May 30, 2024 | Volume 75, Issue 4
Itay Ravid & Jonathan Zandberg Volume 75, Issue 4, 977-1046 Access to credit—that is, the ability to receive financial leverage that could help jump-start businesses—is one of the most significant barriers preventing millions of American women from opening new...
May 30, 2024 | Volume 75, Issue 4
Jacob S. Sherkow Volume 75, Issue 4, 1047-1096 Are DNA sequences subject to trade secrecy protection? At least three decades of scholarship has assumed so even while there is no explicit statutory authority directly on point and very few reported decisions in the...
May 30, 2024 | Volume 75, Issue 4
Amna Qamer Volume 75, Issue 4, 1097-1138 United States courts have long struggled to define the intersection of public institutions and religious practices. Though higher education institutions aim to enrich their campuses with diverse communities, they often fail to...
May 30, 2024 | Volume 75, Issue 4
Victor Qiu Volume 75, Issue 4, 1139-1164 By the time federal appellate courts began to examine the withdrawal of money from an ATM and the question of to whom that money belongs pursuant to the first paragraph of the Federal Bank Robbery Act (“FBRA”), 18 U.S.C....
Apr 30, 2024 | Volume 75, Issue 3
Richard A. Booth Volume 75, Issue 3, 555-600 Index funds, such as those that track the S&P 500, are popular with investors because they offer maximum diversification—and thus minimum risk—with management fees that are far lower than those charged by traditional,...
Apr 30, 2024 | Volume 75, Issue 3
Craig Cowie Volume 75, Issue 3, 601-660 Relatively few regulated entities are the targets of enforcement activity or otherwise have direct contact with regulators. Given that absence of direct contact, this Article posits that regulators influence behavior by creating...
Apr 30, 2024 | Volume 75, Issue 3
Michal Saliternik & Sivan Shlomo Agon Volume 75, Issue 3, 661-712 International law is notably reactive in nature. For the most part, international norms and institutions have been devised in response to previously observed crises and incidents—be they wars,...
Apr 30, 2024 | Volume 75, Issue 3
Lois A. Weithorn Volume 75, Issue 3, 713-822 The provision of gender-affirming medical care to transgender or gender diverse (“TGD”) youth is currently the subject of substantial controversy despite an overwhelming consensus in the healthcare community as to the...
Apr 30, 2024 | Volume 75, Issue 3
Daniel Cassee Volume 75, Issue 3, 823-852 Senate Bill 447, California’s recent lift of the ban on recovery of damages for a decedent’s pain, suffering, and disfigurement in survival actions marks a necessary change in the state’s tort law, avoiding the arbitrary and...
Apr 30, 2024 | Volume 75, Issue 3
Alexander S. Whistler Volume 75, Issue 3, 853-878 The Supreme Court’s 2022–2023 term was, unsurprisingly, terrible for millions of Americans. From the environment to affirmative action to student loan forgiveness, the Court remained committed to its project of...
Apr 30, 2024 | Volume 75, Issue 3
Evelyn Wynn Volume 75, Issue 3, 879-912 The United States is facing a growing challenge in financing long-term care as the population ages and the demand for these services continues to grow. The cost of long-term care can be exorbitant, with many individuals and...
Feb 28, 2024 | Volume 75, Issue 2
Charles H. Brower II Volume 75, Issue 2, 261-293 This Article addresses an undertheorized but important topic: the laundering of foreign arbitral awards. Prevailing parties in foreign arbitrations often obtain judgments confirming their awards at the place of...
Feb 28, 2024 | Volume 75, Issue 2
Jake Linford & Aaron Perzanowski Volume 75, Issue 2, 293-372 When Donald Trump descended the escalator of Trump Tower to announce his 2016 presidential bid, Neil Young’s “Rockin’ in the Free World” blared from the loudspeakers. Almost immediately, Young’s...
Feb 28, 2024 | Volume 75, Issue 2
Elise Bernlohr Maizel Volume 75, Issue 2, 373-411 Privilege is a choice. In crafting evidentiary privileges, courts and policymakers have fashioned a rule that concedes that some things are more important than getting to the truth. Indeed, our entire law of privilege...
Feb 28, 2024 | Volume 75, Issue 2
Nicholas Serafin Volume 75, Issue 2, 411-470 States throughout the country are targeting LGBTQ+ youth, singling out transgender youth in particular. Part I of this Article provides an overview of laws targeting LGBTQ+ youth, and argues that many of these laws express...
