SCLR Print Archive
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Vol. 93, No. 1 (November 2019) Article | Legal Theory Article | Freedom of Speech Note | Privacy Law Note | Immigration Law |
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Talking “Religious, Superstitious Nonsense” in the Classroom: When Do Teachers’ Disparaging Comments About Religion Run Afoul of the Establishment Clause?
Note by Jennifer L. Bryant
Bankruptcy-Remote Special Purpose Entities: An Opportunity For Investors To Maximize the Value of Their Returns While Undergoing More Careful and Realistic Risk Analysis
Note by Katherine J. Baudistel
Buying the Right to Harm
Article by Ehud Guttel & Shmuel Leshem
The Partisan Foundations of Judicial Campaign Finance
Article by Michael S. Kang & Joanna M. Shepherd
Essay: Official Obedience and the Politics of Defining “Law”
Article by Frederick Schauer
Gerontology and the Law: A Selected Annotated Bibliography: 2009-2011 Update
Bibliography by Judy K. Davis & Karen Skinner
A Matter of Life, Death, and Children: The Patient Protection And Affordable Care Act Section 2302 and a Shifting Legal Paradigm
Note by Ryan A. Walsh
Breaking Bad Sentencing Habits: How State Courts’ Retroactive Modifications of Probation Terms Affect Federal Mandatory Sentencing
Note by Andrew Tan
International Law and the Limits of Macroeconomic Cooperation
Article by Eric A. Posner & Alan O. Sykes
Racial Emotion in the Workplace
Note by Tristin K. Green
A Transactional Genealogy of Scandal: From Michael Milken to Enron to Goldman Sachs
Article by William W. Bratton & Adam J. Levitin
The Uneasy Case Against Copyright Trolls
Article by Shyamkrishna Balganesh
Just Another Brown-Eyed Girl: Toward a Limited Federal Right of Publicity Under the Lanham Act in a Digital Age of Celebrity Dominance
Note by Susannah M. Rooney
Waiving Farewell Without Saying Goodbye: The Waiver of Fiduciary Duties in Limited Liability Companies in Delware, and the Call For Mandatory Disclosure
Note by Darren Guttenberg
How Lawyers’ Intuitions Prolong Litigation
Article by Andrew J. Wistrich & Jeffrey J. Rachlinski
Concepts of Law
Article by Mathew D. McCubbins & Mark Turner
Cheap, Easy, or Connected: The Conditions for Creating Group Coordination
Article by Mathew D. McCubbins, Daniel Rodriquez & Nicholas Weller
Beyond Facts and Norms: How Psychological Transparency Threatens and Restores Deliberation’s Legitimating Potential
Article by Arthur Lupia, Yanna Kupnikov & Adam Seth Levine
Can Legal Actors Play Equilibrium Strategies? Two Dubious Assumptions in the Game-Theoretic Analysis of the Law
Article by Daniel Enemark
The Neurobiology of Opinions: Can Judges and Juries Be Impartial?
Article by Isabelle Brocas & Juan D. Carrillo
Farm Fishing Holes: Gaps in Federal Regulation of Offshore Aquaculture
Note by Kristen L. Johns
The Good, the Bad, and the Ugly: The Political Economy and Unintended Consequences of Perpetual Trusts
Note by Daniel J. Amato
Investment Company as Instrument: The Limitations of the Corporate Governance Regulatory Paradigm
Article by Anita K. Krug
End of the Dialogue? Political Polarization, the Supreme Court, and Congress
Article by Richard L. Hasen
Essay: The Enduring and Universal Principle of “Fair Notice”
Article by Theodore J. Boutros, Jr. & Blaine H. Evanson
Proposition 9, Marsy’s Law: An Ill-Suited Ballot Initiative and the (Predictably) Unsatisfactory Results
Note by Ryan S. Appleby
Is Financial Regulation Structurally Biased to Favor Deregulation?
