Print Issues

Volume 71, Issue 4


Privatizing the Reservation?

by  Kristen A. Carpenter & Angela R. Riley

The problems of American Indian poverty and reservation living conditions have inspired various explanations. One response advanced by some economists and commentators, which may be gaining traction within the Trump Administration, calls for the “privatization” of Indian lands. Proponents of this view contend that reservation poverty is rooted in the federal Indian trust arrangement, which…


Bankruptcy as Bailout

Coal Company Insolvency and the Erosion of Federal Law
by  Joshua Macey & Jackson Salovaara

Almost half of all the coal produced in the United States is mined by companies that have recently gone bankrupt. This Article explains how those bankruptcy proceedings have undermined federal environmental and labor laws. In particular, coal companies have used the Bankruptcy Code to evade congressionally imposed liabilities requiring that they pay lifetime health benefits…


Patents, Property, and Prospectivity

by  Jonathan S. Masur & Adam K. Mortara

When judges change the legal rules governing patents, those changes are always retroactive. That is, they apply equally to patents that have already been granted and patents that do not yet exist. There are benefits to making a change in the law retroactive, particularly if the new legal rule is an improvement over what preceded…


Missing the (Certification) Mark

How the Lanham Act Unnecessarily Restricts State and Local Governments as Certifiers
by  Nathaniel F. Rubin

The law regulating certification marks—a close cousin of trademarks—is inadequate to handle the needs of state governments as certifiers. While states play important roles in certifying products, the Lanham Act’s certification mark provisions impose restrictions on certifiers that are designed to rein in self-dealing and anticompeti- tive conduct by private businesses and trade groups. Although…


McCoy v. Louisiana’s Unintended Consequences for Capital Sentencing

by  Elizabeth M. Klein

In McCoy v. Louisiana, the U.S. Supreme Court recognized an expanded Sixth Amendment autonomy right for capital defendants, allowing them to maintain their factual innocence at trial at all costs. The Court’s concern with such defendants’ dignity has an intuitive appeal, and its holding followed neatly from the Court’s Sixth Amendment cases. But McCoy has…