Feb 4, 2021 | Volume 72, Issue 2
Thomas Davis Volume 72, Issue 2, 687-718 Late 2017 marked, perhaps, the peak of Bitcoin frenzy. A number of specious, if not outright fraudulent issuers took advantage of this craze by publicly listing their stock while touting some connection to blockchain...
Nov 24, 2020 | Volume 72, Issue 1
David M. Driesen Volume 72, Issue 1, 1-54 The debate over the unitary executive theory—the theory that the President should have sole control over the executive branch of government—has proven extremely parochial. Supporters of the theory argue that the original...
Nov 24, 2020 | Volume 72, Issue 1
Luca Enriques & Dirk A. Zetzsche Volume 72, Issue 1, 55-98 This Article introduces the term Corporate Technologies (“CorpTech”) to refer to the use of distributed ledgers, smart contracts, Big Data analytics, artificial intelligence and machine learning in the...
Nov 24, 2020 | Volume 72, Issue 1
James P. George Volume 72, Issue 1, 99-168 The United States has attempted for years to create a more efficient enforcement regime for foreign-country judgments, both by treaty and statute. Long negotiations succeeded in July 2019, when the Hague Conference on Private...
Nov 24, 2020 | Volume 72, Issue 1
Mark Moller & Lawrence B. Solum Volume 72, Issue 1, 169-228 Article III confers the judicial power of the United States over controversies between “citizens” of different states. In Section 1332(c) of Title 28 of the United States Code, Congress has provided that...
Nov 24, 2020 | Volume 72, Issue 1
Bryce Clayton Newell & Bert-Jaap Koops Volume 72, Issue 1, 229-290 The search of a smartphone by the police in connection with an arrest carries the potential to intrude into the very core of an arrestee’s private life. Indeed, such a search has been compared to...
Nov 24, 2020 | Volume 72, Issue 1
Alix Rogers Volume 72, Issue 1, 291-336 Under contemporary American law, human corpses and some bodily parts are classified as quasi-property. Quasi-property is an American legal conception composed of limited interests that mimic some of the functions of property,...
Nov 24, 2020 | Volume 72, Issue 1
Joan C. Williams, Rachel M. Korn & Sky Mihaylo Volume 72, Issue 1, 337-464 This Article joins other voices in challenging what I will call the “implicit bias consensus” in employment discrimination law, first crystallized in the work of Susan Sturm and Linda...
Aug 1, 2020 | Volume 71, Issue 5
Jonathan H. Adler Volume 71, Issue 5, 1101-1126 As a presidential candidate, Donald Trump promised to curtail federal environmental regulation and empower the states. Has the Trump Administration made good on these pledges to reinvigorate cooperative federalism and...
Aug 1, 2020 | Volume 71, Issue 5
Ming Hsu Chen Volume 71, Issue 5, 1127-1142 The use of guidance documents in administrative law has long been controversial and considered to be one of the most challenging aspects of administrative law. When an agency uses a guidance document to change or make...
Aug 1, 2020 | Volume 71, Issue 5
Daniel A. Farber Volume 71, Issue 5, 1143-1176 President Trump has used emergency powers to achieve key parts of his policy agenda, exemplified by his travel ban, funding for the border wall, and tariffs on many imports. He has also declared the 2020 coronavirus...
Aug 1, 2020 | Volume 71, Issue 5
Alice Kaswan Volume 71, Issue 5, 1177-1206 The Trump Administration has been rolling back environmental and other regulations at a rapid rate. Each time, they are called upon to interpret their authorizing statutes. As they reverse previous administrations’...
Aug 1, 2020 | Volume 71, Issue 5
Aaron L. Nielson Volume 71, Issue 5, 1207-1224 Stable law is valuable, yet also remarkably lacking in our nation’s internet policy. Over the last two decades, the Federal Communications Commission (FCC) has charted a zigzagging course between heavier and lighter...
Aug 1, 2020 | Volume 71, Issue 5
Christopher J. Walker & Rebecca Turnbull Volume 71, Issue 5, 1225-1248 As part of the Hastings Law Journal’s Administrative Law in the Age of Trump Symposium, this Essay argues that administrative law should stop fixating on federal courts. While court-centric...
