Law Commons^™

To Save Democracy From Juristocracy: J.B. Thayer And Congressional Power After The Civil War, Samuel Moyn, Rephael G. Stern

Constitutional Commentary, Vol. 37 and later (2023–present)

As many Americans once again worry that their democracy is hostage to judicial power, this Article is an archival reconstruction of how famed Harvard law professor James Bradley Thayer set out on a mission to stave off the syndrome before it stuck—though he failed in the end. The Article shows how Thayer (1831–1902) arrived at his epoch-making theory of judicial deference to safeguard Congress’s power after the democratic revolutions of the Civil War and Reconstruction. Indeed, he hoped to see America transformed in the direction of British legislative supremacy, in which Parliament—and not the courts—reigned supreme.Scandalized by growing ventures to …

The Right To Counsel For Habeas Proceedings, Amy Cohen

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

No abstract provided.

Interstate Cannabis Compacts: The Road To A Regional Legal Cannabis Economy, Michael J.K.M. Kinane

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

No abstract provided.

An Organizational Theory Of International Technology Transfer, Peter Lee

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

International technology transfer plays a critical role in advancing economic and social welfare around the world. Conventional wisdom holds that strong intellectual property rights—primarily patents—promote the transfer of technologies between countries. An important counternarrative, however, contends that weakening patents promotes important forms of technology transfer. This Article challenges the centrality of both perspectives by arguing that neither strengthening nor weakening patents is sufficient to transfer many technologies. This Article disaggregates international technology transfer into its constituent activities, focusing on the important processes by which technical knowledge itself moves between countries. In theory, patents play an important role in the international …

Help Me Sue A Gun Manufacturer: A State Legislator's Guide To The Protection Of Lawful Commerce In Arms Act And The Predicate Exception, Evan Dale

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

Gun violence has become one of the central issues of our time. The number of gun violence victims, gun homicides, and mass shootings break all-time American records nearly every year. As the number of victims of gun violence rises, victims have tried—and largely failed—to hold gun manufacturers civilly liable for the weapons’ role in their injuries. The failure of these suits stems from the Protection of Lawful Commerce in Arms Act (PLCAA), which grants the gun industry broad protection against civil suits for the use of their weapons by third parties. The PLCAA provides limited exceptions to these protections, including …

Physicians Spreading Medical Misinformation: The Uneasy Case For Regulation, Richard S. Saver

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

Physicians have played a surprisingly prominent role in the current “infodemic” of false and misleading medical claims. Yet, state medical boards, the governmental agencies responsible for professional licensure and oversight, have sanctioned remarkably few physicians. Pushing back against the widespread criticism of medical boards for insufficient action, this Article questions the overall suitability of licensure regulation to police medical misinformation. First, uncertainty exists about medical boards’ jurisdiction and legal authority. Many misinformation claims have involved physicians communicating publicly, not while treating patients. Given the primarily patient-centered legal and ethical frameworks governing the practice of medicine, serious challenges arise in making …

Banishing Federal Overstep: Why Protecting Tribal Sovereignty Justifies A Narrow Reading Of The Indian Civil Rights Act, Randa Larsen

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

At the heart of this note_comment is the need to preserve Tribal sovereignty. This note_comment focuses on a lesser-known issue currently being debated in circuit courts: whether Tribes should be permitted to banish Tribal members from their ranks without submitting to the scrutiny of federal courts. Recently, there has been a resurgence in banishment discussions in Indian Country. To justify banishment, an individual’s actions must reach the point that they disrupt Tribal cohesion, the Tribe’s overarching cultural identity, and its bylaws. Banishment comes under federal review when banished individuals file a writ of habeas corpus under section 1303 of the …

Bringing Courts Into Global Governance In A Climate-Disrupted World Order, Karen C. Sokol

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

Climate-driven geophysical and geopolitical shifts are putting increasing pressure on international law and global governance. One window into the challenges and opportunities presented by these ongoing disruptions is provided by a surge of “climate-accountability” cases, which argue that governments and corporations are responsible for addressing climate risks or repairing climate harms. This Article fills a gap in the literature by providing the first theoretical account of the structural role of courts in global governance in these cases and a typology of their functions. The panoramic perspective that I take shows that two extraordinary worldwide shifts are underway: historic applications of …

Regulating History, Sara C. Bronin, Leslie R. Irwin

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

America’s local historic commissions collectively wield tremendous influence over millions of privately-owned parcels of land. By reviewing rehab proposals, blocking demolitions, and mandating property maintenance, these commissions have helped to protect many of America’s most beloved neighborhoods. They fill a vacuum left by federal and state governments, which have declined to offer robust legal protections to private historic sites.

