Lenity and the Meaning of Statutes
Ordinary canons of statutory interpretation try to encode linguistic rules into jurisprudence. Their purpose is to figure out the meaning of a text, and their outcome is to determine the meaning of the text. Both the purpose and the outcome are linguistic. The rule of lenity is not an ordinary canon of statutory interpretation. The
Seeing and Serving Students with Substance Use Disorders Through Disability Law
The opioid epidemic has brought the immense harms of substance abuse to the fore of national attention. Despite a growing bipartisan consensus that substance use disorders are best addressed through treatment and community support, rather than punitive deterrence measures, policymakers have yet to allocate the necessary resources for a comprehensive and evidence-based national drug policy.
Analyzing the Circuit Split Over CDA Section 230(E)(2): Whether State Protections for the Right of Publicity Should be Barred
INTRODUCTION In 2018, coworkers notified Karen Hepp, a newscaster and co-anchor for the local Fox affiliate’s morning news program Good Day Philadelphia, that a screenshot of her smiling at a hidden security camera taken about fifteen years ago was being used in various online advertisements for erectile dysfunction and dating apps. Hepp was not previously
Affirmative Acting: The Role of Law in Casting More Actors With Disabilities (A Note in Five Acts)
SETTING THE STAGE: INTRODUCTION “Always find your light.” This is a common piece of advice given to theater artists, encouraging them to make sure they can be seen on stage. But who gets the chance to grace the stage in the first place? Our society has recently begun to actively ask new questions about
Race and Politics: The Problem of Entanglement in Gerrymandering Cases
Gerrymandering—the manipulation of political districting processes and boundaries for partisan political advantage—has proven a troubling and difficult area of constitutional concern. This is partly due to the exceptionally divergent standards of judicial review applicable depending upon the basis for the gerrymander claim. The Supreme Court has consistently held that racial gerrymanders are subject to strict
Fifty Ways to Leave Your Lover: Doing Away with Separation Requirements for Divorce
Despite the evolution of no-fault divorces, which were intended to remove certain barriers to divorce and essentially make any divorce filed inevitable, many jurisdictions prescribe a waiting period before eligibility for divorce, during which there must be a demonstrable period of separation. In support of findings of facts and conclusions of law about whether the
The Invention of Antitrust
The long Progressive Era, from 1900 to 1930, was the Golden Age of antitrust theory, if not of enforcement. During that period courts and Progressive scholars developed nearly all of the tools that we use to this day to assess anticompetitive practices under the federal antitrust laws. In a very real sense, we can say
Toward a New Fair Use Standard: Attributive Use and the Closing of Copyright’s Crediting Gap
A generation ago, Judge Pierre Leval published Toward a Fair Use Standard and forever changed copyright law. Leval advocated for the primacy of an implicit, but previously underappreciated, factor in the fair use calculus—transformative use. Courts quickly heeded this call, rendering the impact of Leval’s article nothing short of seismic. But for all of its merits, Leval’s
Ditching Daimler and Nixing the Nexus: Ford, Mallory, and the Future of Personal Jurisdiction under the Corporate Consent and Estoppel Framework
While personal jurisdiction is intended to assess whether a defendant should be forced to defend a lawsuit in a location due to the defendant’s contacts with that forum, the doctrine has shifted to require the plaintiff to show a connection to the forum, even if the defendant otherwise has substantial contact with it. In its
Fractionalization to Securitization: How the SEC May Regulate the Emerging Assets of NFTs
Blockchain technology opened the world to a variety of new technological advances that reshaped the way humans interact and transact with one another. One of the most recent and trending applications of blockchain technology is non-fungible tokens or “NFTs.” NFTs are unique digital tokens encoded on a blockchain that represent ownership of specific digital assets
Justice Breyer’s Friendly Legacy for Environmental Law
Environmentalists did not cheer President Bill Clinton’s decision in May 1994 to nominate then-First Circuit Judge Stephen Breyer to fill Justice Harry Blackmun’s seat on the Supreme Court. Just the opposite. Many instead expressed serious concerns about Breyer’s impact on environmental law were he to be confirmed, and openly questioned whether a Justice Breyer might
Should Humanity Have Standing? Securing Environmental Rights in the United States
While courts around the world are increasingly recognizing rights of nature or the rights of individuals or communities to a safe and healthy environment, American courts have been much more skeptical of environmental rights claims. This Article examines this growing divergence and identifies trends in American law that might account for it, including explanations deeply
Standing for Rivers, Mountains—and Trees—in the Anthropocene
In his well-known article, Should Trees Have Standing?—Toward Legal Rights for Natural Objects, Professor Christopher Stone proposed that courts grant nonhuman entities standing as plaintiffs so their interests may directly represented in court. In this Article, I review Stone’s ideas about standing and our relationship with the natural environment and describe the current, burgeoning, widespread
Fish, Whales, and a Blue Ethics for the Anthropocene: How Do We Think About the Last Wild Food in the Twenty-First Century
One of the lesser celebrated threads of Christopher Stone’s scholarship was his interest in the ocean—especially international fisheries and whaling. Fish and whales are among the “last wild food”—that is, species that humans take directly from the wild for food purposes. While whales are primarily cultural food, fisheries remain important contributors to the human diet
Identifying Contemporary Rights of Nature in the United States
The Rights of Nature movement is at the precipice of watershed social changes. Leaders of this international, Indigenous-led movement call upon the public to radically reimagine the human relationship with nature. This Article comes at a crucial moment when some leading environmental law scholars are questioning the potential Rights of Nature within the United States.