Law Commons^™

Gender-Based Persecution, Protection, And Particularity: The Case For Returning To Acosta, Meg Keiser

Minnesota Journal of Law & Inequality

No abstract provided.

Uneven Scales: How The Symbiotic Relationship Between Prosecutors And Judges Results In Unfair Criminal Proceedings, Edward S. Adams

Minnesota Journal of Law & Inequality

No abstract provided.

John Roberts’ Supreme Court: The Triumph Of Partisanship And Ideology Over Precedent, David Schultz, Jacob Bourgault

Minnesota Law Review Headnotes, Vols. 107 onward (2022-present)

No abstract provided.

What’S So Compelling About Diversity Anyway?: How The Affirmative Action Diversity Rationale Was Built To Fail Under Today’S Equal Protection Doctrine, Fariza Hassan

Minnesota Journal of Law & Inequality

No abstract provided.

Busting Ghosts: How Regulatory Gaps Fail To Address Ghost Guns, And What Can Be Done Post-Bruen, Wyatt Lutenbacher

Minnesota Journal of Law & Inequality

No abstract provided.

The Big Four [Accounting] Law Firms: It's Past Time For The Practice Of Law To Get In The Game, Edward S. Adams, John H. Matheson

Articles

New legal services models like ABSs and accommodations like UPL waivers provide multiple positive outcomes. These business structures increase access to legal services, particularly for low and middle-income individuals who are currently priced out of them. By allowing these services to be conducted by nonlawyers, the current supply gap could be closed or completely eliminated. Also, the increased pressure on law firms from corporations and ABSs promotes free market competition. Law firms will be forced to either find a way to differentiate their expertise and services or face a serious threat due to the rejection of the traditional billable hour …

The Normative Porosity Of The Un Convention On The Law Of The Sea: From "Human Rights At Sea" To The "Ocean-Climate Nexus", Eduardo Cavalcanti De Mello Filho

Minnesota Journal of International Law, Vols. 28:2 onward (2019-present)

This article delves into the nexus between the 1982 U.N. Convention on the Law of the Sea (“UNCLOS”) and the broader international legal order, focusing on UNCLOS Article 287 tribunals with jurisdiction limited to disputes related to the Convention. The study categorizes three gateways through which external rules of international law influence the interpretation and application of UNCLOS: Renvoi provisions, systemic interpretation mechanisms, and systemic integration via Article 293(1). Considering recent studies highlighting UNCLOS as a “springboard for interaction,” this research synthesizes legal dogmatics with insights from the sociology of law and international relations theory. Mindful of the momentum experienced …

Peace Agreements And The Persuasive Authority Of International Law, Gregory H. Fox, Timothy Jones

Minnesota Journal of International Law, Vols. 28:2 onward (2019-present)

Non-international armed conflicts, or “NIACs,” are the most common form of warfare in the contemporary era. Not surprisingly, agreements ending NIACs are the most common type of peace agreement. But NIAC agreements appear permanently suspended in an international legal limbo: they do not qualify as binding treaties and neither international actors nor scholars agree on another legal status for these critical instruments. This article is the second in a series to explore alternatives to the binding/non-binding dichotomy in understanding NIAC agreements’ relation to international law. We argue that the agreements regularly incorporate principles of international law embodied in a range …

The Rule Of Law In Armed Conflict, Hitoshi Nasu

Minnesota Journal of International Law, Vols. 28:2 onward (2019-present)

A fundamental problem in the relationship between war and law has emerged, with two diverging approaches to conceptualizing how law applies to the conduct of hostilities: the operational application for the implementation of legal obligations during combat operations, on the one hand, and the adjudicative application for prosecution and reparation, on the other. Diverging approaches stem from institutional and practical constraints on adjudication, testing the fundamental premise upon which international law operates as a political project to manage international order under the rule of law. This article addresses the doctrinal manifestation of this trend and articulates the parameters in which …

Explaining Constitutional Copying As An Idealogy: Argentina's "Yankee-Mania" Under President Domingo Sarmiento (1868-1874), Jonathan M. Miller

Minnesota Journal of International Law, Vols. 28:2 onward (2019-present)

