Response
Isolating Litigants
A Response to Pamela Bookman
by Alan M. Trammell
This Essay is a response to Pamela K. Bookman’s Litigation Isolationism.
SLR Online
Essay
The Original Meaning of Constitutional Inventors
Resolving the Unanswered Question of the MadStad Litigation
by Alexander J. Kasner
Introduction In litigation that garnered national attention, a “garage inventor” of a new design for motorcycle windshields challenged the Leahy-Smith America Invents Act (AIA) as unconstitutional under the U.S. Constitution’s Patent Clause. The basis of the challenge in the case—MadStad Engineering, Inc. v. U.S. Patent & Trademark Office—uncoils as a pleasing syllogism: the AIA transitioned…
Volume 68 (2015-2016)
Essay
Substantive Due Process as a Two-Way Street
How the Court Can Reconcile Same-Sex Marriage and Religious Liberty
by Mark L. Rienzi
Introduction Last month, the potential conflict between same-sex marriage and religious liberty prompted death threats, arson threats, and the temporary closure of a small-town pizzeria in Indiana. The restaurant’s owner had admitted to a reporter that she could not cater a hypothetical same-sex wedding because of her religious beliefs (even though she otherwise serves gay…
Volume 68 (2015-2016)
Response
Widening the Aperture on Fourth Amendment Interests
A Comment on Orin Kerr’s The Fourth Amendment and the Global Internet
by David G. Delaney
Introduction In The Fourth Amendment and the Global Internet, Orin Kerr highlights several important Fourth Amendment questions that few courts have addressed. But in “offer[ing] a general framework for applying the Fourth Amendment to a global computer network in a way that maintains the existing territorial conception of the Fourth Amendment,” Kerr’s article focuses too narrowly…
Volume 68 (2015-2016)
Essay
Safe and Effective for Human Executions?
Glossip v. Gross and the Eighth Amendment Bar Against Off-Label Drug Lethal Injection
by Rose Carmen Goldberg
Introduction In June the U.S. Supreme Court will decide Glossip v. Gross, a challenge to Oklahoma’s lethal-injection protocol brought by three death row inmates. The inmates argue that the protocol’s first drug, midazolam, violates the Eighth Amendment’s prohibition against cruel and unusual punishment because it does not reliably induce unconsciousness. Midazolam’s inadequacy, they claim, could…
Volume 68 (2015-2016)
Essay
Share and Share Alike?
Considering Racial Discrimination in the Nascent Room-Sharing Economy
by Michael Todisco
Introduction The motel’s neon vacancy sign lures the weary traveler from the freeway. She enters and inquires after a room. The receptionist, without looking up from his crossword, slides a clipboard across the front desk. An application? When did motels become prep schools? The traveler scribbles in the requested information. Name: Monique Jackson. Reason you…
Volume 67 (2014-2015)
Essay
Section 2 Zero-Sums
How the Supreme Court Misconstrued the Voting Rights Act, Limits Minority Representation, and Dangerously Pits Minorities Against Each Other
by Salvador E. Pérez
Introduction Man’s capacity for justice makes democracy possible; but man’s inclination to injustice makes democracy necessary. —Reinhold Niebuhr Fifty years after the passage of the Voting Rights Act (VRA), legal controversies surrounding voter identification, early voting, voter registration, campaign finance, and redistricting continue to raise fundamental questions that, when answered, inform a theory of democracy.…
Volume 67 (2014-2015)
Essay
Dual Registration Voting Systems
Safer and Fairer?