Aug 1, 2020 | Volume 71, Volume 71, Issue 5
Deborah Brundy Volume 71, Issue 5, 1249-1282 After years of enduring devastating loss of property and life, toxic air quality and intermittent power shutoffs, the public is primed for dramatic change to ensure a safe and resilient power grid. To achieve this,...
May 10, 2020 | Volume 71, Issue 4
David A. Dana & Hannah J. Wiseman Volume 71, Issue 4, 845-900 Since its introduction in 1967, the account of property rights formation by Harold Demsetz has pervaded the legal and economic literature. Demsetz theorized that as a once-abundant, commonly shared...
May 10, 2020 | Volume 71, Issue 4
Brigham Daniels, Andrew P. Follett, & Joshua Davis Volume 71, Issue 4, 901-958 The 1970 Clean Air Act is arguably Congress’ most important environmental enactment. Since it became law fifty years ago, much could be and has been said about how it has changed both...
May 10, 2020 | Volume 71, Issue 4
Laura Karas, MD, MPH; Gerard F. Anderson, PhD; Robin Feldman, JD Volume 71, Issue 4, 959-974 The Supreme Court ruled in FTC v. Actavisthat a delay in generic entry may be anticompetitive when part of a patent settlement includes a large and otherwise unjustified value...
May 10, 2020 | Volume 71, Issue 4
Stephen D. Sugarman Volume 71, Issue 4, 975-1018 California Supreme Court Justice Roger J Traynor entered the debated between pragmatists and formalists, siding with the former in both his scholarly writings and in his judicial opinions, especially in torts. In this...
May 10, 2020 | Volume 71, Issue 4
Frazer A. Tessema, Aaron S. Kesselheim, Michael S. Sinha Volume 71, Issue 4, 1019-1052 Brand-name prescription drugs are sold at extremely high prices in the US because patents and other market exclusivities provided by the government allow manufacturers to exclude...
May 10, 2020 | Volume 71, Issue 4
Michael R. Ulrich Volume 71, Issue 4, 1053-1100 The two landmark gun rights cases, District of Columbia v. Hellerand McDonald v. City of Chicago, came down in 2008 and 2010, respectively. In the decade that has followed, two things have become abundantly clear. First,...
May 10, 2020 | Volume 71, Issue 4
Edmund Ursin Volume 71, Issue 4, 1101-1052 Roger Traynor, who served on the California Supreme Court from 1940 to 1970, the last five years as Chief Justice, was one of America’s great judges. This Article compares Traynor’s view of the lawmaking role of courts with...
May 10, 2020 | Volume 71, Issue 4
Kevin Costello Volume 71, Issue 4, 1053-1080 While the process of nominating and confirming justices to the U.S. Supreme Court has always been political in nature, the three most recent nominations of Merrick Garland, Neil Gorsuch, and Brett Kavanaugh illustrate the...
May 10, 2020 | Volume 71, Volume 71, Issue 4
Gian Gualco-Nelson Volume 71, Issue 4, 1181-1206 Elections create an opportunity for voters to get to know the candidates, but elections also give voters the opportunity to get to know their fellow voters. Campaigns are obligated to disclose the identity of their...
Apr 8, 2020 | Volume 71, Issue 3
Teri Dobbins Baxter Volume 71, Issue 3, 535-588 When health policy experts noticed that health outcomes for African Americans were consistently worse than those of their White counterparts, many in the health care community assumed that the poor outcomes could be...
Apr 8, 2020 | Volume 71, Issue 3
Amnon Reichman, Yair Sagy, & Shlomi Balaban Volume 71, Issue 3, 589-636 This Article reveals the untold story of Legal-Net, Israel’s cloud-based judicial management system. While scholarly attention has thus far focused on the narrow question of the impact...
Apr 8, 2020 | Volume 71, Issue 3
Lois A. Weithorn Volume 71, Issue 3, 637-698 This Article examines concepts of treatment decisionmaking capacity relevant to medical aid in dying as it is currently authorized in the United States. In order to be eligible for medical aid in dying in one of the ten...