Foreign constitutional models can transform a country thanks to the power of ideology. The comparative constitutional literature maintains that successful constitutionalism requires credible commitments to essential rules by all major political actors so that those out of power can avoid persecution that will drive them into rebellion, and those in power can feel assured that if they relinquish power, the opposition will respect their core interests. The literature also assumes that the process of reaching credible commitments is a slow one, but that over time civil society, courts and government bureaucracies will strengthen the commitments and act against unconstitutional power …

The Power Of Subnational Actors In Enforcement Of The Convention On Long-Range Transboundary Air Pollution, Wendy Erickson

Minnesota Journal of International Law, Vols. 28:2 onward (2019-present)

The Geneva Convention on Long-Range Transboundary Air Pollution (CLRTAP) was adopted in 1979 and continues to serve as the preeminent international framework for transboundary air pollution. The international community has used a range of multilateral and bilateral cooperative arrangements to address international movement of harmful pollutants. Each has had to contend with the issue of ensuring compliance among party States. CLRTAP faces challenges in addressing transboundary pollution in non-Western countries despite clear evidence that air pollution is harmful to human health and technological developments that enable more accurate tracking of pollutants. In the absence of a model assigning liability for …

Solving Standing Is Simply The Start: Climate Litigation Lessons Learned From The Evolution Of Rights Of Nature, Madeleine L. Kim

Minnesota Journal of International Law, Vols. 28:2 onward (2019-present)

The global climate crisis continues to worsen. The Sixth Synthesis Report issued by the Intergovernmental Panel on Climate Change in 2023 unequivocally stated that “[w]idespread and rapid changes in the atmosphere, ocean, cryosphere and biosphere have occurred” and that “[h]uman-caused climate change is already affecting many weather and climate extremes in every region across the globe.” This report expressly states that climate change has “led to widespread adverse impacts and related losses and damages to nature and people” and that the “projected adverse impacts and related losses and damages from climate change escalate with every increment of global warming." However, …

The Alien Tort Statute And U.S. Extraterritorial Jurisdiction: Legal And Economic Corporate Governance Implications Beyond Al Shimari V. Caci Int'l, Gabriel Richardson

Minnesota Journal of International Law, Vols. 28:2 onward (2019-present)

This note is divided into four overall parts. To continue with the academic dialogue regarding the ATS, the first part (Part I) deals with the historical overview and case law of the ATS, while contrasting the development of extraterritoriality in the United States with that abroad (particularly, Europe). More specifically, the first part is divided into two subparts—Subpart A provides a comprehensive background and historical legal overview of the ATS and Subpart B discusses the international trend, particularly in Europe, in extending legal mechanisms to hold corporations accountable beyond their borders, unlike the United States—which, again, was once at the …

Taxing Sugar Babies, Bridget J. Crawford

Minnesota Law Review Vols. 106:2 onward (2021-present)

How people talk about tax reflects both personal beliefs and larger cultural attitudes. In many cases, whether and how a potential taxpayer understands their activities in tax terms may also reveal attitudes about themselves and the value that society assigns to those activities. This Article examines how sugar daddies and sugar babies talk about taxes in two Internet discussion forums to reveal the ongoing stigma associated with sex work. Through mostly content analysis, the focus is on the attitudes of sugar daddies and sugar babies toward taxation and the filing positions they take, as well as how tax professionals intervene …

Not-So-Special Solicitude, Katherine Mims Crocker

Minnesota Law Review Vols. 106:2 onward (2021-present)

In a high-profile 2023 case about state standing to sue in federal court, Justice Gorsuch deemed it “hard not to wonder why” the majority said “nothing about ‘special solicitude.’” The silence was indeed surprising, for in a landmark decision several years earlier, the Supreme Court had declared that states were “entitled to special solicitude”—presumably meaning some sort of preferential treatment—“in [the] standing analysis.” And since then, commentators have depicted the concept as permitting opportunistic states to wage ideological crusades in courts across the country, especially through administrative-law attacks on federal government defendants.

