Southern California Law Review

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

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

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 | Anti-Discrimination Law
An Impossible Standard: The California Parole Board Process for Inmates with Cognitive Impairments
by Amber Heron

The Health Insurer Nudge
Article by Wendy Netter Epstein

The Delaware Trap: An Empirical Analysis of Incorporation Decisions
Article by Robert Anderson IV

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

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

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

Exclusionary Megacities
Article by Wendell Pritchett & Shitong Qiao

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

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

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

Stategraft
Article by Bernadette Atuahene & Timothy R. Hodge

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

Persuasive or Deceptive? Native Advertising in Political Campaigns
Note by Irina Dykhne

Patenting Elasticities
Article by Clark D. Asay

Middle-Value Speech
Article by David S. Han

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

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

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

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

The Geography of Campaign Finance Law 
Article by David Fontana

At the Intersection of Fourth and Sixth: GPS Evidence and the Constitutional Rights of Criminal Defendants 
Note by Tim Kolesk

Transforming the Fair Use Landscape by Defining the Transformative Factor
Note by Laurie Tomassian

The Second Amendment and Private Law 
Article by Cody Jacobs

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

Fostering Legal Cynicism Through Immigration Detention
Article by Emily Ryo

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

Early Childhood Development and the Law 
Article by Clare Huntington

Uncapping Executive Pay
Article by Michael Doran

Home Court Advantage? The SEC and Administrative Fairness 
Note by Kenneth Oshita

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

Regulatory Entrepreneurship 
Article by Elizabeth Pollman & Jordan M. Barry 

The Timing of Tax Transparency 
Article by Joshua D. Blank 

The Law of Look and Feel 
Article by Peter Lee & Madhavi Sunder 

Capital Taxation in an Age of Inequality 
Article by Edward D. Kleinbard 

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

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

Strategic Law Avoidance Using the Internet: A Short History 
Postscript (Response) by Tim Wu

Mass Monitoring  
Article by Avlana K. Eisenberg 

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

Prosecutorial Constitutionalism 
Article by Eric S. Fish

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

Juvenile Justice: Searching for a Flexible Alternative to the Strict and Over-Inclusive Transfer System for Serious Juvenile Offenders 
Note by Thucvy H. Nguyen

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

Making Sense of Legislative Standing 
Article by Matthew I. Hall 

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

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

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

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

Redressing the Legal Stigmatization of American Samoans 
Note by Joseph E. Sung

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

The Harm Principle and Free Speech 
Article by Rebecca L. Brown

What Diversity Contributes to Equal Opportunity 
Article by Stephen M. Rich

Secrecy, Standing, and Executive Order 12,333 
Note by Charlotte J. Wen

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

Strategic Rulemaking Disclosure
Article by Jennifer Nou and Edward H. Stiglitz

Opening the Patent System Diffusionary Levers in Patent Law 
Article by Colleen V. Chien

Free Trade Through Regulation? 
Article by David Zaring

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

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

Continuity and the Declaration of Independence 
Article by Darrel A. H. Miller

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

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

Independence and Immigration
Article by Amanda Frost

To Alter or Abolish
Article by Jack M. Balkin & Sanford Levinson

The Declaration of Independence as Bellwether
Article by Katie R. Eyer

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

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

Mouse v. Mau5: Implications of the Morehouse Defense in International Trademark Disputes
Note by Zachary Lainer

The Declaration of Independence as Introduction to the Constitution
Article by Alexander Tsesis

Why the Declaration of Independence Is Not Law—And Why It Could Be
Article by Frederick Schauer

The Declaration of Independence and Constitutional Interpretation
Article by Alexander Tsesis

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

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

Citizen Taxation
Article by Ruth Mason

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

Forum Selling
Article by Daniel Klerman and Greg Reilly

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

The Clash: Squaring Mandatory Arbitration with Administrative Agency and Representative Recourse
Article by Maureen A. Weston

