SCLR Print Archive

Vol. 96, No. 1 (2022)

Fifty Ways to Leave Your Lover: Doing Away with Separation Requirements for Divorce

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

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The Invention of Antitrust

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

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Toward a New Fair Use Standard: Attributive Use and the Closing of Copyright’s Crediting Gap

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

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Ditching Daimler and Nixing the Nexus: Ford, Mallory, and the Future of Personal Jurisdiction under the Corporate Consent and Estoppel Framework

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

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Vol. 96, No. 2 (2023)

Lenity and the Meaning of Statutes

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

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Seeing and Serving Students with Substance Use Disorders Through Disability Law

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.

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Analyzing the Circuit Split Over CDA Section 230(E)(2): Whether State Protections for the Right of Publicity Should be Barred

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

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Race and Politics: The Problem of Entanglement in Gerrymandering Cases

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

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Vol. 96, No. 3 (2023)

Self-Defense Exceptionalism and the Immunization of Private Violence

After the high-profile trial of Kyle Rittenhouse, the parameters of lawful self-defense are a subject of intense public and scholarly attention. In recent years, most commentary about self-defense has focused on “Stand Your Ground” policies that remove the duty to retreat before using lethal force. But the reaction to Rittenhouse’s case reflects a different, more

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Suing SPACs

In 2020, the financial world became transfixed by a massive increase in the number of firms going public through special purpose acquisition company (“SPAC”) transactions. A SPAC is a publicly traded company formed solely for the purpose of raising money from investors and choosing a merger partner, thereby bringing the target company public. SPAC shareholders

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Co-Creating Equality

When a creative work has many co-creators, not all of whom contributed equally, how should they split ownership? In the absence of a contract, copyright law has long adopted an all-or-nothing answer to this question: if you are deemed to be a “co-author” you get an equal split; otherwise, you get nothing. Because the privileges

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The Limitations of Applying the Stored Communications Act to Social Media

The advent of social media has increasingly affected how people live and communicate. Millions of Americans use social media every day, and the numbers continue to grow. The motivation to post on social media is multifactorial and includes a desire to stay connected, find others with shared interests, change opinions, and encourage action, but posting

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Battle of the Opinions: Conflicting Interpretations of False Opinions and the Falsity Standard Under the False Claims Act

Congress has let loose a posse of ad hoc deputies to uncover and prosecute frauds against the government . . . . [Bad actors] may prefer the dignity of being chased only by the regular troops; if so, they must seek relief from Congress. INTRODUCTION What most people probably do not realize is that approximately ten percent of all government

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Vol. 95, No. 1 (2021)

Life Story Rights Litigation: Negotiating for a Happy Ending

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,

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Taxing Guns

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

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Transgender Rights & the Eighth Amendment

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

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Designing Supreme Court Term Limits

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

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Vol. 95, No. 2 (2022)

Voting and Campaign Financing: Inconsistencies in Law and Policy

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

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Labor’s New Localism

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

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Detention, Disenfranchisement, and Doctrinal Integration

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

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Closing International Law’s Innocence Gap

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

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Small Fines and Fees, Large Impacts: Ability-to-Pay Hearings

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

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Vol. 95, No. 3 (2022)

Provisional Assumptions

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

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A Closer Look at the PTAB Operation

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

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Vol. 95, No. 4 (2022)

Divided Agencies

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

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Dimensional Disparate Treatment

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

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Vol. 95, No. 5 (2022)

The Rise of Bankruptcy Directors

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

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Cannon Fodder, or a Soldier’s Right to Life

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

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Colorblind Constitutional Torts

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

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Who’s on the Hook for Digital Piracy? Analysis of Proposed Changes to the Digital Millennium Copyright Act and Secondary Copyright Infringement Claims

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

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The Agency Problem in SPACs: A Legal Analysis of SPAC IPO Investor Protections

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

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Vol. 95, No. 6 (2022)

Justice Breyer’s Friendly Legacy for Environmental Law

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

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Should Humanity Have Standing? Securing Environmental Rights in the United States

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

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Standing for Rivers, Mountains—and Trees—in the Anthropocene

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

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Fish, Whales, and a Blue Ethics for the Anthropocene: How Do We Think About the Last Wild Food in the Twenty-First Century

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

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Identifying Contemporary Rights of Nature in the United States

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.

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Vol. 94, No. 1 (2020)

Article | Criminal Law
A Criminal Law Based On Harm Alone: The Story of California Criminal Justice Reform
by Joshua Kleinfeld & Thomas Hoyt

Article | State Law
Walling Out: Rules and Standards in the Beach Access Context
by Timothy M. Mulvaney

Note | Healthcare & Life Sciences Law
Genetically Edited Sperm: An Ethical Analysis of the Potential for Modified Humans
by Avery Nelson

Note | Intellectual Property Law
Rearranging Fair Use: A Critical Analysis of Kienitz v. Sconnie Nation
by Eric Wolff

Vol. 94, No. 2 (2021)

Article | Anti-discrimination Law
The Modern American Law of Race

by David E. Bernstein

Article | Tax Law
How the States Can Tax Shifted Corporate Profits: An Application of Strategic Conformity

by Darien Shanske

Article | Anti-discrimination Law
Age Diversity

by Alexander A. Boni-Saenz

Note | Health Care & Life Sciences Law
Big Data in Health Care — Predicting Your Future Health

by Kristina Funahashi

Note | Military Law
Judge, Jury, and Commanding Officer: A Proposal for Judicially Issued Domestic Violence MPOs

by Alisha Nguyen

Vol. 94, No. 3 (2021)

Article | Computer & Internet Law
On Electronic Word of Mouth and Consumer Protection: A Legal and Economic Analysis

by Jens Dammann

Article | Intellectual Property Law
Does Fair Use Matter? An Empirical Study of Music Cases

by Edward Lee and Andrew Moshirnia

Article | Corporate Governance
The Giant Shadow of Corporate Gadflies

by Kobi Kastiel and Yaron Nili

Note | Remedies
An Empirical Study of the Enforcement of Liquidated Damages Clauses in California and New York

by Luca S. Marquard

Note | Constitutional Law
How the First Amendment’s Commitment to Religious Freedom Could Ironically Save Roe v. Wade . . . If We Let It

By Abigail Sellers

Vol. 94, No. 4 (2021)

Article | Constitutional Law
The Certificate of Division and the Early Supreme Court

by Jonathan Remy Nash and Michael G. Collins

Article | Corporate  Law
The Corporate Purpose of Social License

by Hillary A. Sale

Article | Anti-trust Law
Due Process in Antitrust Enforcement: Normative and Comparative Perspectives

by Christopher S. Yoo, Thomas Fetzer, Shan Jiang, and Yong Huang

Note | Constitutional Law
Get Out the Vote (or Else): Testing the Constitutionality of Compulsory Voting

by Ryan Eason

Note | Intellectual Property Law
Not a Vara Big Deal: How Moral Rights, Property Rights, and Street Art Can Coexist

by Mary Daniel


Vol. 94, No. 5 (2021)

Article | Constitutional Law
You’re Fired: The Original Meaning of Presidential Impeachment

by James C. Phillips* & John C. Yoo†

Article | Criminal Law
Prosecutors and Mass Incarceration
by Shima Baradaran Baughman & Megan S. Wright

Article | Financial Regulation
Dynamic Regulation

by Natasha Sarin

Article | Constitutional Law
The Political Reality of Diversity Jurisdiction

by Richard D. Freer

Note | Immigration Law
Time to Go Auer Separate Ways: Why the BIA Should Not Say What the Law is

by Tatum P. Rosenfeld


 Vol. 94, No. 6 (2021)