Apr 8, 2020 | Volume 71, Issue 3
Emily Winston Volume 71, Issue 3, 699-748 BlackRock’s recent public letters to the CEOs of the companies in which it invests have drawn substantial attention from stock market actors and observers for their conspicuous call on corporate CEOs to focus on sustainability...
Apr 8, 2020 | Volume 71, Issue 3
Ruth Zafran Volume 71, Issue 3, 749-782 How should the state treat siblings’ legal relationships in cases where the relationship is based solely on genetics, such as between siblings who were born of the same sperm donor, but did not grow up together? How should it...
Apr 8, 2020 | Volume 71, Issue 3
Alicia Ginsberg Volume 71, Issue 3, 783-812 Congress enacted the Sherman Act in 1890 to promote competition and creativity in the marketplace. The Sherman Act prohibits agreements that restrain trade and lays out rules regarding monopoly power. This Note explores...
Apr 8, 2020 | Volume 71, Issue 3
Neriah Yue Volume 71, Issue 3, 813-844 The advent of social media platforms in the mid-2000s increased global communication and encouraged innovative activism by ushering new, effective ways to organize and protest. News agencies have recently reported the misuse of...
Feb 14, 2020 | Volume 71, Issue 2
Isaac D. Buck Volume 71, Issue 2, 261-306 As it approaches its tenth birthday, the Patient Protection and Affordable Care Act (ACA) is devolving. Intended to solve problems that had vexed American health care for generations, the ACA built a comprehensive structure by...
Feb 14, 2020 | Volume 71, Issue 2
Michael A. Carrier, Mark A. Lemley, & Shawn Miller Volume 71, Issue 2, 307-358 The issue of high drug prices has recently exploded into public consciousness. And while many potential explanations have been offered, one has avoided scrutiny. Why has the growth in...
Feb 14, 2020 | Volume 71, Issue 2
Rosalind Dixon & David Landau Volume 71, Issue 2, 359-418 Presidential term limits are an important and common protection of constitutional democracy around the world. But they are often evaded because they raise particularly difficult compliance problems that we...
Feb 14, 2020 | Volume 71, Issue 2
Dustin Marlan Volume 71, Issue 2, 419-474 In the landmark 1953 case of Haelan Laboratories v. Topps Chewing Gum, Judge Jerome Frank first articulated the modern right of publicity as a transferable intellectual property right. The right of publicity has since been...
Feb 14, 2020 | Volume 71, Issue 2
Katherine Grainger Volume 71, Issue 2, 475-500 In 2018, the Federal Communications Commission ended federal net neutrality protections in its Restoring Internet Freedom Order. In response, many states introduced legislation to create their own state-level protections....
Feb 14, 2020 | Volume 71, Issue 2
Bert Lathrop Volume 71, Issue 2, 501-534 The relentless accumulation of private consumer information through online services has dramatically expanded the attack surface available to cyber-criminals and belligerent state actors looking to either enrich themselves or...
Dec 1, 2019 | Volume 71, Issue 1
Peter C.H. Chan Volume 71, Issue 1, 1-78 This Article tests Galanter’s party capability theory in China’s grassroots courts by empirically examining 858 sampled judgments of rural land dispute lawsuits between marriedout women (the “have-nots,” or the less resourceful...
Dec 1, 2019 | Volume 71, Issue 1
Christopher S. Elmendorf Volume 71, Issue 1, 79-150 The problem of local-government barriers to housing supply is finally enjoying its moment in the sun. For decades, the states did little to remedy this problem and arguably they made it worse. But spurred by a rising...
Dec 1, 2019 | Volume 71, Issue 1
Vivian E. Hamilton Volume 71, Issue 1, 151-196 The routine and repeated head impacts experienced by athletes in a range of sports can inflict microscopic brain injuries that accumulate over time, even in the absence of concussion. Indeed, cumulative exposure to head...
Dec 1, 2019 | Volume 71, Issue 1
Zoe Jordan Volume 71, Issue 1, 197-228 Although adulthood legally begins at age eighteen, young adults between the ages of eighteen and twenty-one are distinct from the rest of the adult population. Many studies conducted over the last two decades have revealed that...
Dec 1, 2019 | Volume 71, Issue 1
Luke Sanders Volume 71, Issue 1, 229-260 The Arctic ice cap is melting. As the ice recedes, shipping lanes are opening that present shorter transport routes across the top of the globe. Industry analysts predict an Arctic shipping boom in coming years. In response,...