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

The New Qualified Immunity
Article by Aaron L. Nielson & Christopher J. Walker

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

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

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

Bitproperty
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

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

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

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

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

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

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

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

(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

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

Ring-Fencing 
Article by Steven L. Schwarcz

Privacy, the Hacker Way
Article by Andrea M. Matwyshyn

Talking “Religious, Superstitious Nonsense” in the Classroom: When Do Teachers’ Disparaging Comments About Religion Run Afoul of the Establishment Clause? 
Note by Jennifer L. Bryant 

Bankruptcy-Remote Special Purpose Entities: An Opportunity For Investors To Maximize the Value of Their Returns While Undergoing More Careful and Realistic Risk Analysis 
Note by Katherine J. Baudistel 

Buying the Right to Harm 
Article by Ehud Guttel & Shmuel Leshem 

The Partisan Foundations of Judicial Campaign Finance 
Article by Michael S. Kang & Joanna M. Shepherd 

Essay: Official Obedience and the Politics of Defining “Law” 
Article by Frederick Schauer 

Gerontology and the Law: A Selected Annotated Bibliography: 2009-2011 Update 
Bibliography by Judy K. Davis & Karen Skinner

A Matter of Life, Death, and Children: The Patient Protection And Affordable Care Act Section 2302 and a Shifting Legal Paradigm 
Note by Ryan A. Walsh 

Breaking Bad Sentencing Habits: How State Courts’ Retroactive Modifications of Probation Terms Affect Federal Mandatory Sentencing 
Note by Andrew Tan

International Law and the Limits of Macroeconomic Cooperation 
Article by Eric A. Posner & Alan O. Sykes 

Racial Emotion in the Workplace 
Note by Tristin K. Green

A Transactional Genealogy of Scandal: From Michael Milken to Enron to Goldman Sachs  
Article by William W. Bratton & Adam J. Levitin 

The Uneasy Case Against Copyright Trolls 
Article by Shyamkrishna Balganesh 

Just Another Brown-Eyed Girl: Toward a Limited Federal Right of Publicity Under the Lanham Act in a Digital Age of Celebrity Dominance 
Note by Susannah M. Rooney

Waiving Farewell Without Saying Goodbye: The Waiver of Fiduciary Duties in Limited Liability Companies in Delware, and the Call For Mandatory Disclosure
Note by Darren Guttenberg

How Lawyers’ Intuitions Prolong Litigation 
Article by Andrew J. Wistrich & Jeffrey J. Rachlinski

Concepts of Law 
Article by Mathew D. McCubbins & Mark Turner

Cheap, Easy, or Connected: The Conditions for Creating Group Coordination 
Article by Mathew D. McCubbins, Daniel Rodriquez & Nicholas Weller

Beyond Facts and Norms: How Psychological Transparency Threatens and Restores Deliberation’s Legitimating Potential  
Article by Arthur Lupia, Yanna Kupnikov & Adam Seth Levine  

Can Legal Actors Play Equilibrium Strategies? Two Dubious Assumptions in the Game-Theoretic Analysis of the Law
Article by Daniel Enemark

The Neurobiology of Opinions: Can Judges and Juries Be Impartial? 
Article by Isabelle Brocas & Juan D. Carrillo

Farm Fishing Holes: Gaps in Federal Regulation of Offshore Aquaculture 
Note by Kristen L. Johns

The Good, the Bad, and the Ugly: The Political Economy and Unintended Consequences of Perpetual Trusts 
Note by Daniel J. Amato

Investment Company as Instrument: The Limitations of the Corporate Governance Regulatory Paradigm 
Article by Anita K. Krug 

End of the Dialogue? Political Polarization, the Supreme Court, and Congress 
Article by Richard L. Hasen

Essay: The Enduring and Universal Principle of “Fair Notice” 
Article by Theodore J. Boutros, Jr. & Blaine H. Evanson 

