SCLR Print Archive
Vol. 96, No. 1 (2022)
Fifty Ways to Leave Your Lover: Doing Away with Separation Requirements for Divorce
Claire P. Donohue*
April 2023
Despite the evolution of no-fault divorces, which were intended to remove certain barriers to divorce and essentially make any divorce filed inevitable, many jurisdictions prescribe a waiting period before eligibility for divorce, during which there must be a demonstrable period of separation. In support of findings of facts and conclusions of law about whether the The Invention of Antitrust
Herbert Hovenkamp*
April 2023
The long Progressive Era, from 1900 to 1930, was the Golden Age of antitrust theory, if not of enforcement. During that period courts and Progressive scholars developed nearly all of the tools that we use to this day to assess anticompetitive practices under the federal antitrust laws. In a very real sense, we can say Toward a New Fair Use Standard: Attributive Use and the Closing of Copyright’s Crediting Gap
John Tehranian*
April 2023
A generation ago, Judge Pierre Leval published Toward a Fair Use Standard and forever changed copyright law. Leval advocated for the primacy of an implicit, but previously underappreciated, factor in the fair use calculus—transformative use. Courts quickly heeded this call, rendering the impact of Leval’s article nothing short of seismic. But for all of its merits, Leval’s Ditching Daimler and Nixing the Nexus: Ford, Mallory, and the Future of Personal Jurisdiction under the Corporate Consent and Estoppel Framework
Shauli Bar-On*
April 2023
While personal jurisdiction is intended to assess whether a defendant should be forced to defend a lawsuit in a location due to the defendant’s contacts with that forum, the doctrine has shifted to require the plaintiff to show a connection to the forum, even if the defendant otherwise has substantial contact with it. In its Fractionalization to Securitization: How the SEC May Regulate the Emerging Assets of NFTs
Lauren Au*
April 2023
Blockchain technology opened the world to a variety of new technological advances that reshaped the way humans interact and transact with one another. One of the most recent and trending applications of blockchain technology is non-fungible tokens or “NFTs.” NFTs are unique digital tokens encoded on a blockchain that represent ownership of specific digital assets | Vol. 96, No. 2 (2023)
Lenity and the Meaning of Statutes
Jeesoo Nam*
May 2023
Ordinary canons of statutory interpretation try to encode linguistic rules into jurisprudence. Their purpose is to figure out the meaning of a text, and their outcome is to determine the meaning of the text. Both the purpose and the outcome are linguistic. The rule of lenity is not an ordinary canon of statutory interpretation. The Seeing and Serving Students with Substance Use Disorders Through Disability Law
Parker Cragg*
May 2023
The opioid epidemic has brought the immense harms of substance abuse to the fore of national attention. Despite a growing bipartisan consensus that substance use disorders are best addressed through treatment and community support, rather than punitive deterrence measures, policymakers have yet to allocate the necessary resources for a comprehensive and evidence-based national drug policy. Analyzing the Circuit Split Over CDA Section 230(E)(2): Whether State Protections for the Right of Publicity Should be Barred
Courtney Kim*
May 2023
INTRODUCTION In 2018, coworkers notified Karen Hepp, a newscaster and co-anchor for the local Fox affiliate’s morning news program Good Day Philadelphia, that a screenshot of her smiling at a hidden security camera taken about fifteen years ago was being used in various online advertisements for erectile dysfunction and dating apps. Hepp was not previously Affirmative Acting: The Role of Law in Casting More Actors With Disabilities (A Note in Five Acts)
Kira Patterson*
May 2023
SETTING THE STAGE: INTRODUCTION “Always find your light.” This is a common piece of advice given to theater artists, encouraging them to make sure they can be seen on stage. But who gets the chance to grace the stage in the first place? Our society has recently begun to actively ask new questions about Race and Politics: The Problem of Entanglement in Gerrymandering Cases
Stephen Menendian*
April 2023