Note by Carolyn Sissoko
Killing in the Fog of War
Article by Adil Ahmad Haque
Cyberstalking, Twitter, and the Captive Audience: A First Amendment Analysis of 18 U.S.C. 2261A(2)
Note by John B. Major
Space Torts: Applying Nuisance and Negligence to Orbital Debris
Note by Luke Punnakanta
Running Afoul of the Non-Refoulment Principle: The [Mis]interpretation and [Mis]application of the Particularly Serious Crime Exception
Postscript (Note) by David Delgado
Details: Specific Facts and the First Amendment
Article by Ashutosh Bhagwat
Re: Defining Securitization
Article by Jonathan C. Lipson
What Is Securitization? And for What Purpose? Article by Steven L. Schwarcz
Why (and How to) Define Securitization? A Sur-Reply to Professor Schwarcz
Article by Jonathan C. Lipson
Misdemeanors
Article by Alexandra Natapoff
LEEDing in the Wrong Direction: Addressing Concerns with Today’s Green Building Policy
Note by Kaleb Keller
The State of Treasury Regulatory Authority After Mayo Foundation: Arguing for an Intentionalist Approach at Chevron Step One
Note by Joana Que
Our Broken Misdemeanor Justice System: Its Problems and Some Potential Solutions
Postscript (Response) by Eve Brensike Primus
Bulk Misdemeanor Justice
Postscript (Response) by Stephanos Bibas
Misdemeanor Injustice and the Crisis of Mass Incarceration
Postscript (Response) by Jonathan Simon
Pay for Regulator Performance
Article by M. Todd Henderson & Frederick Tung
The Rise of U.S. Food Sustainability Litigation
Article by Stephanie Tai
Who Owns Your Skin: Intellectual Property Law and Norms Among Tattoo Artists
Note by Matthew Beasley
Espionage 2.0: Protecting Human Intelligence Sources in the Digital Age
Note by Kimberley A. Church
Antitrust Energy
Article by Barak Orbach & D. Daniel Sokol
Antitrust and Business History
Article by Margaret C. Levenstein
The “Hub-and-Spoke” Conspiracy that Created the Standard Oil Monopoly
Article by Benjamin Klein
Rethinking the Economic Basis of the Standard Oil Refining Monopoly: Dominance Against Competing Cartels
Article by George L. Priest
Were Standard Oil’s Rebates and Drawbacks Cost Justified?
Article by Daniel A. Crane
Revisiting the Revisionist History of Standard Oil
Article by Christopher R. Leslie
The Antitrust Curse of Bigness
Article by Barak Orbach & Grace Campbell Rebling
Standard Oil and U.S. Steel: Predation and Collusion in the Law of Monopolization and Mergers
Article by William H. Page
The Strategic Use of Public and Private Litigation in Antitrust as Business Strategy
Article by D. Daniel Sokol
Moving Beyond Caricature and Characterization: The Modern Rule of Reason in Practice
Article by Andrew I. Gavil
Standard Oil as Lochner’s Trojan Horse
Article by Alan J. Meese
Remedies for Monopolization from Standard Oil to Microsoft and Intel: The Changing Nature of Monopoly Law from Elimination of Market Power to Regulation of Its Use
Article by Peter C. Carstensen
The Long Shadow of Standard Oil: Policy, Petroleum, and Politics at the Federal Trade Commission
Article by Timothy J. Muris & Bilal K. Sayyed
Arizona’s S.B. 1070 and Federal Preemption of State and Local Immigration Laws: A Case for a More Cooperative and Streamlined Approach to Judicial Review of Subnational Immigration Laws
Note by Jennifer R. Phillips
What Would Predatory Pricing Be Without John McGee? A Reply to Professor Leslie
Postscript (Response) by Joshua D. Wright
Determining the Optimal Antitrust Standard: How to Think About Per Se Versus Rule of Reason
Postscript (Response) by Abraham L. Wickelgren
Tarring the Trust: The Political Economy of Standard Oil
Postscript (Response) by Michael Reksulak & William F. Shughart II
Occupy Wall Street and Antitrust
Postscript (Response) by Maurice E. Stucke
Process over Structure: An Organizational Behavior Approach to Improving Corporate Boards
Article by Nicola Faith Sharpe
Examining Empathy: Discrimination, Experience, and Judicial Decisionmaking
Article by Jill Weinberg & Laura Beth Nielsen
Essays: Second Amendment Penumbras: Some Preliminary Observations
Article by Glenn Harlan Reynolds
Taxing Youth: Health Care Reform Writes a Costly Prescription that Leaves the Young and Healthy Paying the Bill
