Law Commons^™

“Can You Hear Me Now?”: The Right To Counsel Prior To Execution Of A Cell Phone Search Warrant, Nathaniel Mensah

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

As advances in technology allow law enforcement to gain ever more expansive surveillance powers, the criminal justice system scrambles to keep up. The Fourth Amendment has been the primary vehicle through which modern criminal procedure has adapted to new technologies. That limited approach risks undue harm to criminal defendants and the truth-seeking function of our adversarial system by allowing ex parte warrants authorizing invasive searches of a defendant’s cell phone without the assistance of counsel. This Article calls for applying existing Sixth Amendment doctrine to modern technology, much like the Supreme Court’s recent Fourth Amendment jurisprudence. After putting this previously …

An (Un)Reasonable Expectation Of Privacy? Analysis Of The Fourth Amendment When Applied To Keyword Search Warrants, Helen Winters

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

In the “digital age,” perpetual changes in technology have brought increased opportunities for exchanges of personal data between individuals and third parties. Often, this information-sharing is a necessity to fully participate in modern society. Yet, investigative techniques such as reverse keyword search warrants have called into question the applicability of existing Fourth Amendment jurisprudence as applied to digital privacy. While societal expectations of personal privacy have evolved alongside technology, Fourth Amendment jurisprudence has not. The recent Carpenter decision signals a growing judicial concern for digital privacy, yet detrimentally cabins itself to extraordinarily specific circumstances, and effectively maintains the supremacy of …

School Curricula And Silenced Speech: A Constitutional Challenge To Critical Race Theory Bans, Dylan Saul

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

In 2021, conservative politicians, activists, and media personalities ignited a culture war over teaching critical race theory (CRT) in public schools. Something about this manufactured conflict struck a chord with American voters: school board meetings have devolved into screaming matches, education became a critical wedge issue in elections across the country, and nearly twenty state legislatures have considered or enacted bans on teaching CRT in K–12 public schools. The problem is, CRT—a legal academic theory contending that American laws and institutions are systemically racist—is not actually being taught in K–12 schools. Anti-CRT crusaders, nevertheless, have primed the American public to …

The Old Hand Problem, Xiao Wang

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

Senior status is a special form of retirement for federal judges. When a judge takes senior status, they open a vacancy on their court, yet continue to hear and decide cases. Most active judges today eventually go senior. Yet many do not do so the very moment they become eligible. So why do judges take senior status when they do? The scholarly consensus emphasizes non-partisan reasons, such as rising caseloads or financial incentives. This Article, though, presents the first attempt to comprehensively analyze the timing behind every senior status decision since 1919. My dataset offers a startling rebuttal to the …

Americans, Beyond States And Territories, Tom C.W. Lin

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

For over a century, the law has systemically marginalized over three million Americans living in the unincorporated Territories of the United States. The law has long defined the Territories homogenously and subserviently to States. It has segregated the rights and privileges of citizenship between those living in States and those living in Territories. Americans living in States receive all the rights and privileges of citizenship, while Americans living in Territories are dispossessed of their right to vote, meaningful political representation, and various federal benefits. This pernicious legal dualism between States and Territories has grounded over a century’s worth of public …

Public Law, Private Platforms, Andrew Keane Woods

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

Our law—both our constitutional law and much of our statutory law—has long drawn a fraught distinction between public and private domains. Indeed, debates about the public/private distinction date as far back as liberalism itself. But today’s private digital platforms strain that distinction to a new degree. Platforms have become our public spaces, but because they are privately owned and “merely” coordinate private ordering, they operate without the guardrails of many of our most important laws. For example, anti-discrimination law once covered nearly all short-term bookings at inns and hotels; today, nearly a quarter of the hospitality market is controlled by …

A “Duty To Write” Smart Contracts That Unsophisticated Users Have A “Duty To Read”, Chase Webber

Minnesota Journal of Law, Science & Technology

No abstract provided.

Tattoos, Norms, And Implied Licenses, Aaron Perzanowski

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

No abstract provided.

The Ethics Of Abortion Ban Exceptions: Is The “Life-Threatening” Exception Threatening Lives?, Mary E. Fleming

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

No abstract provided.

The Battle For The Soul Of The Gdpr: Clashing Decisions Of Supervisory Authorities Highlight Potential Limits Of Procedural Data Protection, Jordan Francis

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

No abstract provided.

Ai Tools For Lawyers: A Practical Guide, Daniel Schwarcz, Jonathan H. Choi

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

No abstract provided.

Property As A Legitimating Right, Duncan Hosie

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

No abstract provided.

Still On The Hook: Forward-Looking Releases Reel-In Potential Risks In Mergers And Acquisitions, Mark T. Wilhelm, Madison Fitzgerald

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

No abstract provided.