Proposition 9, Marsy’s Law: An Ill-Suited Ballot Initiative and the (Predictably) Unsatisfactory Results  
Note by Ryan S. Appleby

Is Financial Regulation Structurally Biased to Favor Deregulation? 
Note by Carolyn Sissoko

Killing in the Fog of War
Article by Adil Ahmad Haque 

Cyberstalking, Twitter, and the Captive Audience: A First Amendment Analysis of 18 U.S.C. 2261A(2)
Note by John B. Major

Space Torts: Applying Nuisance and Negligence to Orbital Debris 
Note by Luke Punnakanta 

Running Afoul of the Non-Refoulment Principle: The [Mis]interpretation and [Mis]application of the Particularly Serious Crime Exception 
Postscript (Note) by David Delgado

Details: Specific Facts and the First Amendment
Article by Ashutosh Bhagwat

Re: Defining Securitization 
Article by Jonathan C. Lipson 

What Is Securitization? And for What Purpose? Article by Steven L. Schwarcz 

Why (and How to) Define Securitization? A Sur-Reply to Professor Schwarcz 
Article by Jonathan C. Lipson 

Misdemeanors
Article by Alexandra Natapoff

LEEDing in the Wrong Direction: Addressing Concerns with Today’s Green Building Policy 
Note by Kaleb Keller 

The State of Treasury Regulatory Authority After Mayo Foundation: Arguing for an Intentionalist Approach at Chevron Step One 
Note by Joana Que 

Our Broken Misdemeanor Justice System: Its Problems and Some Potential Solutions 
Postscript (Response) by Eve Brensike Primus 

Bulk Misdemeanor Justice 
Postscript (Response) by Stephanos Bibas 

Misdemeanor Injustice and the Crisis of Mass Incarceration 
Postscript (Response) by Jonathan Simon

Pay for Regulator Performance
Article by M. Todd Henderson & Frederick Tung

The Rise of U.S. Food Sustainability Litigation 
Article by Stephanie Tai 

Who Owns Your Skin: Intellectual Property Law and Norms Among Tattoo Artists 
Note by Matthew Beasley 

Espionage 2.0: Protecting Human Intelligence Sources in the Digital Age 
Note by Kimberley A. Church

Antitrust Energy 
Article by Barak Orbach & D. Daniel Sokol 

Antitrust and Business History
Article by Margaret C. Levenstein 

The “Hub-and-Spoke” Conspiracy that Created the Standard Oil Monopoly 
Article by Benjamin Klein 

Rethinking the Economic Basis of the Standard Oil Refining Monopoly: Dominance Against Competing Cartels 
Article by George L. Priest

Were Standard Oil’s Rebates and Drawbacks Cost Justified?
Article by Daniel A. Crane

Revisiting the Revisionist History of Standard Oil 
Article by Christopher R. Leslie

The Antitrust Curse of Bigness 
Article by Barak Orbach & Grace Campbell Rebling

Standard Oil and U.S. Steel: Predation and Collusion in the Law of Monopolization and Mergers 
Article by William H. Page

The Strategic Use of Public and Private Litigation in Antitrust as Business Strategy 
Article by D. Daniel Sokol

Moving Beyond Caricature and Characterization: The Modern Rule of Reason in Practice 
Article by Andrew I. Gavil

Standard Oil as Lochner’s Trojan Horse 
Article by Alan J. Meese

Remedies for Monopolization from Standard Oil to Microsoft and Intel: The Changing Nature of Monopoly Law from Elimination of Market Power to Regulation of Its Use 
Article by Peter C. Carstensen

The Long Shadow of Standard Oil: Policy, Petroleum, and Politics at the Federal Trade Commission 
Article by Timothy J. Muris & Bilal K. Sayyed

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

Process over Structure: An Organizational Behavior Approach to Improving Corporate Boards 
Article by Nicola Faith Sharpe