For Whom Corporate Leaders Bargain

At the center of a fundamental and heated debate about corporate purpose, an increasingly influential view (which we refer to as “stakeholderism”) advocates giving corporate

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Civil vs. Criminal Legal Aid

The past few decades have highlighted the insidious effects of poverty, particularly for poor people who lack access to legal representation. Accordingly, there have been

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Vol. 93, No. 1 (November 2019)

Article | Legal Theory
The Impact of Artificial Intelligence on Rules, Standards, and Judicial Discretion
by Frank Fagan & Saul Levmore

Article | Freedom of Speech
Facebook v. Sullivan: Public Figures and Newsworthiness in Online Speech
by Thomas E. Kadri & Kate Klonick

Note | Privacy Law
Data Protection in the Wake of the GDPR: California’s Solution for Protecting “the World’s Most Valuable Resource”
by Joanna Kessler

Note | Immigration Law
On Immigration, Information, and the New Jurisprudence of Federalism
by Nathaniel F. Sussman

Vol. 93, No. 2 (January 2020)

Article | International Law
In Defense of International Comity
by Samuel Estreicher & Thomas H. Lee

Article | Constitutional Law
Rethinking Racial Entitlements: From Epithet to Theory

by Tristin K. Green

Note | Tax Law
Charity for All: A Modern Call for a Renewed Commitment to Charitable Giving
by Joey Bloodworth

Note | Environmental Law
Moving CEQA Away from Judicial Enforcement: Proposal for a Dedicated CEQA Agency to Address Exclusionary Use of CEQA
by Ha Chung

Note | Family Law
A Proposed Cure: More Expansive Conversion Therapy Legislation and the Limits of Parental Rights
by Nicole A. Meier

Vol. 93, No. 3 (July 2020)

Article | Anti-Discrimination Law
Do Black Injuries Matter?: Implicit Bias and Jury Decision Making in Tort Cases

by Jonathan Cardi, Valerie P. Hans& Gregory Parks

Article | Legal Theory
Doctrinal Sunsets

by David Schraub

Article | Legal Theory
Performative Causation

by Noah Smith-Drelich

Note | Constitutional Law
Applying the Exclusionary Rule to Carpenter Searches

by Kevin Ganley

Note | Anti-Discrimination Law
A Glimmer of Hope for California’s “Well-Intentioned” Attempt to Put More Women in the Boardroom

by Jacqueline Concilla

Vol. 93, No. 4 (September 2020)

Article | Technology
Administering Artificial Intelligence

by Alicia Solow-Niederman

Note | Criminal Law
Guilty Beyond a Reasonable Vote: Challenging Felony Disenfranchisement Under Section 2 of the Voting Rights Act
by Jonathan Kwortek

Article | Miscellaneous
Partisan Voting on the California Supreme Court

by Mark P. Gergen, David A. Carrillo, Benjamin Minhao Chen & Kevin M. Quinn

Article | Corporate Law
The Law of Corporate Investigations and the Global Expansion of Corporate Criminal Enforcement

by Jennifer Arlen & Samuel W. Buell

Note | Constitutional Law
Apps Too: Modifying Interactive Computer Service Provider Immunity Under Section 230 of the Communications Decency Act in the Wake of “Me Too”

by Alexandra Lotty

Vol. 93, No. 5 (November 2020)

Article| Corporate Law
Corporate Law as Myth

by Jonathan R. Macey

Article | Constitutional Law
My Car Is My Castle: the Failed Historical Roots of the Vehicle Exception to the Fourth Amendment

by Thomas J. Snyder

Note | Constitutional Law
Outsourced Censorship: A Case for Judicial Revival of the State Action Doctrine’s Encouragement Theory
by Haley Tuchman

Note | Constitutional Law
Unconstitutional or Just Bad Policy? Title IV-E’s AFDC “Lookback” and the Constitutional Guarantee of Equal Protection

by Rosie Frihart-Lusby


Vol. 92, No. 1 (November 2018)

Article | Immigration Law
A National Study of Immigration Detention in the United States
by Emily Ryo & Ian Peakcock

Article | Legal Theory
Fiduciary Loyalty, Inside and Out

by Stephen R. Galoob & Ethan J. Leib

Article | Anti-Trust Law
What’s in a Claim? Challenging Criminal Prosecutions Under the FTAIA’s Domestic Effects Exception
by Jay Kemper Simmons

Note | Constitutional Law
Quid Pro No: When Rolexes, Ferraris, and Ball Gowns Are Not Political Currency
by Daniel Brovman

Vol. 92, No. 2 (January 2019)

Article | Corporate Law
The Enduring Distinction between Business Entities and Securities Interests
by Ofer Eldar & Andrew Verstein

Article | Environmental Law
Just Transitions

by Ann M. Eisenberg

Note | Health Law
An Examination of the Right to Try Act of 2017 and Industry’s Potential Path Moving Forward
by Sylvia Zaich

Note | Litigation
From Presentation to Presence: Immersive Virtual Environments and Unfair Prejudice in the Courtroom
by Khirin Bunker

Note | Constitutional Law
Justice or Just Us?: SFFA v. Harvard and Asian Americans in Affirmative Action
by Cynthia Chiu

Vol. 92, No. 3 (March 2019)

Article | Litigation
Forum Selling Abroad
by​ Stefan Bechtold, Jens Frankenreiter & Daniel Klerman

Article | Constitutional Law
California Constitutional Law: Direct Democracy

by David A. Carrillo, Stephen M. Duvernay, Benjamin Gevercer & Meghan Fenzel

Article | Corporate Law
Regulating Bankruptcy Bonuses
by Jared A. Ellias

Note | Intellectual Property Law
Patently Unjust: Tribal Sovereign Immunity at the U.S. Patent Office
by Christopher B. Phillips

Vol. 92, No. 4 (May 2019)

Introduction | Summary
Introduction to the Symposium on Convergence and Divergence in Private Law
by​ Yun-chien Chang & Richard A. Epstein

Article | Legal Theory
The Necessity of Convergence in Private Law
by Richard A. Epstein

Article | Tort Law
Convergence and Then Downstream Divergence in Torts and Other Law
by Saul Levmore

Article | Property Law
Convergence and Divergence in Systems of Property Law: Theoretical and Empirical Analyses
by Yun-chien Chang & Henry E. Smith

Article | Legal Theory
Divergence and Convergence at the Intersection of Property and Contract
by Giuseppe Dari-Mattiacci & Carmine Guerriero

Article | Contract Law
The Long Convergence: “Smart Contracts” and the “Customization”of Commercial Law
by G. Marcus Cole

ArticleTort Law
Torts and Restitution: Legal Divergence and Economic Convergence
by Robert Cooter & Ariel Porat

Article | Intellectual Property law
Institutional Design in Patent Law: Private Property Rights or Regulatory Entitlements
by​ Adam Mossoff

Article | Legal Theory
Private Law Statutory Interpretation
by​ Shyamkrishna Balganesh

Article | Contract Law
Bluffing in Business-to-Business Contract Negotiations
by​ Stefanie Jung

Article | Environmental Law
From Nuisance to Environmental Protection in Continental Europe
by​ Vanessa Casado Perez & Carlos Gomez Liguerre

Article | Legal Theory
Convergence and the Circulation of Money Judgments
by​ Aaron D. Simowitz

Article | Legal Theory
Divergence in Land Use Regulations and Property Rights
by​ Christopher Serkin

Vol. 92, No. 5 (July 2019)

Article | Tax Law
The NCAA and the IRS: Life at the Intersection of College Sports and the Federal Income Tax
by​ Richard Schmalbeck & Lawrence Zelenak

