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Volume 70, Issue 4


‘With the Indian Tribes’

Race, Citizenship, and Original Constitutional Meanings
by  Gregory Ablavsky

Under black-letter law declared in the U.S. Supreme Court’s decision in Morton v. Mancari, federal classifications of individuals as “Indian” based on membership in a federally recognized tribe rely on a political, not a racial, distinction, and so are generally subject only to rational basis review. But the Court recently questioned this longstanding dichotomy, resulting…


Diagonal Public Enforcement

by  Zachary D. Clopton

Civics class teaches the traditional mode of law enforcement: The legislature adopts a regulatory statute, and the executive enforces it in the courts. But in an increasingly interconnected world, a nontraditional form of regulatory litigation is possible in which public enforcers from one government enforce laws adopted by a second government in the second government’s…


Quantifying Partisan Gerrymandering

An Evaluation of the Efficiency Gap Proposal
by  Benjamin Plener Cover

Electoral districting presents a risk of partisan gerrymandering: the manipulation of electoral boundaries to favor one political party over another. For three decades, the U.S. Supreme Court has failed to settle on a legal test for partisan gerrymandering, and such claims have uniformly failed. Until recently. Plaintiffs prevailed before a three-judge federal panel in Wisconsin…


Beyond Covenants Not to Compete

Equilibrium in High-Tech Startup Labor Markets
by  Yifat Aran

The literature analyzing the relationship between enforceability of covenants not to compete and the success of Silicon Valley is incomplete. The microstructure of the employee stock options market, combined with California’s strong public policy against noncompete enforcement, creates an equilibrium in which employees at less succesful firms can move to competitors at little or no…


Causation in Reverse Payment Antitrust Claims

by  Kevin B. Soter

Following the U.S. Supreme Court’s 2013 holding in FTC v. Actavis, Inc. that antitrust liability can attach to reverse payment patent settlements, courts have diverged about how to determine whether private parties who prove that such an agreement violates antitrust law are entitled to any relief. Unresolved issues about the private plaintiff causation requirement are…