Note by Charles P. Litchfield
Psychotropic Medication and Foster Care Children: A Prescription for State Oversight
Note by Michelle L. Mello
The Media that Need Citizens: The First Amendment and the Fifth Estate
Article by Adam Cohen
Inside the Border, Outside the Law: Undocumented Immigrants and the Fourth Amendment
Article by D. Carolina Nuñez
Closing a Loophole: Headley V. Church of Scientology International as an Argument for Placing Limits on the Ministerial Exception from Clergy Disputes
Note by Molly A. Gerratt
Graffiti and the Constitution: A First Amendment Analysis of the Los Angeles Tagging Crew Injunction
Note by Kelly P. Welch
From Bombs and Bullets to Botnets and Bytes: Cyber War and the Need for a Federal Cybersecurity Agency
Postscript (Note) by Danielle Warner
Copyright Backlash
Article by Ben Depoorter, Alain Van Hiel, & Sven Vanneste
The Federal Circuit and Inequitable Conduct: an Empirical Assessment
Article by Lee Petherbridge, Ph.D, Jason Rantanen, & Ali Mojibi
Whose Office Is This Anyway? A Look at the IRS’s New Position on Offshore Lending
Note by William A. Kessler II
Black and White or Red All Over? The Impropriety of Using Crime Scene DNA to Construct Racial Profiles of Suspects
Note by Natalie Quan
Climate Change and Future Generations
Article by Richard L. Revesz & Matthew R. Shahabian
Governance in the Breach: Controlling Creditor Opportunism
Article by Jonathan C. Lipson
The Nanotechnology Patent Thicket and the Path to Commercialization
Note by Amit Makker
Altruism or Commercialism? Evaluating the Federal Ban on Compensation for Bone Marrow Donors
Note by Nicolette Young
Intellectual Property as a Law of Organization
Article by Jonathan M. Barnett
Embracing the New Geography of Health Care: A Novel Way to Cover Those Left Out of Health Reform
Article by Nathan Cortez
Criminal Cookbooks: Proposing a New Categorical Exclusion for the First Amendment
Note by Chelsea Norell
Blood Electronics: Congo’s Conflict Minerals and the Legislation that Could Cleanse the Trade
Note by Shannon Raj
Toward a Unified Theory of Exclusionary Vertical Restraints
Article by Daniel A. Crane & Graciela Miralles Murciego
Book Review: Integrating into a Burning House: Racial- and Identity-Conscious Visions in Brown’s Inner City
Article by Anthony V. Alfieri
A Congressional Carve Out: The Necessity for Uniform Application of Professional Sports Leagues’ Performance-Enhancing Drug Policies
Note by Lee Linderman
A Flawed Solution: The Difficulties of Mandating a Leverage Ratio in the United States
Note by John Holman
Reverse Incorporation of State Constitutional Law
Article by Joseph Blocher
Within Subject Matter Eligibility—A Disease and a Cure
Article by Allen K. Yu
“Trade in Force”: The Need for Effective Regulation of Private Military and Security Companies
Note by Stephanie M. Hurst
Taking the Fight Back to Title VII: A Case for Redefining “Because of Sex” to Include Gender Stereotypes, Sexual Orientation, and Gender Identity
Note by William C. Sung
Empty Promises
Article by Oren Bar-Gill & Kevin Davis
Oversight Liability for Risk-Management Failures at Financial Firms
Article by Robert T. Miller
Resolving the Dilemma of Nonjusticiable Causation in Failure-to-Warn Litigation
Article by Aaron D. Twerski & Neil B. Cohen
Behavioral Addictions and the Law
Note by Brent S. Colasurdo
Taming the Paparazzi in the “Wild West”: A Look at California’s 2009 Amendment to the Anti-Paparazzi Act and a Call for Increased Privacy Protections for Celebrity Children
Note by Lauren N. Follett
Of Financial Rights of Assisted Reproductive Technology Nonmarital Children and Back-Up Plans
Postscript (Response) by Dara E. Purvis
Can Congress Make You Buy Broccoli? And Why It Really Doesn’t Matter
Postscript (Comment) by David Orentlicher
Gerontology and the Law: A Selected Annotated Bibliography: 2006–2008 Update
Bibliography by Judy Davis, Cindy Guyer & Paul J. Moorman
Protecting Children(?): Marriage, Gender, and Assisted Reproductive Technology
Article by Courtney G. Joslin
How Many Fiduciary Duties Are There in Corporate Law?