Gerrymandering—the manipulation of political districting processes and boundaries for partisan political advantage—has proven a troubling and difficult area of constitutional concern. This is partly due to the exceptionally divergent standards of judicial review applicable depending upon the basis for the gerrymander claim. The Supreme Court has consistently held that racial gerrymanders are subject to strict |
Vol. 95, No. 1 (2021)
Democracy Dies in Silicon Valley: Platform Antitrust and the Journalism Industry
Erick Franklund*
Newspapers are classic examples of platforms. They are intermediaries between, and typically require participation from, two distinct groups: on the one hand, there are patrons eager to read the latest scoop; on the other hand, there are advertisers offering their goods and services on the outer edges of the paper in hopes of soliciting sales. Life Story Rights Litigation: Negotiating for a Happy Ending
Kendall Ota*
Filmmakers, television writers, and authors alike have made millions of dollars in the entertainment industry by telling stories that have already been lived by real people. Not only do these creative works force enormous public exposure upon the real people portrayed, but they often portray these real-life inspirations in inaccurate, or even harmful ways. Furthermore, Taxing Guns
Thomas Griffith*, Nancy Staudt†
Policymakers across the nation have recently adopted new taxes on guns. As expected, these policies are controversial. Supporters believe the taxes will increase the cost of weapons, decrease sales, and provide the revenue necessary to fund the costs of gun violence across America. Critics, by contrast, argue the taxes are nothing more than poll taxes Transgender Rights & the Eighth Amendment
Jennifer L. Levi*, Kevin M. Barry†
The past decades have witnessed a dramatic shift in the visibility, acceptance, and integration of transgender people across all aspects of culture and the law. The treatment of incarcerated transgender people is no exception. Historically, transgender people have been routinely denied access to medically necessary hormone therapy, surgery, and other gender-affirming procedures; subjected to cross-gender Designing Supreme Court Term Limits
Adam Chilton*, Daniel Epps†, Kyle Rozema‡ & Maya Sen††
Since the Founding, Supreme Court Justices have enjoyed life tenure. This helps insulate the Justices from political pressures, but it also results in unpredictable deaths and strategic retirements determining the timing of Court vacancies. In order to regularize the appointments process, a number of academics and policymakers have put forward detailed term-limits proposals. However, many | Vol. 95, No. 2 (2022)
Voting and Campaign Financing: Inconsistencies in Law and Policy
Pablo Aabir Das*
October 2022
The right to vote in elections and the right to spend[1] in elections are both historicallyrevered rights that function as critical elements of American democracy.[2]These rights have earned their salience because they are two of the most commonand accessible mechanisms by which Americans can participate in the democraticprocess. In different ways, each right enables citizens to Labor’s New Localism
Andrew Elmore*
May 2022
Millions of workers in the United States, disproportionately women, immigrants, and people of color, perform low-paid, precarious work. Few of these workers can improve their workplace standards because the National Labor Relations Act (“NLRA”) does not sufficiently protect their right to form unions and collectively bargain. Lacking sufficient influence in federal and state government to Detention, Disenfranchisement, and Doctrinal Integration
Zina Makar*
May 2022
On any given day, approximately 2.3 million individuals are incarcerated, many of whom are eligible voters and are disproportionately people of color.[1] The majority of state and local governments do not affirmatively provide incarcerated voters with special accommodations to ensure that they are able to exercise their right to vote, leaving many effectively disenfranchised. What Closing International Law’s Innocence Gap
Brandon L. Garrett*, Laurence R. Helfer†, Jayne C. Huckerby‡
May 2022
Over the last decade, a growing number of countries have adopted new laws and other mechanisms to address a gap in national criminal legal systems: the absence of meaningful procedures to raise post-conviction claims of factual innocence. These legal and policy reforms have responded to a global surge of exonerations facilitated by the growth of Small Fines and Fees, Large Impacts: Ability-to-Pay Hearings