by Chelsea A. Priest
Introduction On November 4, 2014, more than 21,000 Kansans who had attempted to register to vote were denied that opportunity. The cause? A law that went into effect in January 2013 requiring that registrants provide proof of citizenship. Kansas’s law is only one of the most recent examples of this country’s general trend toward stricter…
Volume 67 (2014-2015)
Essay
New Republican Bill Is Network Neutrality in Name Only
by Barbara van Schewick & Morgan N. Weiland
Introduction After a year of debates and a month before the Federal Communication Commission’s (FCC’s) rulemaking on network neutrality, the GOP has finally joined the party. Through a draft bill released late last week, congressional Republicans have taken a step in the direction of supporting network neutrality. That’s a good thing, and moves them closer…
Volume 67 (2014-2015)
Essay
The Case for an International Court of Civil Justice
by Maya Steinitz
Introduction We live in a world in which the victims of cross-border mass torts de facto (not de jure) have no court to turn to in order to pursue legal action against American multinational corporations when they are responsible for disasters. The only way to provide a fair and legitimate process for both victims and corporations…
Volume 67 (2014-2015)
Essay
Dumping Debt and Seizing Assets
Ukrainian Countermeasures for Russian Aggression
by Cynthia Barmore & Chris Miller
Introduction Russia’s war on Ukraine is an unlawful use of force that has imposed needless suffering on Ukraine and its people. Through (1) its unjustified occupation and annexation of Ukraine’s Crimea region and (2) its support for antigovernment insurgencies in Ukraine’s eastern provinces of Donetsk and Lugansk, Russia is largely responsible for an unprovoked war…
Volume 67 (2014-2015)
Essay
Questioning Sincerity
The Role of the Courts After Hobby Lobby
by Ben Adams & Cynthia Barmore
Introduction In Burwell v. Hobby Lobby Stores, Inc., the Supreme Court extended the protections of the Religious Freedom Restoration Act (RFRA) to Hobby Lobby, Mardel, and Conestoga Wood Specialties, three closely held corporations, and held that the contraception mandate of the Affordable Care Act substantially burdened their religious exercise. The sincerity of their religious beliefs was…
Volume 67 (2014-2015)
Essay
The Brady Colloquy
by Jason Kreag
Introduction Ensuring that prosecutors comply with their ethical and due process disclosure requirements has been a distinctly vexing problem for the criminal justice system, particularly in light of the frequency of wrongful convictions caused by prosecutorial misconduct. The problem stems from the shortcomings of the Brady doctrine and institutional forces that make it difficult to…
Volume 67 (2014-2015)
Essay
Ex Post Incentives and IP in Garcia v. Google and Beyond
by Clark D. Asay
Introduction The Ninth Circuit’s recent opinion in Garcia v. Google, Inc. has attracted significant attention across the legal, political, and business worlds because of its possible implications for copyright law, free expression, and existing business models in the entertainment industry. The plaintiff, Cindy Lee Garcia, made several requests to Google’s YouTube to take down an…
Volume 67 (2014-2015)
Essay
Network Nepotism and the Market for Content Delivery
by Tejas N. Narechania
Introduction This summer, the Federal Communications Commission (FCC) officially launched its third attempt to impose network neutrality rules on Internet traffic. But before the Commission could release its proposed regulations, they leaked to the Wall Street Journal and were quickly embroiled in controversy. Chief among the objections was the possibility that the new regulations would…
Volume 67 (2014-2015)
Essay
Improving Prosecution of Sexual Assault Cases
Can the Justice Department Use 42 U.S.C. § 14141 to Investigate Prosecutors’ Offices?
by Amy Knight Burns
In December 2013, an editorial appeared in the Missoulian, a Montana-based newspaper, criticizing Missoula County Attorney Fred Van Valkenburg for a statement about his office’s handling of rape prosecutions: that attorneys in his office could review and work on those cases “whenever ‘they have spare time.’” Van Valkenburg published a defiant response. This exchange was part…
Volume 67 (2014-2015)
Essay
The Post-Boumediene Paradox
Habeas Corpus or Due Process?
by Mary Van Houten
Introduction In Boumediene v. Bush, the Supreme Court famously held that the writ of habeas corpus, guaranteed by the Suspension Clause, had “full effect” at Guantanamo Bay, Cuba. But Boumediene did not specify how other constitutional rights, such as the writ’s oftentimes-inextricable partner, the Due Process Clause, should influence the analysis. After Boumediene, the D.C. Circuit…
Volume 67 (2014-2015)
Essay
Preliminary Injunctions Post-Mayo and Myriad
by Jacob S. Sherkow
The Supreme Court has recently expressed increased interest in patent eligibility, or patentable subject matter, the doctrine that limits the types of inventions eligible for patenting. Its two decisions, Mayo Collaborative Services v. Prometheus Laboratories, Inc., in 2012, and Association for Molecular Pathology v. Myriad Genetics, Inc., in 2013, represented the first broad restrictions on…
Volume 67 (2014-2015)
Essay
Probability, Contrary Evidence, and Judicial Mistake
by Brian Sawers
In Business Roundtable v. SEC, the D.C. Circuit struck down Rule 14a-11, which granted certain shareholders the right to nominate directors on the corporate proxy. The decision is important not only because it halted the SEC’s efforts to regulate proxy access, but also because it imposes a new requirement of cost-benefit analysis for financial regulation.…
Volume 66 (2013-2014)
Essay
The Children in Families First Act
Overlooking International Law and the Best Interests of the Child
by Nila Bala
When Tarikuwa Lemma was thirteen, she was sold. She and her two sisters were adopted by an Arizona family who were told Tarikuwa’s parents died of AIDS. The truth was that her mother had died during childbirth, but her father and her large extended family were alive and well—and capable of taking care of the…