But what if “special solicitude” is not so …

Green Gatekeepers, Luca Enriques, Alessandro Romano, Andrew F. Tuch

Minnesota Law Review Vols. 106:2 onward (2021-present)

Products are routinely labeled “carbon neutral,” “recycled,” “biodegradable,” “ocean-friendly,” and “sustainable.” Bonds are marketed as “green” and mutual funds as “ESG,” while firms may pledge to become “net zero.” But are statements concerning environmental qualities reliable? It is often hard for consumers and investors to tell. Environmental qualities tend to have credence attributes; they cannot be verified even after consumption. Green gatekeepers constitute an increasingly important response to this problem. Occasionally required by law but more often enlisted voluntarily by firms, green gatekeepers certify claims made about the green qualities of products or firms, promising to significantly mitigate information asymmetries …

Reconceptualizing "Background Principles" In Takings Law, Timothy M. Mulvaney

Minnesota Law Review Vols. 106:2 onward (2021-present)

Both libertarians and progressives rejoiced in the result reached by the Supreme Court in the 2023 matter of Tyler v. Hennepin County. This Article asserts that such unified celebration has overshadowed the extent to which the Supreme Court’s reasoning calls into question even our most foundational assumptions about the meaning of property and the takings protections the Constitution affords to it. Followed to its literal end, Tyler remarkably suggests that owners may well need to ground their expectations in the background principles of property laws endorsed by a majority of states rather than in those underpinning the laws of their …

May Contain Peanuts, Eggs, And A "Natural" Solution: How To Challenge Food Manufacturers' Harmful Use Of Precautionary Allergen Labels, Jj Mark

Minnesota Law Review Vols. 106:2 onward (2021-present)

Food allergies are one of the most pressing health issues of our time. Around thirty-three million Americans currently have food allergies, thirteen million of which are severe or life-threatening. These numbers continue to increase at alarming rates, with an estimated one in thirteen children being diagnosed with food allergies every year. Despite this surge, much is still unknown about food allergies, including, most notably, the underlying causes and potential cures. Currently, the only recommended treatment method is strict avoidance, leaving those with food allergies almost completely dependent on food labeling. Despite the importance of food labels for those with allergies, …

Informed Bystanders' Duty To Warn, Gilat J. Bachar

Minnesota Law Review Vols. 106:2 onward (2021-present)

Should bystanders with credible knowledge about prospective harm owe a duty of care to future victims? This urgent question comes up in various contexts, from former employers who withhold information about a serial harasser to data brokers who are silent about stalkers that track personal information. Under established common law, the “No Duty to Act” (“no-duty”) rule generally does not require bystanders to warn strangers. Carving out an exception to this rule decades ago, Tarasoff v. Regents of the University of California imposed a duty on a mental health professional to warn a prospective victim about the risk posed by …

Lawyering In The Age Of Artificial Intelligence, Jonathan H. Choi, Amy B. Monahan, Daniel Schwarcz

Minnesota Law Review Vols. 106:2 onward (2021-present)

We conducted the first randomized controlled trial to study the effect of AI assistance on human legal analysis. We randomly assigned law school students to complete realistic legal tasks either with or without the assistance of GPT-4, tracking how long the students took on each task and blind-grading the results.

We found that access to GPT-4 only slightly and inconsistently improved the quality of participants’ legal analysis but induced large and consistent increases in speed. AI assistance improved the quality of output unevenly—where it was useful at all, the lowest-skilled participants saw the largest improvements. On the other hand, AI …

Repurposed Energy, Alexandra B. Klass

Minnesota Law Review Vols. 106:2 onward (2021-present)

Wildfires, weather extremes, and other conditions induced partially by climate change add urgency to the project of accelerating the clean energy transition from fossil fuels to zero-carbon energy infrastructure. Yet the hurdles to accomplishing such a massive industrial-scale transition are daunting. Indeed, large renewable energy generation projects regularly face denials or project-killing delays across the United States. This Article proposes a national policy to channel the bulk of new clean energy projects to targeted categories of both rural lands and urban, post-industrial lands that we define collectively as “repurposed energy” sites. Such lands will consist of marginal farmland, abandoned coal …

Definite Convictions: United States V. Alt And The Seventh Circuit's Prohibition On Defining "Beyond A Reasonable Doubt", Samuel Busiman

Minnesota Law Review Vols. 106:2 onward (2021-present)

The Seventh Circuit prohibits judges and attorneys from defining “beyond a reasonable doubt” to jurors. While United States v. Alt crystalized this prohibition in early 2023, the circuit has effectively banned definition of the phrase for much longer. Yet, a growing consensus of psychological research into the standard reveals that when left undefined, it fails to protect criminal defendants from uncertain convictions that violate the requirements of due process. What’s more, the phrase was never supposed to serve as a standard of proof in the first place—its historical origins reveal it functioning to assuage the spiritual concerns of early Christian …