Article | Securities Law
The SEC and Regulation of Exchange-Traded Funds: A Commendable Start and a Welcome Invitation
by​ Henry T. C. Hu & John D. Morley

Note | Constitutional Law
The Wild West: Application of the Second Amendment’s Individual Right to California Firearm Legislation
by​ Forrest Brown

Note | Criminal Law
Confessions of a Teenage Defendant: Why a New Legal Rule Is Necessary to Guide the Evaluation of Juvenile Confessions
by​ Hannah Brudney

Note | Constitutional Law
Unlock Your Phone and Let Me Read All Your Personal Content, Please: The First and Fifth Amendments and Border Searches of Electronic Devices
by​ Kathryn Neubauer

Vol. 92, No. 6 (September 2019)

Article | Criminal Law
Protectors of Predators or Prey: Bystanders and Upstanders amid Sexual Crimes
by​ Zachary D. Kaufman

Article | Corporate Law
Too Big to Be Activist
by​ John D. Morley

Article | Financial Regulation
Regulating Entities and Activities: Complementary Approaches to Nonbank Systemic Risk
by​ Jeremy C. Kress, Patricia A. McCoy & Daniel Schwarcz

Article | Regulations
Binary Governance: Lessons from the GDPR’s Approach to Algorithmic Accountability
by​ Margot E. Kaminski

Article | Regulations
The New Data of Student Debt
by​ Christopher K. Odinet

Vol. 91, No. 1 (November 2017)

Article | Intellectual Property Law
Patenting Elasticities
by​ Clark D. Asay

Article | Constitutional Law
Middle-Value Speech
by​ David S. Han

Article | Bankruptcy Law
Puerto Rico and the Netherworld of Sovereign Debt Restructuring
by​ Mitu Gulati & Robert K. Rasmussen

Note | Privacy Law
Navigating the Atlantic: Understanding EU Data Privacy Compliance Amidst a Sea of Uncertainty
by​ Griffin Drake

Vol. 91, No. 2 (January 2018)

Article | Legal Theory
Is Cost-Benefit Analysis the Only Game in Town?
by​ Gregory C. Keating

Article | Anti-discrimination Law
by​ Bernadette Atuahene & Timothy R. Hodge

Note | Healthcare & Life Sciences
Statutory Millennialism: Establishment and Free Exercise Concerns Arising from the Health Care Sharing Ministry Exemption’s 1999 Cutoff Date
by​ James R. Salzmann

Note | Election Law
Persuasive or Deceptive? Native Advertising in Political Campaigns
by​ Irina Dykhne

Vol. 91, No. 3 (March 2018)

Article | Civil Rights
The Jury and Empire: The Insular Cases and the Anti-Jury Movement in the Gilded Age and Progressive Era
by​ Andrew Kent

Article | Real Property Law
Exclusionary Megacities
by​ Wendell Pritchett & Shitong Qiao

Note | Evidence
Eyewitness Identifications: Recommendations to the Third Circuit
by​ Brady Witbeck

Note | Healthcare & Life Sciences
Should Statistical Sampling Be Used to Prove Liability Under the False Claims Act in Healthcare Fraud?
by​ Milene Vega

Vol. 91, No. 4 (May 2018)

Article | Insurance Law
The Health Insurer Nudge
by​ Wendy Netter Epstein

Article | Corporate Law
The Delaware Trap: An Empirical Analysis of Incorporation Decisions
by​ Robert Anderson IV

Note | Civil Rights
Whose Bathroom Is It, Anyway?: The Legal Status of Transgender Bathroom Access Under Federal Employment Law
by​ Allison Bader

Note | Constitutional Law
“Moore” Than Just a Number: Why IQ Cutoffs Are an Unconstitutional Measure for Determining Intellectual Disability
by​ Courtney Johnson

Vol. 91, No. 5 (July 2018)

Article | Employment Law
Unbundling Freedom in the Sharing Economy
by​ Deepa Das Acevedo

Article | Regulations
A Regulatory Framework for Exchange-Traded Funds
by​ Henry T. C. Hu & John D. Morley

Note | Antitrust Law
Friendly Skies or Turbulent Skies: An Evaluation of the U.S. Airline Industry and Antitrust Concerns
by​ Kevin Kinder

Note | Criminal Law
An Impossible Standard: The California Parole Board Process for Inmates with Cognitive Impairments
by​ Amber Heron

Vol. 90, No. 1 (November 2016)

Postscript | Constitutional Law
Sex, Videos, and Insurance: How Gawker Could Have Avoided Financial Responsibility for the $140 Million Hulk Hogan Sex Tape Verdict
by​ Christopher C. French

Article | Constitutional Law
Making Sense of Legislative Standing
by​ Matthew I. Hall

Note | Constitutional Law
(Un)reasonable Religious Accommodation: The Argument For an “Essential Functions” Provision Under Title VII
by​ Laura E. Watson

Note | Constitutional Law
Stateless in the United States: The United Nations’ Efforts to End Statelessness and American Gender Discrimination in Lynch v. Morales-Santana
by​ Rick Zou

Vol. 90, No. 2 (January 2017)

Article | Criminal Law
Mass Monitoring
by​ Avlana K. Eisenberg

Article | Immigration Law
Removal in the Shadows of Immigration Court
by​ Jennifer Lee Koh

Article | Constitutional Law
Prosecutorial Constitutionalism
by​ Eric S. Fish

Note | Constitutional Law
Get a Warrant: A Bright-Line Rule for Digital Searches Under the Private-Search Doctrine
by​ Dylan Bonfigli

Note | Criminal Law
Juvenile Justice: Searching for a Flexible Alternative to the Strict and Over-Inclusive Transfer System for Serious Juvenile Offenders
by​ Thuc Vy H. Nguyen

Vol. 90, No. 3 (March 2017)

Article | Administrative Law
Regulatory Entrepreneurship
by​ Elizabeth Pollman & Jordan M. Barry

Article | Tax Law
The Timing of Tax Transparency
by​ Joshua D. Blank

Article | Intellectual Property Law
The Law of Look and Feel
by​ Peter Lee & Madhavi Sunder

Article | Tax Law
Capital Taxation in an Age of Inequality
by​ Edward D. Kleinbard

Note | Constitutional Law
Life is Short. Go to Court: Establishing Article III Standing in Data Breach Cases
by​ Megan Dowty

Note | Environmental Law
Easy Come, Easy Go: A Guide to California Cap-and-Trade Spending
by​ Jonathan Kintzele

Postscript | Technology
Strategic Law Avoidance Using the Internet: A Short History
by​ Tim Wu

Vol. 90, No. 4 (May 2017)

Article | Family Law
Early Childhood Development and the Law
by​ Clare Huntington

Article | Tax Law
Uncapping Executive Pay
by​ Michael Doran

Note | Securities Law
Home Court Advantage? The SEC and Administrative Fairness
by​ Kenneth Oshita

Note | International Law
Preserving International Comity: The Foreign Sovereign Immunities Act of 1976 and OBB Personenverkehr AG v. Sachs
by​ Jason E. Myers

Vol. 90, No. 5 (July 2017)

Article | Constitutional Law
The Second Amendment and Private Law
by​ Cody Jacobs

Article | Bankruptcy Law
“No Money Down” Bankruptcy
by​ Pamela Foohey, Robert M. Lawless, Katherine Porter & Deborah Thorne

Article | Immigration Law
Fostering Legal Cynicism Through Immigration Detention
by​ Emily Ryo

Note | Privacy Law
An Ocean Apart: The Transatlantic Data Privacy Divide and the Right to Erasure
by​ Paul J. Watanabe

Vol. 90, No. 6 (September 2017)