Feb 28, 2024 | Volume 75, Issue 2
Emma Braden Volume 75, Issue 2, 471-504 A functioning government requires tax revenue, and democratic legitimacy requires a nation’s leaders be subject to the same laws as its citizens. The president’s tax behavior is an opportunity to address both needs. With a...
Feb 28, 2024 | Volume 75, Issue 2
Brian A. Weikel Volume 75, Issue 2, 505-554 Surveillance cameras are increasingly used by the public and law enforcement to prevent and prosecute criminal activity. Individuals and companies can grant law enforcement access to private cameras for both live monitoring...
Dec 30, 2023 | Volume 75, Issue 1
Colleen V. Chien, W. David Ball, and William A. Sundstrom Volume 75, Issue 1, 1-66 Racial disparity is a fact of the United States criminal justice system, but under the Supreme Court’s holding in McCleskey v. Kemp, racial disparities—even sizable, statistically...
Dec 30, 2023 | Volume 75, Issue 1
Albert H. Choi Volume 75, Issue 1, 67-114 Scholars and practitioners have long theorized that by penalizing firms with unattractive governance features, the stock market incentivizes firms to adopt the optimal governance structure at their initial public offerings...
Dec 30, 2023 | Volume 75, Issue 1
Roee Sarel Volume 75, Issue 1, 115-174 ChatGPT is a prominent example of how Artificial Intelligence (AI) has stormed into our lives. Within a matter of weeks, this new AI—which produces coherent and humanlike textual answers to questions—managed to become an object...
Dec 30, 2023 | Volume 75, Issue 1
Pamela Ho Volume 75, Issue 1, 175-198 In the past decade, Latinxs and Asians in the United States have experienced an increase in hate crime victimization. Previous research has identified correlations between hate crime reporting and race. However, few statistical...
Dec 30, 2023 | Volume 75, Issue 1
Joonghan (Joseph) Jo Volume 75, Issue 1, 199-232 The Americans with Disabilities Act (ADA) was enacted with the hope that it would solve issues regarding discrimination against the disabled. However, the outcome fell short of its aspirations. Many people with...
Dec 30, 2023 | Volume 75, Issue 1
Justine Magowan Volume 75, Issue 1, 233-260 The music industry stands on the brink of a crisis. With unpredictable judicial standards that are inconsistent across the country, plaintiffs seeking to protect their musical works against copyright infringement face a...
Aug 25, 2023 | Volume 74, Issue 6
Ellen P. Aprill Volume 74, Issue 6, 1555-1620 The standard view of the relationship between government and the nonprofit charitable sector treats them as separate and distinct. But they are not. Numerous federal agencies have statutory authority to receive...
Aug 25, 2023 | Volume 74, Issue 6
Mark D. Rosen Volume 74, Issue 6, 1621-1682 In a recent decision, the Supreme Court held that “the founding generation took as a given” that states would be constitutionally immune to suit in the courts of sister states, overruling an earlier ruling that interstate...
Aug 25, 2023 | Volume 74, Issue 6
Robert A. Destro Volume 74, Issue 6, 1683-1750 “Constitutional lawsuits are the stuff of power politics in America. The Court may be, and usually is, above party politics and personal politics, but the politics of power is a most important and delicate function, and...
Aug 25, 2023 | Volume 74, Issue 6
Andrew Koppelman Volume 74, Issue 6, 1751-1762 Today’s Supreme Court is so predisposed to find discrimination against religion that it declared it to be present in a case where the discriminator was obeying the Court’s own commands. In Kennedy v. Bremerton School...
Aug 25, 2023 | Volume 74, Issue 6
Ira C. Lupu & Robert W. Tuttle Volume 74, Issue 6, 1763-1812 The very first words of the Bill of Rights mark religion as constitutionally distinctive. Congress may not enact laws respecting an establishment of religion—in particular, acts of worship, religious...
Aug 25, 2023 | Volume 74, Issue 6
John Witte, Jr. & Eric Wang Volume 74, Issue 6, 1813-1848 The U.S. Supreme Court has entered decisively into a new fourth era of American religious freedom. In the first era, from 1776 to 1940, the Court largely left governance of religious freedom to the...
May 18, 2023 | Volume 74, Issue 5
Tomer S. Stein Volume 74, Issue 5, 1281-1330 Corporate law is dominated by an equity-only view of corporate governance that centers on management-shareholder dynamics. This Article expands the management-shareholder paradigm by developing a novel integrated theory of...