Reconstruction, And The Unfulfilled Promise Of Antitrust, Bennett Capers

Minnesota Law Review Vols. 106:2 onward (2021-present)

Wealth inequality remains as wide, and as troubling, as it was a half-century ago. While scholars have offered various explanations, there is a contributor that has escaped serious scrutiny: state monopoly power. It is not just that there is a long history of states and municipalities using their monopoly power to protect dominant interests, from enacting Black Codes to shuttering Chinese laundries to barring women, immigrants, and minorities from certain professions. It is also that states continue to use their monopoly power in ways that entrench inequality, from zoning restrictions to eminent domain to regulations that, in effect, bar Black …

If Lived Experience Could Speak: A Method For Repairing Epistemic Violence In Law And The Legal Academy, Terrell Carter, Rachel Lopez

Minnesota Law Review Vols. 106:2 onward (2021-present)

Terrell Carter grew up only a stone’s throw from Drexel University, the institution of higher learning where the other coauthor of this Article, Rachel López, would find her academic home years later. Even as a child, Terrell remembers feeling like other institutions that were miles away, like State Correctional Institution Graterford where he would spend most of his adult life, were much more proximate. Paradoxically, he would later come to learn that behind the walls of institutions like Drexel, academics like Rachel would develop ideas and theory that would shape his fate and define his existence behind other walls. Through …

As Punishment For Arrests: Involuntary Servitude Under The Housekeeping Exception To The Thirteenth Amendment, Elissa Bowling

Minnesota Law Review Vols. 106:2 onward (2021-present)

The Thirteenth Amendment reads: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” Yet, in contemporary American jails and prisons, pretrial detainees have been forced to perform work for these carceral facilities despite not being convicted of a crime. When tasked with assessing the constitutionality of such pre-conviction labor policies, courts employed a narrow reading of the Thirteenth Amendment and ruled that jails and prisons can compel pretrial detainees to perform maintenance and operational tasks under the …

Age Restrictions And The Right To Keep And Bear Arms, 1791–1868, Megan Walsh, Saul Cornell

Minnesota Law Review Vols. 106:2 onward (2021-present)

The disproportional misuse of firearms by eighteen-to-twenty-year-olds has long been a problem in America. The concerns are not novel. Nor are legislative responses to this problem a recent development in American law. These limitations are deeply rooted in American legal history. While minimum age gun laws routinely survived constitutional challenges before the Supreme Court's decision in New York State Rifle & Pistol Ass'n v. Bruen, the majority of courts applying Bruen have struck down firearms restrictions based on age. Bruen fundamentally altered the way courts evaluate the constitutionality of firearms regulations, requiring them to judge modern gun laws based on …

Firearms And The Homeowner: Defending The Castle, The Curtilage, And Beyond, Cynthia Lee

Minnesota Law Review Vols. 106:2 onward (2021-present)

In the spring of 2023, a series of back-to-back shootings shook the nation. A Black teenager in Missouri trying to pick up his two younger siblings went to the wrong door and rang the doorbell. The homeowner came to the door with a gun and, without saying a word, fired two shots at the Black teenager, hitting him in the face and the arm. A few days later, a Caucasian woman and her friends in upstate New York, looking for a party, drove up the wrong driveway. The homeowner came out of his house with a shotgun and fired two …

The Second Amendment’S Racial Justice Complexities, Daniel S. Harawa

Minnesota Law Review Vols. 106:2 onward (2021-present)

The relationship between the Second Amendment and racial justice is complicated. That's because the relationship between penal administration and racial justice is complicated. The briefing in New York State Rifle & Pistol Association v. Bruen perfectly proves this point. A group of public defenders favored striking down New York's concealed carry licensing law to further racial justice, while a group of civil rights organizations argued that the law should be upheld to further racial justice. What the briefing revealed is that Black people have an interest in being free from racially disparate policing and prosecution of all criminal laws, including …

Aiming For Answers: Balancing Rights, Safety, And Justice In A Post-Bruen America, Chad Nowlan

Minnesota Law Review Vols. 106:2 onward (2021-present)

No abstract provided.

Challenging The Criminalization Of Homelessness Under Fair Housing Law, Tom Stanley-Becker

Minnesota Journal of Law & Inequality

No abstract provided.