Article | Tax Law
The Income Equality Case for Eliminating the Estate Tax
by​ David J. Herzig

Article | Tort Law
Tort Reform Through the Back Door: A Critique of Law and Apologies
by​ Yonathan A. Arbel & Yotam Kaplan

Article | Election Law
The Geography of Campaign Finance Law
by​ David Fontana

Note | Copyright Law
Transforming the Fair Use Landscape by Defining the Transformative Factor
by​ Laurie Tomassian

Vol. 89, No. 1 (November 2015)

Note | Administrative Law
Controlling Supergraphics: A New Challenge Facing Local Governments Aiming to Limit the Spread of Advertising and Prevent Visual Bight
by​ Lauren Glaser

Note | Administrative Law
The Clash: Squaring Mandatory Arbitration with Administrative Agency and Representative Recourse
by​ Maureen A. Weston

Article | Constitutional Law
Eighth Amendment Presumptions: A Constitutional Framework for Curbing Mass Incarceration
by​ William E. Berry III

Article | Constitutional Law
The New Qualified Immunity
by​ Aaron L. Nielson & Christopher J. Walker

Vol. 89, No. 2 (January 2016)

Article | Tax Law
Citizen Taxation
by​ Ruth Mason

Note | Tort Law
Risk, Reward, and Responsibility: A Call to Hold UberX, Lyft, and Other Transportation Network Companies Vicariously Liable for the Acts of Their Drivers
by​ Lauren Geisser

Article | Civil Procedure
Forum Selling
by​ Daniel Klerman and Greg Reilly

Vol. 89, No. 3 (March 2016)

Article | Constitutional Law
Continuity and the Declaration of Independence
by​ Darrel A. H. Miller

Article | Constitutional Law
Originalism’s Subject Matter: Why the Declaration of Independence Is Not Part of the Constitution
by​ Lee J. Strang

Article | Constitutional Law
Historical Versus Iconic Meaning: The Declaration, the Constitution, and the Interpreter’s Dilemma
by​ Daniel Farber

Article | Immigration Law
Independence and Immigration
by​ Amanda Frost

Article | Constitutional Law
To Alter or Abolish
by​ Jack M. Balkin & Sanford Levinson

Article | Constitutional Law
The Declaration of Independence as Bellwether
by​ Katie R. Eyer

Article | Constitutional Law
The Ghost of the Declaration Present: The Legal Force of the Declaration of Independence Regarding Acts of Congress
by​ Frank I. Michelman

Note | Criminal Law
Can Henderson or Lawson Repair the Golden State’s Less-Than-Golden Treatment of Eyewitness Identification Reform? A Call for Judicial Intervention in California
by​ Morgan Schwartz

Note | Inellectual Property Law
Mouse v. Mau5: Implications of the Morehouse Defense in International Trademark Disputes
by​ Zachary Lainer

Article | Constitutional Law
The Declaration of Independence as Introduction to the Constitution
by​ Alexander Tsesis

Article | Constitutional Law
Why the Declaration of Independence Is Not Law–And Why It Could Be
by​ Frederick Schauer

Article | Constitutional Law
The Declaration of Independence and Constitutional Interpretation
by​ Alexander Tsesis

Article | Constitutional Law
The Declaration of Independence and Contemporary Constitutional Pedagogy
by​ Mark Graber

Article | Constitutional Law
Between the States and the Signers: The Politics of the Declaration of Independence Before the Civil War
by​ Bernadette Meyler

Vol. 89, No. 4 (May 2016)

Article | Administrative Law
Strategic Rulemaking Disclosure
by​ Jennifer Nou & Edward H. Stiglitz

Article | Intellectual Property Law
Opening the Patent System Diffusionary Levers in Patent Law
by​ Colleen V. Chien

Article | Administrative Law
Free Trade Through Regulation?
by​ David Zaring

Note | Intellectual Property Law
Clear Skies Ahead: Why the Supreme Court’s Decision in Aereo Should Have Limited Copyright Implications on Cloud Technology
by​ Mark Cikowski

Note | Election Law
We Are Not Interested: How Dominant Political Parties Use Campaign Finance Law to Lock Interest Groups and Third Parties Out of the System
by​ Rowley Rice

Vol. 89, No. 5 (July 2016)

Article | Constitutional Law
The Harm Principle and Free Speech
by​ Rebecca L. Brown

Article | Civil Rights
What Diversity Contributes to Equal Opportunity
by​ Stephen M. Rich

Note | Privacy Law
Secrecy, Standing, and Executive Order 12,333
by​ Charlotte J. Wen

Note | Criminal Law
How Vague is too Vague?: Resurrecting the Void-for-Vagueness Doctrine in the Context of the Armed Career Criminal Act
by​ Ava Miller

Vol. 89, No. 6 (September 2016)

Article | Corporate Law
Quieting the Shareholders Voice: Empirical Evidence of Pervasive Bundling in Proxy Solicitations
by​ James D. Cox, Fabrizio Ferri, Colleen Honigsberg & Randall S. Thomas

Article | Corporate Law
The Soviet Constitution Problem in Comparative Corporate Law: Testing the Proposition that European Corporate Law is More Stockholder Focused than U.S. Corporate Law
by​ Chief Justice Leo E. Strine, Jr.

Note | Constitutional Law
Redressing the Legal Stigmatization of American Samoans
by​ Joseph E. Sung

Note | Constitutional Law
Packing Heat: Judicial Review of Concealed Carry Laws Under the Second Amendment
by​ Kevin Behne


Vol. 88, No. 1 (November 2014)

What’s Wrong with Law Firms? A Corporate Finance Solution to Law Firm Short-Termism
Article by Jonathan T. Molot

A Theory of Republican Perogative
Article by Julian Davis Mortenson

Cy Pres in Class Action Settlements
Article by Rhonda Wasserman

“McDonald Does Dallas”: How Obscenity Laws on Hard-Core Pornography Can End the Nation’s Gun Debate
Note by John Korevec

Human Trafficking and U.S. Asylum: Embracing the Seventh Circuit’s Approach
Note by Kelsey M. McGregor

Narrow Banking as a Structural Remedy for the Problem of Systemic Risk: A Comment on Professor Schwarcz’s Ring-Fencing
Postscript (Comment) by Arthur E. Wilmarth, Jr.

Ring-Fencing and Its Alternatives
Postscript (Response) by David Zaring

Vol. 88, No. 2 (January 2015)

Drugs and Violence
Article by Shima Baradaran

Stereotype Threat and Antidiscrimination Law: Affirmative Steps to Promote Meritocracy and Racial Equality in Education
Article by Sam Erman & Gregory M. Walton

The Reasonableness of a Race-Based Suspicion: The Fourth Amendment and the Costs and Benefits of Racial Profiling in Immigration Enforcement
Note by Christian Briggs

The Untold Story of the State Filibuster: The History and Potential of a Neglected Parliamentary Device
Note by Kyle Grossman

The New York Safe Act: A Thoughtful Approach to Gun Control, or a Politically Expedient Response to the Public’s Fear of the Mentally Ill?
Postscript (Note) by Matthew Gamsin

Vol. 88, No. 3 (March 2015)

Religious Exemptions, Stating Culture: Foreword to Religious Accommodations in the Age of Civil Rights
Article by Martha Minow

Why “Live-And-Let-Live” is not a Viable Solution to the Difficult Problems of Religious Accommodation in the Age of Sexual Civil Rights
Article by Mary Anne Case

Religious Accommodations and – and among – Civil Rights: Separation, Toleration, and Accommodation
Article by Richard W. Garnett

Accommodating Empire: Comparing French and American Paths to the Legalization of Gay Marriage
Article by Malick W. Ghachem