May 18, 2023 | Volume 74, Issue 5
Candice Enders & Joshua P. Davis Volume 74, Issue 5, 1331-1352 Attention to how courts address the ethics of defense counsel’s communications with absent class members before class certification is valuable for two primary reasons. First, it provides insight into...
May 18, 2023 | Volume 74, Issue 5
Lauren E. Godshall Volume 74, Issue 5, 1353-1372 Mass torts cases take up a massive swath of the nation’s federal court docket yet are governed by little to no substantive procedural laws. Instead, a host of regular practices for multidistrict litigation (“MDL”)...
May 18, 2023 | Volume 74, Issue 5
Roger Michalski Volume 74, Issue 5, 1373-1402 Ethical norms in litigation are policed through overlapping regulatory regimes. One of these regimes is internal to litigation and split into different components, including Federal Rules of Civil Procedure 11, 26(g), and...
May 18, 2023 | Volume 74, Issue 5
Melissa Mortazavi Volume 74, Issue 5, 1403-1432 When courts consider a choice of class or lead counsel in multidistrict litigation (“MDL”) or class action suits, they often follow the idea of a neutral partisan model. Such a model idealizes lawyer conduct as a blank...
May 18, 2023 | Volume 74, Issue 5
Eli Wald Volume 74, Issue 5, 1433-1458 The legal ethics of class actions is a mess, with many lingering, unresolved questions and conflicting answers. The culprit is a fundamental lack of agreement regarding the identity of the client, without which it is impossible...
May 18, 2023 | Volume 74, Issue 5
W. Bradley Wendel & Joshua P. Davis Volume 74, Issue 5, 1459-1482 Commentators have worried that third-party funding, particularly in complex litigation, may give rise to ethical concerns. In this Essay, we explore an alternative possibility: third-party funding...
May 18, 2023 | Volume 74, Issue 5
Jesse Honig Volume 74, Issue 5, 1483-1512 Climate change has arrived. The next decade will provide critical opportunities to avoid the most devastating impacts of climate change. The decisions we take over the next ten years will be the difference between moderate...
May 18, 2023 | Volume 74, Issue 5
Samantha Mita Volume 74, Issue 5, 1513-1554 Advancements in artificial intelligence (“AI”) and machine learning have found their way into the classroom. The use of artificial intelligence proctoring services (“AIPS”) has risen over the past few years with little...
Apr 6, 2023 | Volume 74, Issue 4
David S. Levine & Joshua D. Sarnoff Volume 74, Issue 4, 987-1056 The unprecedented COVID-19 virus has brought to the forefront many challenges associated with exclusive rights in information, data, and know-how, all of which may constitute protected trade secrets....
Apr 6, 2023 | Volume 74, Issue 4
Jaime S. King, Alexandra D. Montague, Daniel R. Arnold & Thomas L. Greaney Volume 74, Issue 4, 1057-1120 As healthcare markets continue to consolidate and prices continue to rise, economists, legal scholars, antitrust enforcers, and policymakers have the...
Apr 6, 2023 | Volume 74, Issue 4
Ned Snow Volume 74, Issue 4, 1121-1166 The Constitution provides Congress the power to enact copyright laws in order “To promote the Progress of Science.” Some statements by the modern Supreme Court may be interpreted to suggest that “the Progress of Science” is...
Apr 6, 2023 | Volume 74, Issue 4
Andrew W. Winden Volume 74, Issue 4, 1167-1220 Unless U.S. corporations take steps to harden their assets against natural disasters exacerbated by climate change and prepare for the transition to a zero-carbon economy, they face the prospect of catastrophic risk to...
Apr 6, 2023 | Volume 74, Issue 4
Philip Hawkyard Volume 74, Issue 4, 1221-1250 In Mayo Collaborative Services v. Prometheus Laboratories, Inc., the Supreme Court established a two-step framework to determine whether a supposed invention that involves a “natural law” can be a patent-eligible subject...
Apr 6, 2023 | Volume 74, Issue 4
Nick Wiley Volume 74, Issue 4, 1251-1280 Since the turn of the century, there has been an exponential rise in forcibly displaced persons and human rights violations. This rise has coincided with a series of acts that have removed the United States as a global leader...
Feb 26, 2023 | Volume 74, Issue 3
Christopher G. Bradley Volume 74, Issue 3, 607-678 The intersection between privacy law and the big business of consumer data has become a major focus of policymakers, scholars, the business community, and consumer advocates, yet the legal regime governing the...