Civil Rights Liability For Bad Hiring, Nancy Leong

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

Suppose that a municipality hires a police officer, teacher, corrections officer, or other official with an extensive record of past misconduct—someone the municipality should have known better than to hire. When such an employee causes a violation of constitutional rights, the injured party often brings a civil rights suit under 42 U.S.C. § 1983, arguing that the municipality failed to screen the wrongdoer prior to hiring. Yet little is known about how such lawsuits play out on the ground.

In the first empirical study of municipal liability for bad hiring, this Article demonstrates that municipalities enjoy de facto immunity for …

Hello, World? Domestic Software Patent Protection Stands Alone Due To Uncertain Subject Matter Eligibility Jurisprudence, Maxwell H. Terry

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

In the last sixteen years, software-related inventions have encompassed the majority of all utility patents issued in the United States. Further, studies estimate that spending within the global information technology market will grow to $4.6 trillion in 2023, as industries such as data security, cloud computing, and artificial intelligence continue to innovate and expand at alarming rates. Needless to say, software is a crucial and ever-expanding industry for the global economy. In a series of recent cases, however, the Supreme Court injected unpredictability into the patenting of software and computer-implemented inventions by overhauling the long-standing patentable subject matter doctrine.

Embodied …

From Powell To Present: Defining The Right To Counsel Beyond Rothgery, Amy M. Cohen

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

Every morning in jails across America, new arrestees are woken up and ushered into a courtroom to be heard on their re- lease. Some might be coming down from a high, dealing with the consequences of binge drinking, or distressed about what this arrest might mean for their future. No matter the condition in which these defendants arrive to court, many will be forced to represent themselves and plead their own case for release without ever having spoken to an attorney. This leaves the defendant at risk of being detained pretrial, incriminating themselves in the courtroom, or even pleading guilty …

The Virtuous Executive, Alan Z. Rozenshtein

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

As currently conceived, executive power law and scholarship detach the identity of the President from the powers and duties of the presidency. Whether an official was properly dismissed without cause, whether a pardon was validly issued, whether a foreign policy debacle rose to the level of an impeachable offense—the answers to all these questions are not supposed to depend on the President’s personal characteristics. This Article argues that this veil of ignorance is incompatible with a correct understanding of Article II. To properly empower good Presidents and constrain bad ones, constitutional actors must take into account the President’s personal characteristics. …

Just Extracurriculars?, Emily Gold Waldman

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

Extracurricular activities have been the battleground for a striking number of Supreme Court cases set at public schools, from cases involving speech to religion to drug testing. Indeed, the two most recent Supreme Court cases involving constitutional rights at public schools—Kennedy v. Bremerton School District (2022) and Mahanoy Area School District v. B.L. (2021)—both arose in the extracurricular context of school sports. Even so, the Supreme Court has never fully clarified the status of extracurricular activities themselves. Once a school offers an extracurricular activity, is participation merely a privilege? Does the fact that extracurricular activities are voluntary for students affect …

Banking Deserts, Structural Racism, And Merger Law, Christopher R. Leslie

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

Roughly seventy million Americans cannot access a bank account or traditional financial services. Many of these individuals live in a “banking desert”—a town or community that has neither an independent bank nor a branch office of a larger bank. The United States has over 1,100 banking deserts, with another 1,000 communities at risk of losing their last bank. Banking deserts are generally in low- and moderate-income neighborhoods, which are disproportionately communities of color. Residents of banking deserts lack access to credit, including mortgages and small business loans, as well as savings accounts and other basic financial services. Consolidation in the …

Sidestepping The Escherian Stairwell: Explicit Establishment As A Method For Circumventing Qualified Immunity's Constitutional Stagnation, Earl Y. Lin

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

In recent years, the doctrine of qualified immunity (QI) has gained increased prominence in the public consciousness. Prior to the murder of George Floyd and the resulting nationwide racial justice protests and uprisings, this Supreme Court–made doctrine—and the ways it shields law enforcement officers from legal accountability—was a relatively esoteric legal topic. Yet by the summer of 2020, Americans were marching in the streets with signs calling for QI’s demise, and polling found QI to be disfavored by a margin of two-to-one. This same polling also showed a sharp decline in public confidence that police would use force appropriately, treat …

Personal Jurisdiction’S Moment Of Opportunity: A Reform Blueprint For Originalists And Nonoriginalists, Allan Erbsen

Articles

Personal jurisdiction doctrine is broken, but there is a moment of opportunity to repair it. The Supreme Court has struggled for decades to explain why constitutional law sometimes prevents states from providing local remedies for local injuries. Basic questions lack satisfying answers. Should doctrine emphasize liberty or federalism? Is the Due Process Clause the proper foundation for limits on state power or are other clauses more relevant? What harms should limits on state power prevent and what harms should limits avoid creating? Decisions addressing these questions rely on jargon rather than a coherent account of how to allocate jurisdictional power …