Tia Kerkhof*
May 2022
Imagine, for example, that a woman fails to have auto insurance,[1] which carries a minimum fine of $500 in Massachusetts.[2] In addition, she will be charged a $500 payment or one full year premium of compulsory insurance (whichever is larger), a $45 late fee and a $25 filing fee if she chooses to request a |
Vol. 95, No. 3 (2022)
Overturning Override: Why Executing a Person Sentenced to Death By Judicial Override Violates the Eighth Amendment
Meghann M. Lamb*
December 2022
INTRODUCTION Judicial override is a practice by which a judge overrules a sentence decided by a jury. Perhaps the most alarming, infamous, and controversial form of judicial override occurs when a judge overrules a jury’s Crack Taxes and The Dangers of Insidious Regulatory Taxes
Hayes R. Holderness*
December 2022
An unheralded weapon in the War on Drugs can be found in state tax codes: many states impose targeted taxes on individuals for the possession and sale of controlled substances. These “crack taxes” provide state The Role of State Attorneys General In Improving Prescription Drug Affordability
MICHELLE M. MELLO,* TRISH RILEY† & RACHEL E. SACHS‡
December 2022
Impact litigation initiated by state attorneys general has played an important role in advancing public health goals in contexts as diverse as tobacco control, opioids, and healthcare antitrust. State attorneys general also play a critical Provisional Assumptions
Heidi H. Liu*
December 2022
In courtrooms, the law often asks individuals to ignore information—carefully, purposely—that otherwise feels important. Juries, for example, are often asked to disregard information about a variety of facts, from prior convictions to settlement negotiations. But A Closer Look at the PTAB Operation
Ge You*
December 2022
Prior to the passage of the America Invents Act (“AIA”) in 2011,[1] allegedly low-quality patents were allowed to proliferate. Many of these low-quality patents contributed little to innovation because holders of these patents did not | Vol. 95, No. 4 (2022)
Divided Agencies
Brian D. Feinstein* & Abby K. Wood†
December 2022
Clashes between presidential appointees and civil servants are front-page news. Whether styled as a “deep state” hostile to its democratically selected political principals or as bold “resisters” countering those principals’ ultra vires proposals, accounts of The Social Context of the Law: A Critical Analysis of Reliance Interests in the Department of Homeland Security v. Regents of the University of California
Raquel Muñiz,* Maria Lewis,† Grace Cavanaugh‡ & Melissa Woolsey††
December 2022
In 2020, the U.S. Supreme Court ruled on the Department of Homeland Security v. Regents of the University of California case. The case concerned the rescission of the Deferred Action for Childhood Arrivals (“DACA”) policy, an Dimensional Disparate Treatment
Benjamin Eidelson*
December 2022
The Supreme Court’s decision in Bostock v. Clayton County was an important victory for gay and transgender workers—but the Court’s textual analysis has failed to persuade a number of thoughtful commentators, and it threatens to Say Yes to Her Redress: A Two-Step Approach to Post-Divorce Embryo Disputes
Gabrielle Lipsitz*
December 2022
INTRODUCTION I can’t believe Taylor Swift is about to turn 30 – she still looks so young! It’s strange to think that 90% of her eggs are already gone – 97% by the time she Without Exception? The Ninth Circuit’s Evolving Stance on Nondebtor Releases in Chapter 11 Reorganizations
Caleb Downs*
December 2022
INTRODUCTION Chapter 11 of the Bankruptcy Code (or the “Code”) allows a troubled business debtor the opportunity to restructure its financial affairs so that it may successfully operate in the future.[1] To facilitate this process, |
Vol. 95, No. 5 (2022)
The Rise of Bankruptcy Directors
Jared A. Ellias, * Ehud Kamar† & Kobi Kastiel‡
February 2023
In this Article, we use hand-collected data to shed light on a troubling development in bankruptcy practice: distressed companies, especially those controlled by private equity sponsors, often now prepare for a Chapter 11 filing by appointing bankruptcy experts to their boards of directors and giving them the board’s power to make key bankruptcy decisions. These Cannon Fodder, or a Soldier’s Right to Life