Article by Julian Velasco
Beyond No-Man’s Land: Psychiatry’s Imprecision Revealed by Its Critique of SVP Statutes as Applied to Pedophilia
Note by Jennifer Jason
Rethinking Conditional Federal Grants and the Independent Constitutional Bar Test
Note by Douglas A. Wick
The Last Best Hope for Progressivity in Tax
Article by Edward J. McCaffery & James R. Hines Jr.
Fighting for Asylum: A Statutory Exception to Relevant Bars for Former Child Soldiers
Note by Dani Cepernich
Alternatives to District Court Patent Litigation: Reform by Enhancing the Existing Administrative Options
Note by Eric B. Cheng
“These Scales Tell Us That There Is Something Wrong with You”: How Fat Students Are Systematically Denied Access to Fair and Equal Education and What We Can Do to Stop This
Note by Michelle Stover
Discovery for Foreign Proceedings after Intel v. Advanced Micro Devices A Critical Analysis of 28 U.S.C. 1782 Jurisprudence
Note by Marat A. Massen
Technological Fair Use
Article by Edward Lee
Collateral Conflict: Employer Claims of RICO Extortion Against Union Comprehensive Campaigns
Article by James J. Brudney
Using Numerical Statutory Interpretation to Improve Conflict of Interest Waiver Procedures at the FDA
Note by Saurabh Anand
Mixed Systems in Legal Origins Analysis
Note by Kensie Kim
Domesticating Intelligence
Article by Samuel J. Rascoff
Gender, Discourse, and Customary Law in Africa
Article by Johanna E. Bond
Book Review: Reply
Article by Ariela J. Gross
Book Review: Reading Between the (Blood) Lines
Article by Rose Cuison Villazor
Book Review:Discovering Identity in Civil Procedure
Article by Anthony V. Alfieri
Book Review: The “Common Sense” of Race
Article by Neil Gotanda
Book Review: Race, Blood, and What the Alligator Knows: A Review of What Blood Won’t Tell
Article by Jason A. Gillmer
Saving Lives Through Punitive Damages
Article by Joni Hersch & W. Kip Viscusi
The Political Economy of Youngstown
Article by Edward T. Swaine
Thwarting California’s Presumptive LWOP Penalty for Adolescents: Psychology’s and Neuroscience’s Message for the California Justice System
Note by Ashley N. Johndro
Can Widening the Scope of Information Reporting to Include Income Derived from Online Sales Help to Narrow the Expanding Tax Gap?