Religious Institutionalism, Implied Consent, and the Value of Voluntarism
Article by Michael A. Helfand

A Confident Pluralism
Article by John D. Inazu

Gay Rights, Religious Accommodations, and the Purposes of Antidiscrimination Law
Article by Andrew Koppelman

Accommodating Nonmarriage
Article by Melissa Murray

Die and Let Live? The Asymmetry of Accommodation
Article by Steven D. Smith

It’s About Money: The Fundamental Contradiction of Hobby Lobby
Article by Nomi Maya Stolzenberg

The Modern Mac: Allocating Deal Risk In the Post-IBP v. Tyson World
Note by Bryan Monson

Vol. 88, No. 4 (May 2015)

Is California Committed?: Why California Should Take Action to Address the Shortcomings of its Assisted Outpatient Commitment Statute
Note by Andrea Reynoso

From Jitneys to App-Based Ridesharing: California’s “Third Way” Approach to Ride-For-Hire Regulation
Note by Ravi Mahesh

Runaway Preemption: The Reckless Doctrine of Pliva and Mutual Pharmaceutical
Note by Michael E. Bowlus

Article by Joshua A. T. Fairfield

The Stamp Act and the Political Origins of American Legal and Economic Institutions
Article by Justin DuRivage & Claire Priest

Vol. 88, No. 5 (July 2015)

Defending Data
Article by Pamela Metzger & Andrew Guthrie Ferguson

Narratives of Cultural Collision and Racial Oppression: How to Reconcile Theories of a Cultural Defense and Rotten Social Background Defense to Best Serve Criminal Defendants
Note by Sierra Villaran

To Plead or Not to Plead: Whether to Bring a Reverse Passing Off Claim in the Post Dastar Era of Lanham Act § 43(A) Litigation
Note by Diana Wade

Using California State Anti-Discrimination Law to Combat the Overuse of School Suspensions
Note by Allison Fisher

Sensitive Information
Article by Paul Ohm

“Fair, Reasonable, and Adequate” According to Who? Cy Pres Distributions That Result in Cheap Settlements and Generous Attorney Fees, but No Financial Benefit to Class Members
Postscript (Response) by Linda Sandstrom Simard

Vol. 88, No. 6 (September 2015)

Sting Victims: Third-Party Harms in Undercover Police Operations
Article by Elizabeth E. Joh & Thomas W. Joo

The Prohibition of Chemical Weapons: Moving Toward Jus Cogens Status
Article by Charles Hyun

Limping Toward Decriminalization: The Case Act, De Facto Decriminalization of Domestic Minor Sex Trafficking Victims, and 2-Way CCTV
Note by Alyssa N. Daniels

Negative Identity
Article by Nancy Leong

Miller v. Alabama: A Proposed Solution for a Court that Feels Strongly Both Ways
Note by Liza Little


Vol. 87, No. 1 (November 2013)

The Defibrillation of NOTA: How Establishing Federal Regulation of Waitlist Eligibility May Save Organ Transplant Patients with Disabilities from Flat-Lining 
Note by Danielle Richards

Disapproving Death: Amending the Interstate Agreement on Detainers in Light of United States v. Pleau
Notee by John Jason Kreager

Article by Steven L. Schwarcz

Privacy, the Hacker Way
Article by Andrea M. Matwyshyn

Vol. 87, No. 2 (January 2014)

(D)evolving Standards of Decency: The Unworkability of Current Eighth Amendment Jurisprudence as Illustrated by Kosilek v. Spencer 
Note by Rachael Rezabek

Performance-Enhancing Drugs in Boxing: Preventing the Sweet Science from Becoming Chemical Warfare 
Note by Jonathan H. Koh

Innovation and Incarceration: An Economic Analysis of Criminal Intellectual Property Law 
Article by Christopher Buccafusco & Jonathan S. Masur

Understanding Insurance Antidiscrimination Laws 
Article by Ronen Avraham, Kyle D. Logue, & Daniel Schwarcz

Vol. 87, No. 3 (March 2014)

Accuracy in Sentencing 
Article by Brandon L. Garrett

Criminal Law at the Crossroads: Turn to Accuracy 
Article by Dan Simon

Meanings and Measures of Recidivism 
Article by Robert Weisberg

Lessons for Law Reform from the American Experiment with Capital Punishment
Article by Carol S. Steiker & Jordan M. Steiker 

You Can Touch, But You Can’t Look: Examining the Inconsistencies in Our Age of Consent and Child Pornography Laws 
Note by MacKenzie Smith

Lessons from Inquisitorialism
Article by Christopher Slobogin

Framing the Prosecution 
Article by Daniel Richman

The Mismatch Between Twenty-First-Century Forensic Evidence and Our Antiquated Criminal Justice System 
Article by Erin Murphy

Revisiting the T.J. Hooper: Stating What is Constitutionally Required of Defense Attorneys Under the Strickland Evaluation of Attorney Performance 
Note by Lauren McGrory Johnson

Correcting Criminal Justice Through Collective Experience Rigorously Examined 
Article by James S. Liebman & David Mattern

Searching for Injustice: The Challenge of Postconviction Discovery, Investigation, and Litigation  
Article by Laurie L. Levenson

Does Liberal Procedure Cause Punitive Substance? Preliminary Evidence from Some Natural Experiments  
Article by Donald A. Dripps

Vol. 87, No. 4 (May 2014)

The Attrition of Rights Under Parole
Article by Tonja Jacobi, Song Richardson, & Gregory Barr

The Capture of International Intellectual Property Law Through The U.S. Trade Regime
Article by Margot E. Kaminski

The End to an Era of Neglect: The Need for Effective Protection of Trademark Licenses
Note by Kayvan Ghaffari

Enabling Class Litigation as an Approach to Regulating For-Profit Colleges
Note by Blake Shinoda

Vol. 87, No. 5 (July 2014)

Are Damages Different?:Bivens and National Security 
Article by Andrew Kent

A Matter of Perspective: Textualism, Stare Decisis, and Federal Employment Discrimination Law 
Article by Stephen M. Rich

Prayer for Relief: Anti-Muslim Discrimination as Racial Discrimination 
Note by Romtin Parvaresh

Seeing Red, Spending Green: The Costly Process of Registering and Defending Color Trademarks 
Note by Lauren Traina

Vol. 87, No. 6 (September 2014)

Shareholder Voting in an Age of Intermediary Capitalism 
Article by Paul H. Edelman, Randall S. Thomas & Robert B. Thompson

Letting Congress Vote: Judicial Review of Arbitrary Legislative Inaction 
Article by Michael J. Teter

The Right to a Complete Defense: A Special Brady Rule in Capital Cases 
Note by Scott Hardy

“The Dustbin of Quackery”? Senate Bill 1172 and the Legal Implications of Banning Reparative Therapy for Homosexual Minors 
Note by Marlena McMurchie


Vol. 86, No. 1 (November 2012)

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

Vol. 86, No. 2 (January 2013)

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

Vol. 86, No. 3 (March 2013)

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

Vol. 86, No. 4 (May 2013)

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

Vol. 86, No. 5 (July 2013)

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

Vol. 86, No. 6 (September 2013)

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


Vol. 85, No. 1 (November 2011)

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

Vol. 85, No. 2 (January 2012)

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

Vol. 85, No. 3 (March 2012)

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

Isn’t This Where We Came in?: An Examination of the Turbulent History and Divergent Economics Underlying Section 36(b) of the Investment Company Act of 1940 and a Proposal to Finally Put the Law to Use 
Note by John Baumann

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

Vol. 85, No. 4 (May 2012)

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

Vol. 85, No. 5 (July 2012)

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 

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


Vol. 84, No. 1 (November 2010)

