Print Archive – Southern California Law Review

SCLR Print Archive

Volume 95 (2022 - 2023)

Vol. 95, No. 1 (2022)
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Democracy Dies in Silicon Valley: Platform Antitrust and the Journalism Industry

Erick Franklund*

Newspapers are classic examples of platforms. They are intermediaries between, and typically require participation from, two distinct groups: on the one hand, there are patrons

Life Story Rights Litigation: Negotiating for a Happy Ending

Kendall Ota*

Filmmakers, television writers, and authors alike have made millions of dollars in the entertainment industry by telling stories that have already been lived by real

Taxing Guns

Thomas Griffith*, Nancy Staudt†

Policymakers across the nation have recently adopted new taxes on guns. As expected, these policies are controversial. Supporters believe the taxes will increase the cost

Transgender Rights & the Eighth Amendment

Jennifer L. Levi*, Kevin M. Barry†

The past decades have witnessed a dramatic shift in the visibility, acceptance, and integration of transgender people across all aspects of culture and the law.

Designing Supreme Court Term Limits

Adam Chilton*, Daniel Epps†, Kyle Rozema‡ & Maya Sen††

Since the Founding, Supreme Court Justices have enjoyed life tenure. This helps insulate the Justices from political pressures, but it also results in unpredictable deaths

Volume 94 (2020 - 2021)

Vol. 94, No. 1 (2020)
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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)
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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)
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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)
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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)
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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)
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Volume 93 (2019 - 2020)

Vol. 93, No. 1 (November 2019)
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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)
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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)
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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)
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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)
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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

Volume 92 (2018 - 2019)

Vol. 92, No. 1 (November 2018)
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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)
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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)
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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)
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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

Article | Tort 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)
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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)
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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

Volume 91 (2017 - 2018)

Vol. 91, No. 1 (November 2017)
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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)
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Article | Legal Theory
Is Cost-Benefit Analysis the Only Game in Town?
by Gregory C. Keating

Article | Anti-discrimination Law
Stategraft
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)
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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)
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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)
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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

Volume 90 (2016 - 2017)

Vol. 90, No. 1 (November 2016)
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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)
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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)
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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)
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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)
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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)
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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

Volume 89 (2015 - 2016)

Vol. 89, No. 1 (November 2015)
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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)
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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)
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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)
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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)
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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)
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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

Volume 88 (2014 - 2015)

Vol. 88, No. 1 (November 2014)
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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)
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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)
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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)
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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

Vol. 88, No. 5 (July 2015)
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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)
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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

Volume 87 (2013 - 2014)

Vol. 87, No. 1 (November 2013)
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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

Vol. 87, No. 2 (January 2014)
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(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)
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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

Volume 86 (2012 - 2013)

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

Volume 85 (2011 - 2012)

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

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

Volume 84 (2010 - 2011)

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

Volume 83 (2009 - 2010)

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

Volume 82 (2008 - 2009)

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

Volume 81 (2007 - 2008)

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

Volume 80 (2006 - 2007)

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

Volume 79 (2005 - 2006)

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)
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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)
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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

Volume 78 (2004 - 2005)

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

Architectural Censorship and the FCC
Article by Christopher S. Yoo