Examining Empathy: Discrimination, Experience, and Judicial Decisionmaking 
Article by Jill Weinberg & Laura Beth Nielsen 

Essays: Second Amendment Penumbras: Some Preliminary Observations 
Article by Glenn Harlan Reynolds 

Taxing Youth: Health Care Reform Writes a Costly Prescription that Leaves the Young and Healthy Paying the Bill 
Note by Charles P. Litchfield

Psychotropic Medication and Foster Care Children: A Prescription for State Oversight 
Note by Michelle L. Mello

The Media that Need Citizens: The First Amendment and the Fifth Estate 
Article by Adam Cohen

Inside the Border, Outside the Law: Undocumented Immigrants and the Fourth Amendment 
Article by D. Carolina Nuñez 

Closing a Loophole: Headley V. Church of Scientology International as an Argument for Placing Limits on the Ministerial Exception from Clergy Disputes 
Note by Molly A. Gerratt

Graffiti and the Constitution: A First Amendment Analysis of the Los Angeles Tagging Crew Injunction 
Note by Kelly P. Welch

From Bombs and Bullets to Botnets and Bytes: Cyber War and the Need for a Federal Cybersecurity Agency 
Postscript (Note) by Danielle Warner

Copyright Backlash
Article by Ben Depoorter, Alain Van Hiel, & Sven Vanneste

The Federal Circuit and Inequitable Conduct: an Empirical Assessment
Article by Lee Petherbridge, Ph.D, Jason Rantanen, & Ali Mojibi

Whose Office Is This Anyway? A Look at the IRS’s New Position on Offshore Lending
Note by William A. Kessler II

Black and White or Red All Over? The Impropriety of Using Crime Scene DNA to Construct Racial Profiles of Suspects
Note by Natalie Quan

Climate Change and Future Generations
Article by Richard L. Revesz & Matthew R. Shahabian

Governance in the Breach: Controlling Creditor Opportunism
Article by Jonathan C. Lipson

The Nanotechnology Patent Thicket and the Path to Commercialization
Note by Amit Makker

Altruism or Commercialism? Evaluating the Federal Ban on Compensation for Bone Marrow Donors
Note by Nicolette Young

Intellectual Property as a Law of Organization 
Article by Jonathan M. Barnett

Embracing the New Geography of Health Care: A Novel Way to Cover Those Left Out of Health Reform
Article by Nathan Cortez

Criminal Cookbooks: Proposing a New Categorical Exclusion for the First Amendment
Note by Chelsea Norell

Blood Electronics: Congo’s Conflict Minerals and the Legislation that Could Cleanse the Trade
Note by Shannon Raj

Toward a Unified Theory of Exclusionary Vertical Restraints
Article by Daniel A. Crane & Graciela Miralles Murciego

Book Review: Integrating into a Burning House: Racial- and Identity-Conscious Visions in Brown’s Inner City
Article by Anthony V. Alfieri

A Congressional Carve Out: The Necessity for Uniform Application of Professional Sports Leagues’ Performance-Enhancing Drug Policies
Note by Lee Linderman

A Flawed Solution: The Difficulties of Mandating a Leverage Ratio in the United States
Note by John Holman

Reverse Incorporation of State Constitutional Law  
Article by Joseph Blocher

Within Subject Matter Eligibility—A Disease and a Cure 
Article by Allen K. Yu

“Trade in Force”: The Need for Effective Regulation of Private Military and Security Companies
Note by Stephanie M. Hurst

Taking the Fight Back to Title VII: A Case for Redefining “Because of Sex” to Include Gender Stereotypes, Sexual Orientation, and Gender Identity 
Note by William C. Sung

Empty Promises 
Article by Oren Bar-Gill & Kevin Davis 

Oversight Liability for Risk-Management Failures at Financial Firms 
Article by Robert T. Miller

Resolving the Dilemma of Nonjusticiable Causation in Failure-to-Warn Litigation 
Article by Aaron D. Twerski & Neil B. Cohen