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

Vol. 84, No. 2 (January 2011)

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

Vol. 84, No. 3 (March 2011)

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

Vol. 84, No. 4 (May 2011)

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

Vol. 84, No. 5 (July 2011)

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

Vol. 84, No. 6 (September 2011)

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


Vol. 83, No. 1 (November 2009)

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

Vol. 83, No. 2 (January 2010)

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

Vol. 83, No. 3 (March 2010)

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

Vol. 83, No. 4 (May 2010)

“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

Vol. 83, No. 5 (July 2010)

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

Vol. 83, No. 6 (September 2010)

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


Vol. 82, No. 1 (November 2008)

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

Vol. 82, No. 2 (January 2009)

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

Vol. 82, No. 3 (March 2009)

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

Vol. 82, No. 4 (May 2009)

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

Vol. 82, No. 5 (July 2009)

“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

Vol. 82, No. 6 (September 2009)

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


Vol. 81, No. 1 (November 2007)

Intuitions of Justice: Implications for Criminal Law and Justice Policy 
Article by Paul H. Robinson & John M. Darley

Rebuilding Illinois Brick: A Functionalist Approach to the Indirect Purchaser Rule 
Article by Barak D. Richman & Christopher R. Murray

Looking Behind the Curtain: Applying Title III of the Americans with Disabilities Act to Businesses Behind Commercial Websites
Note by Kenneth Kronstadt

No More Playing Favorites: Reconsidering the Conclusive Congressional Presumption that Intercollegiate Athletics are Substantially Related to Educational Purposes 
Note by Gabriel Morgan

Would Californians Have the Courage of Their Convictions in the Face of a Fully Functioning Death Penalty? 
Postscript (Response) by Jean Rosenbluth

Response to Courage of Their Convictions 
Postscript (Response) by Yael V. Levy

Arnold, Digital Media, and the Resurrection of Boyd 
Postscript (Comment) by Brian M. Hoffstadt

Vol. 81, No. 2 (January 2008)

Event Jurisdiction and Protective Coordination: Lessons from the September 11th Litigation 
Report by Robin J. Effron

Punitive Damages, Retribution, and Due Process 
Article by Mark A. Geistfeld

Turbulence in the Airline Industry: Rethinking America’s Foreign Ownership Restrictions 
Note by Josh Cavinato

Balancing the Scales: Expanding the Family Movie Act to Protect Consumers After Clean Flicks of Colorado, LLC v. Soderbergh 
Note by Joel M. Purles

Vol. 81, No. 3 (March 2008)

The Other Delegate: Judicially Administered Statutes and the Nondelegation Doctrine 
Article by Margaret H. Lemos

On the Commander in Chief Power 
Article by David Luban

Unreasonably Wrong: The Supreme Court’s Supremacy, the AEDPA Standard, and Carey v. Musladin 
Note by Padraic Foran

Effecting the Impossible: An Argument Against Tax Strategy Patents 
Note by Michael Moulton

Vol. 81, No. 4 (May 2008)

Duty Wars
Article by W. Jonathan Cardi & Michael D. Green

Trading Votes for Reasoning: Covering in Judicial Opinions 
Article by Stephen J. Choi & G. Mitu Gulati

Protecting Privacy Expectations and Personal Documents in SEC Investigations 
Note by Abraham Tabaie

Brown v. Kamehameha Schools: An Instrumental Critique of Remedial Self-Segregation in Private Education 
Note by Donald A. Thompson

Vol. 81, No. 5 (July 2008)

Carhart, Constitutional Rights, and the Psychology of Regret 
Article by Chris Guthrie

Climate Change: The China Problem 
Article by Michael P. Vandenbergh

Cyber Crime 2.0: An Argument to Update the United States Criminal Code to Reflect the Changing Nature of Cyber Crime 
Note by Charlotte Decker

Law in an Elevator: When Leveling Down Remedies Let Equality Off in the Basement 
Note by Jean Marie Doherty

Vol. 81, No. 6 (September 2008)

Corporate Law Preemption in an Age of Global Capital Markets 
Article by Chris Brummer

The Right Not to Be a Genetic Parent? 
Article by I. Glenn Cohen

What History Teaches Us About Copyright Injunctions and the Inadequate-Remedy-At-Law Requirement 
Article by H. Tomás Gómez-Arostegui

The Unabomber Strikes Again: An Investigation into Whether the Victim and Witness Protection Act of 1982 Violates the First Amendment or Conflicts with the Copyright Act of 1976 
Note by Michael B. Norman

Postpetition Interest on Unsecured Claims in the Case of a Solvent Debtor: Toward a More Consistent Statutory Regime 
Note by Alexander F. Porter

Vol. 80, No. 1 (November 2006)

U.S. Courts and the International Law of Expropriation: Toward a New Model for Breach of Contract 
Article by Peter Charles Choharis

Motive’s Role in Criminal Punishment 
Article by Carissa Byrne Hessick

To Agree, or Not to Agree: That Is the Question when Evaluating the Best Mode Preferences of Joint Inventors After Pannu v. Iolab Corp. 
Article by Melissa N. McDonough

A Little Help with Sharing: A Mandatory Licensing Proposal to Resolve the Unanswered Questions Surrounding Peer-to-Peer Liability for Contributory Copyright Infringement in the Wake of Grokster 
Note by Julie Zankel

Vol. 80, No. 2 (January 2007)

Reservoirs of Danger: The Evolution of Public and Private Law at the Dawn of the Information Age 
Article by Danielle Keats Citron

The Dual Path Initiative Framework 
Article by Elizabeth Garrett & Mathew D. McCubbins

An Unworkable Rule of Law: The ADA, Education, and Sovereign Immunity; An Argument for Overruling Seminole Tribe of Florida v. Florida Consistent with Stare Decisis
Note by Christopher Cowan

The Calabasas Smoking Ban: A Local Ordinance Points the Way for the Future of Environmental Tobacco Smoke Regulation
Note by Jordan Raphael

Vol. 80, No. 3 (March 2007)

Beyond Conspiracy? Anticipating Prosecution and the Challenge of Unaffiliated Terrorism 
Article by Robert M. Chesney

Transnational Labor Citizenship 
Article by Jennifer Gordon

The Researcher’s Second Laboratory: Protecting Our Children from Social Surveys in Public Schools in Light of Fields v. Palmdale School District 
Note by Jesse Fu

The Presses Won’t Stop Just Yet: Shaping Student Speech Rights in the Wake of Hazelwood’s Application to Colleges 
Note by Jeff Sklar

Vol. 80, No. 4 (May 2007)

Remedies for California’s Death Row Deadlock 
Article by Judge Arthur L. Alarcón

“Climate Change – The New “Superwhale” in the Room: International Whaling and Climate Change Politics – Too Much in Common? 
Article by Cinnamon Carlarne

A Political Process Theory of Judicial Review Under the Religion Clauses 
Note by Carlton Morse

Abolishing the Pharmacist’s Veto: An Argument in Support of a Wrongful Conception Cause of Action Against Pharmacists Whose to Provide Emergency Contraception 
Note by Heather A. Weisser

Vol. 80, No. 5 (July 2007)

Dispossession, Intellectual Property, and the Sin of Theoretical Homogeneity
Article by Brian M. Hoffstadt

Sampling Evidence at the Crossroads 
Article by Laurens Walker & John Monahan

Torts v. Contracts: Can Microsoft Be Held Liable to Home Consumers for Its Security Flaws? 
Article by Emily Kuwahara

Room Enough for the Do-Gooders: Corporate Social Accountability and the Sherman Act 
Note by Sarah Rackoff