Aug 7, 2019 | Volume 70, Issue 6
Ignacio N. Cofone Volume 70, Issue 6, 1389-1444 While algorithmic decision-making has proven to be a challenge for traditional antidiscrimination law, there is an opportunity to regulate algorithms through the information that they are fed. But blocking information...
Aug 7, 2019 | Volume 70, Issue 6
Rebecca Green Volume 70, Issue 6, 1445-1490 We are entering an era in which computers can manufacture highly-sophisticated images, audio, and video of people doing and saying things they have, in fact, not done or said. In the context of political campaigns, the...
Aug 7, 2019 | Volume 70, Issue 6
Yafit Lev-Aretz Volume 70, Issue 6, 1491-1546 The term “data philanthropy” has been used to describe the sharing of private sector data for socially beneficial purposes, such as academic research and humanitarian aid. The recent controversy over an academic...
Aug 7, 2019 | Volume 70, Issue 6
Charles W. Murdock Volume 70, Issue 6, 1547-1612 In large part due to two poorly reasoned decisions by Justice Powell in the early 1980s, Chiarella v. U. S. and Dirks v. SEC, the development of insider trading law has been constrained, enforcement has been hampered,...
Aug 7, 2019 | Volume 70, Issue 6
Eleanor Barczak Volume 70, Issue 6, 1613-1638 Catholic health care systems in the United States have long limited women’s access to reproductive care. Controlled by the Ethical and Religious Directives promulgated from the Church, Catholic hospitals are prohibited...
Aug 7, 2019 | Volume 70, Issue 6
Leah Selby Gray Volume 70, Issue 6, 1639-1666 The American health care system is far from ideal. Health insurance is expensive, yet often inadequate, and patients can fall into bankruptcy paying for necessary medical care. Patients often face challenges finding...
May 27, 2019 | Volume 70, Issue 5
Frank J. Colucci Volume 70, Issue 5, 1141-1174 This symposium Article situates Justice Anthony M. Kennedy’s final concurring opinion in Trump v. Hawaii within his larger jurisprudence. Part I traces its separation of powers foundations by examining then-Judge...
May 27, 2019 | Volume 70, Issue 5
The Honorable Marsha Berzon Volume 70, Issue 5, 1175-1184 Full...
May 27, 2019 | Volume 70, Issue 5
Ashutosh Bhagwat Volume 70, Issue 5, 1185-1192 Full...
May 27, 2019 | Volume 70, Issue 5
Erwin Chemerinsky Volume 70, Issue 5, 1193-1198 Full...
May 27, 2019 | Volume 70, Issue 5
Matthew Coles Volume 70, Issue 5, 1199-1206 Full...
May 27, 2019 | Volume 70, Issue 5
Daniel Epps Volume 70, Issue 5, 1207-1212 Full...
May 27, 2019 | Volume 70, Issue 5
Orin S. Kerr Volume 70, Issue 5, 1213-1224 Full...
May 27, 2019 | Volume 70, Issue 5
Leah Litman Volume 70, Issue 5, 1225-1242 Full...
May 27, 2019 | Volume 70, Issue 5
Rory K. Little Volume 70, Issue 5, 1243-1262 During his forty-three years as a federal appellate judge, Anthony M. Kennedy authored over 350 opinions in cases relevant to criminal law (although establishing a precise number using various electronic databases offers a...
May 27, 2019 | Volume 70, Issue 5
Melissa Murray Volume 70, Issue 5, 1263-1272 Full...
May 27, 2019 | Volume 70, Issue 5
Zachary S. Price Volume 70, Issue 5, 1273-1316 Following Justice Kennedy’s retirement and the bitter fight over Justice Kavanaugh’s confirmation, increasingly polarized views about constitutional law in general, and specific constitutional cases in particular,...
May 27, 2019 | Volume 70, Issue 5
Nadine Strossen Volume 70, Issue 5, 1317-1330 Justice Kennedy has been hailed by free speech advocates as a leading free speech champion. In contrast, other experts have not only criticized particular opinions and votes by Justice Kennedy that rejected free speech...