Behavioral Addictions and the Law
Note by Brent S. Colasurdo

Taming the Paparazzi in the “Wild West”: A Look at California’s 2009 Amendment to the Anti-Paparazzi Act and a Call for Increased Privacy Protections for Celebrity Children
Note by Lauren N. Follett

Of Financial Rights of Assisted Reproductive Technology Nonmarital Children and Back-Up Plans
Postscript (Response) by Dara E. Purvis

Can Congress Make You Buy Broccoli? And Why It Really Doesn’t Matter
Postscript (Comment) by David Orentlicher

Gerontology and the Law: A Selected Annotated Bibliography: 2006–2008 Update
Bibliography by Judy Davis, Cindy Guyer & Paul J. Moorman

Protecting Children(?): Marriage, Gender, and Assisted Reproductive Technology
Article by Courtney G. Joslin

How Many Fiduciary Duties Are There in Corporate Law?
Article by Julian Velasco

Beyond No-Man’s Land: Psychiatry’s Imprecision Revealed by Its Critique of SVP Statutes as Applied to Pedophilia
Note by Jennifer Jason

Rethinking Conditional Federal Grants and the Independent Constitutional Bar Test
Note by Douglas A. Wick

The Last Best Hope for Progressivity in Tax
Article by Edward J. McCaffery & James R. Hines Jr.

Fighting for Asylum: A Statutory Exception to Relevant Bars for Former Child Soldiers
Note by Dani Cepernich

Alternatives to District Court Patent Litigation: Reform by Enhancing the Existing Administrative Options
Note by Eric B. Cheng

“These Scales Tell Us That There Is Something Wrong with You”: How Fat Students Are Systematically Denied Access to Fair and Equal Education and What We Can Do to Stop This
Note by Michelle Stover

Discovery for Foreign Proceedings after Intel v. Advanced Micro Devices A Critical Analysis of 28 U.S.C. 1782 Jurisprudence
Note by Marat A. Massen

Technological Fair Use
Article by Edward Lee

Collateral Conflict: Employer Claims of RICO Extortion Against Union Comprehensive Campaigns
Article by James J. Brudney

Using Numerical Statutory Interpretation to Improve Conflict of Interest Waiver Procedures at the FDA
Note by Saurabh Anand

Mixed Systems in Legal Origins Analysis
Note by Kensie Kim

Domesticating Intelligence
Article by Samuel J. Rascoff

Gender, Discourse, and Customary Law in Africa
Article by Johanna E. Bond

Book Review: Reply
Article by Ariela J. Gross

Book Review: Reading Between the (Blood) Lines
Article by Rose Cuison Villazor

Book Review:Discovering Identity in Civil Procedure
Article by Anthony V. Alfieri

Book Review: The “Common Sense” of Race
Article by Neil Gotanda

Book Review: Race, Blood, and What the Alligator Knows: A Review of What Blood Won’t Tell
Article by Jason A. Gillmer

Saving Lives Through Punitive Damages
Article by Joni Hersch & W. Kip Viscusi

The Political Economy of Youngstown
Article by Edward T. Swaine

Thwarting California’s Presumptive LWOP Penalty for Adolescents: Psychology’s and Neuroscience’s Message for the California Justice System
Note by Ashley N. Johndro

Can Widening the Scope of Information Reporting to Include Income Derived from Online Sales Help to Narrow the Expanding Tax Gap?
Note by Maricel P. Montano

What Dignity Demands: The Challenge of Creating Sexual Harassment Protections For Prisons and Other Nonworkplace Settings
Article by Camille Gear Rich

CFIUS as a Congressional Notification Service
Article by David Zaring

Rethinking Donor Disclosure After the Proposition 8 Campaign
Note by David Lourie

Format War, Antitrust Casualties: The Sherman Act and the Blu-Ray–HD DVD Format War
Note by Kevin L. Spark