Gerontology and the Law: A Selected Annotated Bibliography: 2002-2005 Update 
Bibliography by Paul J. Moorman & Jessica Wimer

Vol. 80, No. 6 (September 2007)

Global Legal Pluralism 
Article by Paul Berman

Markets as Regulators: A Survey 
Article by Stavros Gadinis & Howell E. Jackson

Inkblots: How the Ninth Amendment and the Privileges or Immunities Clause Protect Unenumerated Constitutional Rights 
Note by Kyle Alexander Casazza

Policing State Testing Under No Child Left Behind: Encouraging Students with Disabilities to Blow the Whistle on Unscrupulous Educators 
Note by Richard C. Herrera

Vol. 79, No.1 (November 2005)

Rethinking Rights in Biospace
Article by Robin Feldman

A Jeffersonian Republic by Hamiltonian Means: Values, Constraints, and Finance in the Design of a Comprehensive and Contemporary American “Ownership Society” 
Article by Robert Hockett

Judging the Three-Judge Panel: An Evaluation of California’s Proposed Redistricting Commission 
Note by Nicholas D. Mosich

The Price of Silence: The Prosecution of Domestic Violence Cases in Light of Crawford v. Washington
Note by Jeanine Percival

Vol. 79, No. 2 (January 2006)

Abusing “Duty”
Article by Dilan A. Esper & Gregory C. Keating

Shielding Duty: How Attending to Assumption of Risk, Attractive Nuisance, and Other “Quaint” Doctrines Can Improve Decisionmaking in Negligence Cases
Article by John C.P. Goldberg & Benjamin C. Zipursky

When Churches Fail: The Diocesan Debtor Dilemmas 
Article by Jonathan C. Lipson

Social Ties in the Boardroom: Changing the Definition of Director Independence to Eliminate “Rubber-Stamping” Board
Note by Rachel A. Fink

Partial Preemption Under the Health Insurance Portability and Accountability Act
Note by Grace Ko

Vol. 79, No. 3 (March 2006)

Resolving the Problem of Performer Health and Safety in the Adult Film Industry
Note by Maria de Cesare

Dealing in Debt: The High-Stakes World of Debt Collection After FDCPA
Note by Lauren Goldberg

Wireless Telecommunications: Spectrum as a Critical Resource
Article by Gerald R. Faulhabe

Municipal Wireless Broadband: Hype or Harbinger?
Article by Sharon E. Gillett

Advanced Wireless Technologies and Public Policy
Article by Thomas W. Hazlett & Matthew L. Spitzer

Vol. 79, No. 4 (May 2006)

Legislative Arrogance and Constitutional Accountability
Article by Caitlin E. Borgmann

The New Vote Buying: Empty Voting and Hidden (Morphable) Ownership
Article by Henry T.C. Hu & Bernard Black

Closing a Resentencing Loophole: A Proposal to Amend 28 U.S.C. § 2255
Note by Julie Austin

The Right of Publicity vs. the First Amendment: Will One Test Ever Capture the Starring Role?
Note by Gloria Franke

Vol. 79, No. 5 (July 2006)

Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson
Article by Justin Hughes

Due Process and Punitive Damages: The Error of Federal Excessiveness Jurisprudence
Article by A. Benjamin Spencer

Waiting for Watergate: The Long Road to FEC Reform
Note by Lauren Eber

Controlling Our Borders Through Enhanced Employer Sanctions
Note by Jeffrey L. Ehrenpreis

Vol. 79, No. 6 (September 2006)

The Cul De Sac of Race Preference Discourse
Article by Christopher A. Bracey

Executive Federalism: Forging New Federalist Constraints on the Treaty Power
Article by Duncan B. Hollis

Laughter at the Court: The Supreme Court as a Source of Humor
Article by Laura Krugman Ray

Pacifica is Dead. Long Live Pacifica: Formulating a New Argument Structure to Reserve Government Regulation of Indecent Broadcasts
Note by Joshua B. Gordon

(Re)Constitutionalizing Confrontation: Reexamining Unavailability and the Value of Live Testimony
Note by Raymond LaMagna

Vol. 78, No. 1 (November 2004)

Choosing the Next Supreme Court Justice: An Empirical Ranking of Judge Performance 
Article by Stephen J. Choi & G. Mitu Gulati

Out of Joint: Replacing Joint Representations with Lawyer-Mediation in Friendly Divorces 
Note by Avi Braz

E-nuisance: Unsolicited Bulk E-mail at the Boundaries of Common Law Property Rights 
Note by Jeremiah Kelman

Tribute: A Tribute to Professor David Carroll 
Article by Arthur Berney, Stephen J. Morse, Michael H. Shapiro, Matthew Spitzer, Stephen H. Turner & Charles D. Weisselberg

Procedural Justice 
Article by Lawrence B. Solum

Be Careful What You Wish For: Problem with Using Empirical Rankings to Select Supreme Court Justices 
Article by William P. Marshall

Judging Merit
Article by Patrick S. Shin

On Tournaments for Appointing Great Justices to the U.S. Supreme Court 
Article by WERL

Vol. 78, No. 2 (January 2005)

Constitutionalism in the Streets 
Article by Gary D. Rowe

On Software Regulation
Article by R. Polk Wagner

Corporate Inversions: A Symptom of a Larger Problem, the Corporate Income Tax 
Note by James Mann

Free the Music: Rethinking the Role of Copyright in an Age of Digital Distribution 
Note by David Nelson

Vol. 78, No. 3 (March 2005)

Paying For Politics  
Article by John M. de Figueiredo & Elizabeth Garrett

Architectural Censorship and the FCC 
Article by Christopher S. Yoo

Media Structure, Ownership Policy, and the First Amendment
Commentary by C. Edwin Baker 

Pleading Around the Private Securities Litigation Reform Act: Reevaluating the Pleading Requirements for Market Manipulation Claims 
Note by Damian Moos

Doin’ Time in God’s House: Why Faith-Based Rehabilitation Programs Violate the Establishment Clause 
Note by Douglas Roy

Vol. 78, No. 4 (May 2005)

Voting with Your Hands: Direct Democracy in Annexation 
Article by Clayton P. Gillette

Rethinking the Unconstitutionality of Contribution and Expenditure Limits in Ballot Measure Campaigns 
Article by Richard L. Hasen

Social Choice, Crypto-Initiatives, and Policymaking by Direct Democracy
Article by Thad Kousser & Mathew D. McCubbins

The Effectiveness of Money in Ballot Measure Campaigns
Article by Thomas Stratmann

Voting, Annexation, and Metropolitan Structure: A Comment on Gillette 
Commentary by William A. Fischel

Comments on Gillette, “Voting with Your Hands: Direct Democracy in Annexation”
Commentary by Jan K. Brueckner

Contribution and Spending Limits for Initiatives or Other Ballot Propositions: What Evidence is Needed to Justify a Particular Regulatory Regime?
Commentary by Bernard Grofman

The Empirics of Campaign Finance 
Commentary by Daniel R. Ortiz

Crypto-Initiatives in Hybrid Democracy 
Commentary by Elizabeth Garrett

How Much Does Money Matter in Direct Democracy? 
Commentary by John M. de Figueiredo

Federal Funding of Human Embryonic Stem Cell Research: An Institutional Examination 
Note by Ryan Fujikawa

Regulating Democracy Through Democracy: The Use of Direct Legislation in Election Law Reform 
Article by Nathaniel Persily & Melissa Cully Anderson

“Commentary on Regulating Democracy Through Democracy: The Use of Direct Legislation in Election Law Reform”
Commentary by Nolan McCarty

Vol. 78, No. 5 (July 2005)