Feb 26, 2023 | Volume 74, Issue 3
Peter Margulies Volume 74, Issue 3, 679-764 In immigration law, executive discretion has become contested terrain. Courts, officials, and scholars have rarely distinguished between regulatory discretion, which facilitates exclusion and removal of noncitizens, and...
Feb 26, 2023 | Volume 74, Issue 3
Sarah Polcz Volume 74, Issue 3, 765-822 Friendship rewards us with a bond of loyalty and equality. The marketplace rewards us based on what we have to offer. When friends work together to create something, and when the market judges their creation to have value, this...
Feb 26, 2023 | Volume 74, Issue 3
Erin Adele Scharff and Darien Shanske Volume 74, Issue 3, 823-868 Traditional theoretical literature on fiscal federalism urges cities to finance themselves with taxes on immobile sources. Thus, the literature sees real property taxes as the best source of local...
Feb 26, 2023 | Volume 74, Issue 3
Stewart E. Sterk Volume 74, Issue 3, 869-910 Local, national, and global catastrophes entail significant risk for landowners. The government-sponsored National Flood Insurance Program illustrates how subsidizing insurance against catastrophe risk can result in...
Feb 26, 2023 | Volume 74, Issue 3
Rahil Maharaj Volume 74, Issue 3, 911-934 Evolving surveillance technologies present unique challenges for the judiciary to maintain robust Fourth Amendment privacy protections. New surveillance tools such as pole cameras raise significant questions regarding the...
Feb 26, 2023 | Volume 74, Issue 3
Lydia Tonozzi Volume 74, Issue 3, 935-958 The dire state of the prison population in the United States has become common knowledge both at home and abroad. Mass incarceration in the United States has been caused by nearly four decades of retributive criminal justice...
Feb 26, 2023 | Volume 74, Issue 3
Irene Yu Volume 74, Issue 3, 959-986 This Note contributes to the growing literature that attempts to grasp the current landscape of international trade and investment norms and policies in the data age. Focusing on the disputes between the United States and China...
Feb 16, 2023 | Volume 74, Issue 2
Douglas W. Arner, Giuliano G. Castellano, Ēriks K. Selga Volume 74, Issue 2, 235-292 Finance is one of the most digitalized, globalized, and regulated sectors of the global economy. Traditionally technology intensive, the financial industry has been at the forefront...
Feb 16, 2023 | Volume 74, Issue 2
Rebecca A. Delfino Volume 74, Issue 2, 293-348 Deepfakes—audiovisual recordings created using artificial intelligence (AI) technology to believably map one person’s movements and words onto another—are ubiquitous. They have permeated societal and civic spaces from...
Feb 16, 2023 | Volume 74, Issue 2
Nizan Geslevich Packin Volume 74, Issue 2, 349-398 According to studies, money is a major source of anxiety for most Americans. In looking for ways to remedy the source of such anxiety, some believe that increasing children’s financial orientation could help lower...
Feb 16, 2023 | Volume 74, Issue 2
Govind Persad Volume 74, Issue 2, 399-432 This Article examines whether policies—sometimes termed “vaccine mandates” or “vaccine requirements”—that consider vaccination status as a condition of employment, receipt of goods and services, or educational or other...
Feb 16, 2023 | Volume 74, Issue 2
Hadar Y. Jabotinsky & Roee Sarel Volume 74, Issue 2, 433-488 Everybody is talking about cryptocurrencies. These digital tokens, which started in a one-asset market, have swiftly ballooned into a massive and diverse “cryptomarket.” The cryptomarket is still mostly...
Feb 16, 2023 | Volume 74, Issue 2
Peter K. Yu Volume 74, Issue 2, 489-550 This Article examines an unprecedented proposal that India and South Africa submitted to the World Trade Organization (WTO) in October 2020, which called for a waiver of more than thirty provisions in the Agreement on...
Feb 16, 2023 | Volume 74, Issue 2
Sammi Chen Volume 74, Issue 2, 551-582 The new and growing intersection between data privacy and antitrust uses data privacy as both a sword and shield against antitrust liability. On one hand, large technology firms have begun using privacy as a business...
Feb 16, 2023 | Volume 74, Issue 2
Isha Vazirani Volume 74, Issue 2, 583-606 The Department of Homeland Security (DHS) announced that beginning on May 26, 2015, certain H-4 dependents of H-1B nonimmigrants would be eligible to apply for an Employment Authorization Document (EAD). The H-4 EAD program...