Rewriting Frankenstein Contracts: Workout Prohibitions in Residential Mortgage-Backed Securities
Article by Anna Gelpern & Adam J. Levitin

Courts and The Politics of Backlash: Marriage Equality Litigation, Then and Now
Article by Jane S. Schacter

The Western Climate Initiative: Cross-Border Collaboration and Constitutional Structure in the United States and Canada
Note by Jeremy Lawrence

Rightful Prosecution or Wrongful Persecution? Abuse of Honest Services Fraud for Political Purpose
Note by Alexa Lawson-Remer

“Counter-Counter-Terrorism via Lawsuit”—The Bivens Impasse
Article by George D. Brown

Vacant Offices: Delays in Staffing Top Agency Positions
Article by Anne Joseph O’Connell

“[J]udicial [I]mperialism”? The South African Litigation, The Political Question Doctrine, and Whether the Courts Should Refuse to Yield to Executive Difference in Alien Tort Claims Act Cases
Note by Marissa Renée Geannette

Equity Compensation and Informant Bounties: How Tying the Latter to the Former May Finally Alleviate the Securities Fraud Predicament in America
Note by Justin Tyler Hughes

Directors Elections and the Role of Proxy Advisors
Article by Stephen J. Choi, Jill E. Fisch, & Marcel Kahan

Taxation and the Competitiveness of Sovereign Wealth Funds: Do Taxes Encourage Sovereign Wealth Funds to Invest in the United States?
Article by Michael S. Knoll

NEPA and CEQA: Effective Legal Frameworks For Compelling Consideration of Adaptation to Climate Change
Note by Katherine M. Baldwin

The Fraud Exception to the Parol Evidence Rule: Necessary Protection for Fraud Victims or Loophole for Clever Parties? 
Note by Alicia W. Macklin

The Emergent Logic of Health Care
Article by M. Gregg Bloche

The Failure of Private Equity
Article by Steven M. Davidoff

Second Amendment Standards of Review: What the Supreme Court Left Unanswered in District of Columbia v. Heller
Note by Jason T. Anderson

Reality’s Kids: Are Children Who Participate on Reality Television Shows Covered Under the Fair Labor Standards Act?
Note by Adam P. Greenberg

In Memoriam: A Tribute to Professor Charles H. Whitebread
Article by Rich Chacon, Erwin Chemerinsky, James B. Curtis, Susan Estrich, Michael J. Graetz, Louise LaMothe & Michael Sims

Beyond the Prisoners’ Dilemma: Coordination, Game Theory, and Law 
Article by Richard H. McAdams

The Extraterritorial Constitution After Boumediene v. Bush
Article by Gerald L. Neuman

Rethinking the Material Adverse Change Clause in Merger and Acquisition Agreements: Should the United States Consider the British Model?
Note by Andrew C. Elken

Depictions of the Pig Roast: Restricting Violent Speech Without Burning the House
Note by Michael Reynolds

Is the Family at Odds with Equality? The Legal Implications of Equality for Children
Article by Anne L. Alstott

How Courts Can Protect State Autonomy from Federal Administrative Encroachment
Article by Scott A. Keller

Clearing a Path for Digital Development: Taking Patents in Eminent Domain Through the Adoption of Mandatory Standards
Note by Brian Cook

Ganging Up on RICO: Narrowing Gonzalez v. Raichto Preserve the Significance of the Jurisdictional Element as a Constitutional Limitation in the Racketeer Influenced and Corrupt Organizations Act
Note by Noelle Formosa

The Nonconstitutional Character of Ineffective Assistance of Counsel Claims in Immigration Proceedings: A Brief Comment on Afanwi v. Mukasey
Postscript (Comment) by Patrick J. Glen

Interpretive Bulletin 08-1 and Economically Targeted Investing: A Missed Opportunity
Postscript (Comment) by Edward A. Zelinsky

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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