the pandemic; this observation suggests a more prominent role in public health crises for independent administrative agencies and the judiciary. Third, pre-crisis regulations and rulemaking structures for approvals of medical products, and vaccines in particular, have not proven nimble enough in the face of the pandemic; this suggests an opportunity for congressional action to push agencies to move faster.

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Reweighing Medical Civil Rights

Craig Konnoth’s Article, using “medical civil rights” as an angle onto disability, captures the ostensible benefits of disability legal claiming. We partially agree with him on this, but we also believe that he does not fully account for the weight on the other side of the negative aspects of medical framing. This Response contextualizes the benefits and recognition granted to medicalized individuals by noting the drawbacks to medicalization. We conclude by proposing a new way forward for disability justice. 

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How Medicalization of Civil Rights Could Disappoint

Craig Konnoth’s article, Medicalization and the New Civil Rights, shows how medical framing and evidence of physically identifiable and measurable harms have been providing new pathways to vindicate civil rights harms. Longer-term, however, this Response wonders whether medicalization of civil rights might tell a more ambivalent narrative. First, medicalization could produce a sociological narrowing that could eventually limit how we think about justice. Second, and more speculatively, even the utilitarian benefits that medical framing is now producing might diminish as medicalization becomes a new situs for civil rights contests.

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Damnatio Memoriae and Black Lives Matter

This Essay defends the recent scrutiny of civic symbols, triggered by police brutality and killings, against the Trump Administration’s criticism that it constituted a frivolous exercise in cancel culture. It examines links between recent destruction of monuments and the age-old Roman legal procedure of damnatio memoriae to show that condemnation of memory may serve legitimate purposes, especially in rehabilitating public spaces to express society’s disapproval of past offensive actions.

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