The Deconstruction and Reconstruction of Habeas 
Article by Brian M. Hoffstadt

Judicial Deference to Agency Interpretation of Jurisdiction After Mead 
Note by Torrey A. Cope

Take My Likeness, Please: Threats to the Right of Publicity in Light of State Farm Mutual Automobile Insurance Co. v. Campbell 
Note by Hillel Michael Elkins

Conceptualizing the “Fat Tax”: The Role of Food Taxes in Developed Economies
Article by Jeff Strnad


Vol. 78, No. 6 (September 2005)

Negotiating Sex 
Article by Michelle J. Anderson

Third-Party Visitation Statutes: Why Are Some Families More Equal than Others? 
Note by Natalie Reed

California’s Inequitable Parole System: A Proposal to Reestablish Fairness
Note by Daniel Weiss

Beyond Tort: Compensating Victims of Environmental Toxic Injury
Article by Albert C. Lin

Vol. 77, No. 1 (November 2003)

A Market-Based Approach to Telecom Interconnection 
Article by David Gilo

Gatekeeper Liability 
Article by Assaf Hamdani

Was the Jury Ever Self-Informing? 
Article by Daniel Klerman

Consent by all the Governed: Reenfranchising Noncitizens as Partners in America’s Democracy 
Note by Gabriela Evia

Attacks on a Tax: An Alternative to the Earned Income Tax Credit to Remedy the Unfairness in the Payroll Tax System 
Note by Dan Seltzer

Vol. 77, No. 2 (January 2004)

Law’s Signal: A Cueing Theory of Law in Market Transition 
Article by Robert B. Ahdieh

Title VII’s Midlife Crisis: The Case of Constructive Discharge
Article by Martha Chamallas

Underground Appeal: A Sample of the Chronic Questions in Copyright Law Pertaining to the Transformative Use of Digital Music in a Civil Society 
Note by Chris Johnstone

The First Chink in the Armor? The Constitutionality of State Laws Burdening Judicial Candidates After Republican Party of Minnesota v. White 
Note by Alexandrea Haskell Young

Vol. 77, No. 3 (March 2004)

Equality Without Tiers 
Article by Suzanne B. Goldberg

Law and the Shaping of American Foreign Policy: The Twenty Years’ Crisis 
Article by Jonathan Zasloff

Mandatory Joinder: An Indirect Method for Improving Patent Quality 
Note by Edward Hsieh

Watering Down Steele v. Bulova Watch Co. to Reach E-Commerce Overseas  
Note by Anna R. Popov

Vol. 77, No. 4 (May 2004)

Risk Regulation, Endogenous Public Concerns, and the Hormones Dispute: Nothing to Fear but Fear Itself? 
Article by Howard F. Chang 

Catastrophic Threats and the Fourth Amendment 
Article by The Honorable Ronald M. Gould and Simon Stern

Extradition of Execution? Policy Constraints in the United States’ War on Terror 
Note by James Finsten 

Getting Schooled by the Hybrid-Based Tax: Equity and Efficiency in the Federal Tax Treatment of Debt-Financed Post-Secondary Educational Expenditures 
Note by Adam Hime

Vol. 77, No. 5 (July 2004)

Too Many Markets or Too Few? Copyright Policy Toward Shared Works 
Article by Michael J. Meurer

Toward Correcting the Misapplication of Subrogation Doctrine in California Healthcare 
Note by Steven Flower

Paid Family Leave: Striking a Balance Between the Needs of Employees and Employers 
Note by Anne Wells

Resuscitating Deference to Lower Federal Court Judges Interpretations of State Law 
Note by Jonathan Remy Nash

Vol. 77, No. 6 (September 2004)

American Corporate Governance and Children: Investing in Our Future Human Capital During Turbulent Times 
Article by Marleen O’Connor-Felman

For the Birds: The Statutory Limits of the Army Corps of Engineers’ Authority over Intrastate Waters After SWANCC 
Note by Jennifer DeButts Cantrell

Toward Certainty and Uniformity in Patent Infringement Cases after Festo and Markman: A Proposal for a Specialized Patent Trial Court with a Rule of Greater Deference 
Note by Gregory J. Wallace

Categorically Biased: The Influence of Knowledge Structures on Law and Legal Theory
Article by Ronald Chen & Jon Hanson 

Vol. 76, No. 1 (November 2002)

Private Justice
Article by Pamela H. Bucy

Lurking in the Shadow: The Unseen Hand of Doctrine in Dispute Resolution
Article by Ray D. Madoff

Islamic Marriage Contracts in American Courts: Interpreting Mahr Agreements as Prenuptials and Their Effect on Muslim Women
Note by Lindsey E. Blenkhorn

Walker v. Cheney: Politics, Posturing, and Executive Privilege
Note by Jeffrey P. Carlin

Vol. 76, No. 2 (January 2003)

Making Markets: Network Effects and the Role of Law in the Creation of Strong Securities Markets 
Article by Robert B. Ahdieh

A New Direction for LLC Research in a Contractarian Legal Environment 
Article by Sandra K. Miller

Arbitration of “Public Injunctions”: Clash Between State Statutory Remedies and the Federal Arbitration Act 
Note by Thomas A. Manakides

New York’s Controversial Ethics Code Changes: An Attempt to Fit Multidisciplinary Practice Within Existing Ethical Boundaries 
Note by Laura Noroski

Vol. 76, No. 3 (March 2003)

Judicially Straight? Boy Scouts v. Dale and the Missing Scalia Dissent  
Article by Stephen Clark

Cognitive Jurisprudence
Article by Adam J. Hirsch

The Thousand Mile Journey: Taoism and Western Legal Philosophy 
Note by Eric Neigher

Gerontology and the Law: A Selected Annotated Bibliography: 1999-2001 Update
Bibliography by Diana C. Jaque, Jennifer S. Murray, & Jessica Wimer

Vol. 76, No. 4 (May 2003)

The Common Law’s Case Against Non-precedential Opinions 
Article by Richard B. Cappalli

Class and Status in American Law: Race, Interest, and the Anti-Transformation Cases 
Article by Martha R. Mahoney

Cookies and the Common Law: Are Internet Advertisers Trespassing on Our Computers? 
Article by Michael R. Siebecker

Compulsory Voting in America 
Note by Sean Matsler

Talent Agents, Personal Managers, and Their Conflicts in the New Hollywood 
Note by David Zelenski

Vol. 76, No. 5 (July 2003)

None of Your Business (Interest): The Argument for Protecting All Employee Behavior with No Business Impact 
Note by Jason Bosch

The Takings Clause As a Comparative Right 
Article by John E. Fee

Copyright Law As a Silencing Restriction on Noninfringing Materials: Unveiling the Scope of Copyright’s Diversity Externalities  
Article by Guy Pessach

Reading Zelman: The Triumph of Pluralism, and Its Effect on Liberty, Equality, and Choice  
Article by Joseph P. Viteritti

Race, Reasonableness, and the Rule of Law  
Note by Aaron Goldstein

Supplying the Tax Shelter Industry: Contingent Fee Compensation for Accountants Spurs Production  
Note by Ben Wang

 Vol. 76, No. 6 (September 2003)

Copyright Law and Free Speech After Eldred v. Ashcroft 
Article by Michael D. Birnhack

Detentions, Military Commissions, Terrorism, and Domestic Case Precedent
Article by Carl Tobias 

Through the Looking Glass: Racial Jokes, Social Context, and the Reasonable Person in Hostile Work Environment Analysis 
Note by Melissa K. Hughes 

Cognitive Jurisprudence   
Article by Adam J. Hirsch 

The Cost of Older Workers: How the ADEA Has Been Interpreted to Allow Employers to Fire Older Employees Based on Cost Concerns 
Article by Lee Franck