Note by Maricel P. Montano
What Dignity Demands: The Challenge of Creating Sexual Harassment Protections For Prisons and Other Nonworkplace Settings
Article by Camille Gear Rich
CFIUS as a Congressional Notification Service
Article by David Zaring
Rethinking Donor Disclosure After the Proposition 8 Campaign
Note by David Lourie
Format War, Antitrust Casualties: The Sherman Act and the Blu-Ray–HD DVD Format War
Note by Kevin L. Spark
Rewriting Frankenstein Contracts: Workout Prohibitions in Residential Mortgage-Backed Securities
Article by Anna Gelpern & Adam J. Levitin
Courts and The Politics of Backlash: Marriage Equality Litigation, Then and Now
Article by Jane S. Schacter
The Western Climate Initiative: Cross-Border Collaboration and Constitutional Structure in the United States and Canada
Note by Jeremy Lawrence
Rightful Prosecution or Wrongful Persecution? Abuse of Honest Services Fraud for Political Purpose
Note by Alexa Lawson-Remer
“Counter-Counter-Terrorism via Lawsuit”—The Bivens Impasse
Article by George D. Brown
Vacant Offices: Delays in Staffing Top Agency Positions
Article by Anne Joseph O’Connell
“[J]udicial [I]mperialism”? The South African Litigation, The Political Question Doctrine, and Whether the Courts Should Refuse to Yield to Executive Difference in Alien Tort Claims Act Cases
Note by Marissa Renée Geannette
Equity Compensation and Informant Bounties: How Tying the Latter to the Former May Finally Alleviate the Securities Fraud Predicament in America
Note by Justin Tyler Hughes
Directors Elections and the Role of Proxy Advisors
Article by Stephen J. Choi, Jill E. Fisch, & Marcel Kahan
Taxation and the Competitiveness of Sovereign Wealth Funds: Do Taxes Encourage Sovereign Wealth Funds to Invest in the United States?
Article by Michael S. Knoll
NEPA and CEQA: Effective Legal Frameworks For Compelling Consideration of Adaptation to Climate Change
Note by Katherine M. Baldwin
The Fraud Exception to the Parol Evidence Rule: Necessary Protection for Fraud Victims or Loophole for Clever Parties?
Note by Alicia W. Macklin
The Emergent Logic of Health Care
Article by M. Gregg Bloche
The Failure of Private Equity
Article by Steven M. Davidoff
Second Amendment Standards of Review: What the Supreme Court Left Unanswered in District of Columbia v. Heller
Note by Jason T. Anderson
Reality’s Kids: Are Children Who Participate on Reality Television Shows Covered Under the Fair Labor Standards Act?
Note by Adam P. Greenberg
In Memoriam: A Tribute to Professor Charles H. Whitebread
Article by Rich Chacon, Erwin Chemerinsky, James B. Curtis, Susan Estrich, Michael J. Graetz, Louise LaMothe & Michael Sims
Beyond the Prisoners’ Dilemma: Coordination, Game Theory, and Law
Article by Richard H. McAdams
The Extraterritorial Constitution After Boumediene v. Bush
Article by Gerald L. Neuman
Rethinking the Material Adverse Change Clause in Merger and Acquisition Agreements: Should the United States Consider the British Model?
Note by Andrew C. Elken
Depictions of the Pig Roast: Restricting Violent Speech Without Burning the House
Note by Michael Reynolds
Is the Family at Odds with Equality? The Legal Implications of Equality for Children
Article by Anne L. Alstott
How Courts Can Protect State Autonomy from Federal Administrative Encroachment
Article by Scott A. Keller
Clearing a Path for Digital Development: Taking Patents in Eminent Domain Through the Adoption of Mandatory Standards
Note by Brian Cook
Ganging Up on RICO: Narrowing Gonzalez v. Raichto Preserve the Significance of the Jurisdictional Element as a Constitutional Limitation in the Racketeer Influenced and Corrupt Organizations Act
Note by Noelle Formosa
The Nonconstitutional Character of Ineffective Assistance of Counsel Claims in Immigration Proceedings: A Brief Comment on Afanwi v. Mukasey
Postscript (Comment) by Patrick J. Glen
Interpretive Bulletin 08-1 and Economically Targeted Investing: A Missed Opportunity
Postscript (Comment) by Edward A. Zelinsky
The Rehnquist Court, Structural Due Process, and Semisubstantive Constitutional Review
Article by Dan T. Coenen
Using Legal Process to Fight Terrorism: Detentions, Military Commissions, International Tribunals, and the Rule of Law
Article by Laura A. Dickinson
A Haven for Hate: The Foreign and Domestic Implications of Protecting Internet Hate Speech Under the First Amendment
Note by Peter J. Breckheimer
Equality in the Workplace: Why Family Leave Does Not Work
Note by Erin Gielow