Saira Mohamed*
February 2023
In recent years, hundreds of American service members have died in training exercises and routine non-combat operations, aboard American warships, tactical vehicles, and fighter planes. They have died in incidents that military investigations and congressional hearings and journalists deem preventable, incidents stemming from the U.S. government delaying maintenance of deteriorating equipment or staffing vessels with Colorblind Constitutional Torts
Osagie K. Obasogie* & Zachary Newman†
February 2023
Much of the recent conversation regarding law and police accountability has focused on eliminating or limiting qualified immunity as a defense for officers facing § 1983 lawsuits for using excessive force. Developed during Reconstruction as a way to protect formerly enslaved persons from new forms of racial terror, 42 U.S.C. § 1983 allows private individuals to bring Who’s on the Hook for Digital Piracy? Analysis of Proposed Changes to the Digital Millennium Copyright Act and Secondary Copyright Infringement Claims
Erika Pang
February 2023
FBI Anti-Piracy Warning: The unauthorized reproduction or distribution of a copyrighted work is illegal. Criminal copyright infringement, including infringement without monetary gain, is investigated by the FBI and is punishable by up to five years in federal prison and a fine of $250,000.[1] Chances are that many Americans have seen the warning above at some The Agency Problem in SPACs: A Legal Analysis of SPAC IPO Investor Protections
Tyler J. Martin
February 2023
The events that occurred in 2020 drastically altered the world’s financial markets,[1] contributing to an increase in Initial Public Offerings (“IPOs”) of Special Purpose Acquisition Companies (“SPACs”).[2] In particular, 2020 was a year marked by numerous records within the SPAC market, including the highest number of SPAC IPOs (248), the highest amount of proceeds raised | Vol. 95, No. 6 (2022)
Justice Breyer’s Friendly Legacy for Environmental Law
Richard J. Lazarus*
April 2023
Environmentalists did not cheer President Bill Clinton’s decision in May 1994 to nominate then-First Circuit Judge Stephen Breyer to fill Justice Harry Blackmun’s seat on the Supreme Court. Just the opposite. Many instead expressed serious concerns about Breyer’s impact on environmental law were he to be confirmed, and openly questioned whether a Justice Breyer might Should Humanity Have Standing? Securing Environmental Rights in the United States
Daniel C. Esty*
April 2023
While courts around the world are increasingly recognizing rights of nature or the rights of individuals or communities to a safe and healthy environment, American courts have been much more skeptical of environmental rights claims. This Article examines this growing divergence and identifies trends in American law that might account for it, including explanations deeply Standing for Rivers, Mountains—and Trees—in the Anthropocene
David Takacs*
April 2023
In his well-known article, Should Trees Have Standing?—Toward Legal Rights for Natural Objects, Professor Christopher Stone proposed that courts grant nonhuman entities standing as plaintiffs so their interests may directly represented in court. In this Article, I review Stone’s ideas about standing and our relationship with the natural environment and describe the current, burgeoning, widespread Fish, Whales, and a Blue Ethics for the Anthropocene: How Do We Think About the Last Wild Food in the Twenty-First Century
Robin Kundis Craig*
April 2023
One of the lesser celebrated threads of Christopher Stone’s scholarship was his interest in the ocean—especially international fisheries and whaling. Fish and whales are among the “last wild food”—that is, species that humans take directly from the wild for food purposes. While whales are primarily cultural food, fisheries remain important contributors to the human diet Identifying Contemporary Rights of Nature in the United States
Karen Bradshaw*
April 2023
The Rights of Nature movement is at the precipice of watershed social changes. Leaders of this international, Indigenous-led movement call upon the public to radically reimagine the human relationship with nature. This Article comes at a crucial moment when some leading environmental law scholars are questioning the potential Rights of Nature within the United States. |
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