Standing, Nominal Damages, And Nominal Damages "Workarounds" In Intellectual Property Law After Transunion, Thomas F. Cotter

Articles

In June 2021, the United States Supreme Court held, in TransUnion LLC v. Ramirez, that plaintiffs lack standing to assert claims for statutory damages under the Fair Credit Reporting Act unless they can demonstrate “concrete harm” arising from those violations. Although TransUnion was not a case involving intellectual property (“IP”) rights, if the rationale of the decision is that Congress cannot authorize federal courts to entertain claims for statutory damages unless the plaintiff shows that it has suffered actual harm, some common monetary awards for the infringement of IP rights — specifically, statutory damages, reasonable royalties, and (in design patent …

Supporting Families In A Post-Dobbs World: Politics And The Winner-Take-All Economy, June Carbone

Articles

The pathway to stable and secure middle-class status involves two elements: the ability to postpone family formation to facilitate human capital investment and the ability to marshal the emotional and material resources needed to address children needs. Yet, the ability to meet the middle-class threshold for family investment is under assault as the class-based COVID-19 pandemic vulnerabilities and the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization illustrate. While the American Rescue Plan demonstrates the federal government's considerable ability to address children's needs, Dobbs represents the judicial assault on federal power and the ongoing devolution in responsibility for …

The Multifaceted Method Of Comparative Law And Economics, Francesco Parisi

Articles

As initially conceived of in the Eighties, Comparative Law and Economics provided legal scholars a neutral language for the exploration of similarities and differences across legal systems. Its value added is the theoretical rigour of its models and the possibility to engage in a scientific dialogue not hampered by jurisdiction-specific features. At a later stage, comparative approaches became fully embedded in economic research and its empirical methods. Possible synergies with comparative legal research abound, but the organization of academic structures has so far prevented to fully exploit them.

Moderating The Fediverse: Content Moderation On Distributed Social Media, Alan Rozenshtein

Articles

No abstract provided.

Doing Injustice: Exchanging One “Arbitrary, Cruel, And Reckless” Sentencing System For Another, Michael Tonry

Articles

Marvin Frankel’s characterization of American sentencing in Criminal Sentences: Law Without Order remarkably successfully distilled ideas that were in the air and emerging. His main proposals—a sentencing commission, sentencing rules, requirements that judges explain their decisions, and meaningful appellate sentence review—would in a better America go a long way toward establishing the kind of rational, humane, and just process he imagined. Despite some early, partial successes, however, Frankel’s proposals remain largely untested. In retrospect, he underestimated, misunderstood, or chose to ignore formidable political impediments to serious sentencing reform in late twentieth century America. He also largely ignored two intractable problems, …

The Blue Family Constitution, June Carbone

Articles

No abstract provided.

The Partial Success Of Judge Frankel’S Sentencing Commission, Fifty Years On, Richard Frase

Articles

Judge Marvin Frankel’s writings in the early 1970s inspired the creation of sentencing guidelines commissions and guidelines rules in twenty-two state and federal jurisdictions. By the late 1970s Frankel’s tentative proposals had been substantially filled out by other writers and reformers; the two most common guidelines models were adopted by Minnesota (1980) and Pennsylvania (1982). The federal guidelines (1987) have been justly criticized, but most state guidelines have been accepted by judges and other practitioners and observers. This sentencing reform model has also been endorsed by the American Bar Association and the American Law Institute. This essay tells the story …

State Responsibility For Human Rights Violations Perpetrated In The Name Of International Counter-Terrorism Financing Obligations, Fionnuala Ní Aoláin

Articles

This Essay responds to the increasing adoption by States across continents of repressive, over-reaching laws, regulations, and policies aimed at countering the financing of terrorism. It documents the immense international pressure to adopt counter-terrorism financing measures, coupled with the seeming marginalization of concurrent international human rights law obligations. The Essay first sets out the applicable legal framework and rapid normative developments in international counter-terrorism financing law. Second, the Essay provides a snapshot of existing allegations of human rights violations committed in the name of international counter-terrorism financing obligations, including judicial harassment and undue surveillance of human rights defenders and civil …

Textualism And The Administrative Procedure Act, Kristin Hickman

Articles

In recent years, the Supreme Court occasionally has applied a more limited approach to textualist reasoning that, if applied to the APA, could expand the perceived gulf between textualism and existing administrative law doctrine. Our purpose with this Essay is to explore the implications of this trend for APA interpretation, particularly as it might apply to agency rulemaking. We do not purport to address critics of textualism as an interpretive methodology; we speak primarily to those who are persuaded of textualism’s merits. We also will not try to resolve all the many disagreements about textualism’s variations or the APA’s meaning. …