Litigation challenging local historic decisions and press vilifying commissions for their alleged elitism, anti-environmental decisions, and general obstruction of progress have put preservation in the contemporary crosshairs. While we align with those who believe that clear-thinking commissions can successfully mediate between …

The Algorithmic Explainability "Bait And Switch", Boris Babic, I. Glenn Cohen

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

Explainability in artificial intelligence and machine learning (AI/ML) is emerging as a leading area of academic research and a topic of significant regulatory concern. Increasingly, academics, governments, and civil society groups are moving toward a consensus that AI/ML must be explainable. In this Article, we challenge this prevailing trend. We argue that for explainability to be a moral requirement—and even more so for it to be a legal requirement—it should satisfy certain desiderata which it often currently does not, and possibly cannot. In particular, this Article argues that the currently prevailing approaches to explainable AI/ML are often (1) incapable of …

The Press Clause Needs Teeth: The Case For Strengthening Constitutional Press Protections At Protests, Ryan Liston

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

Journalists and the government have often had a tense relationship because of journalism’s watchdog role. In recent years, that tension has reached a boiling point. Law enforcement arrested journalists at an unprecedented rate in 2020, primarily while they were covering racial justice protests after Minneapolis police officer Derek Chauvin murdered George Floyd. Given the press’s watchdog role, the presence of journalists at protests criticizing government action (such as police brutality) is particularly important. Moreover, law enforcement seemingly targeted the press at these protests, even when they clearly presented themselves as journalists. In Minnesota and Oregon, hotspots for these protests, courts …

Environmental Destruction And Human Rights Abuses In The Democratic Republic Of The Congo: Examining The Epicenter Of The Cobalt Mining Industry From An International Criminal Law Perspective, Joe Udell

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

No abstract provided.

Urgenda, Milieudefensie, And The Impact Of Climate Change Litigation On Global Trade Policy, Maria Saracino-Lowe

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

No abstract provided.

Cultivating Sense: Cultural Change In The Prosecutor's Office, Shih-Chun Steven Chien

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

Prosecutors exercise broad discretion. They are widely viewed as the gatekeepers of the criminal justice system. To date, studies on prosecutors in different jurisdictions have largely focused on how to conceptualize, manage, and eventually control the exercise of prosecutorial discretion. Scholars have recently turned their attention to the importance of internal organizational management and leadership’s role in changing office culture as a means to regulate prosecutorial discretion. But we have limited empirical evidence as to how changes occur within a prosecutor’s office and what precise role organizational leaders play during this process. This Article constructs a new paradigm for the …

Benchmarks For Reducing Civilian Harm In Armed Conflict: Learning Feasible Lessons About Systemic Change, Peter Marguiles

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

No abstract provided.

Estados Unidos Mexicanos V. Smith & Wesson Brands, Inc. Et Al.: How American Exceptionalism Emanates Beyond Its Borders, Maleah Riley-Brown

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

No abstract provided.

Trade-Based Regulation Of Space Resources, Jamie G. Mcwilliam

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

No abstract provided.

Economic Sanctions In Afghanistan: Does It Still Make Sense?, Zachary Taylor

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

No abstract provided.

Labor Control, Resistance, And The Advent Of 'Development': Modalities Of Governance In The British Empirce, C. 1926-1940, Christopher M. Roberts

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

This article examines the manner in which a new approach to governance, that of ‘development,’ evolved within the British Empire over the course of the late 1920s and 1930s. Throughout the period in question, and in continuity with previous periods, the British governed their empire through a range of coercive measures designed to control the population and compel their labor. Measures adopted and frequently relied upon included the delegation of police powers to private authorities, restrictive and extractive tax, movement and labor laws, recourse to forced labor, increasing reliance on militarized police, and growth in the intelligence services. Over the …

The Importance Of Exit Via Acquisition To Venture Capital, Entrepreneurship, And Innovation, Devin Reilly, D. Daniel Sokol, David Toniatti

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

Antitrust regulators around the world, including in the UK, have proposed changes to merger review policies that impact how acquisitions of start-ups would be investigated and evaluated. Such changes will likely lead to heightened scrutiny—and increased costs and longer reviews—for many acquisitions, including both horizontal and non-horizontal mergers. In evaluating the merits of such changes, it is critical to take into account the important role that exit via acquisition plays in providing incentives for venture capital (VC) investment and entrepreneurship. This article seeks to provide context for evaluating the effects of such proposed changes. First, it documents the links among …

A Central Counterterrorism Coalition: An Analysis Of Intelligence Sharing And The Challenges It Faces In The European Union, Elisabeth Bernabe

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

No abstract provided.

The Eu's Cbam, Complying With The Cbdr Principle Could Also Mean Compliance With Wto Law, Carlos A. Alonso Gayon

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

No abstract provided.

A Behaviorial Economics Analysis Of Will Making Preferences: When To Begin And Who Should Have The Most Input?, Tina Cockburn, Kelly Purser, Ho Fai Chan, Bridget J. Crawford, Stephen Whyte, Uwe Dulleck

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

No abstract provided.

The Targeting Of Underseas Communications Cables: Armed Conflict, Developing States, And The Need For A Twail Approach, Stephen Floyd

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

No abstract provided.

Keeping Children With Their Parents: How U.S. Immigration Law Fails To Uphold The International Right To Family Unity, Michael Duchesne

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

No abstract provided.

Nonexclusive Functions And Separation Of Powers Law, Ilan Wurman

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

The Constitution’s text, structure, and history suggest that some governmental functions strictly and exclusively appertain to a particular branch, and to the exercise of a single vested power. Many governmental functions, however, are nonexclusive: their exercise has some combination of legislative, executive, and judicial characteristics and, as a result, can be exercised by different branches exercising different vested powers. This Article proposes to reorient our thinking around exclusive and nonexclusive governmental functions, and demonstrates how doing so clarifies many existing doctrines and debates in administrative and separation of powers law. This approach differs in important respects from standard functionalist and …

Essential Property, Timothy M. Mulvaney, Joseph William Singer

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

For a sizable swath of the U.S. population, incomes and wealth are insufficient to cover life’s most basic necessities even in the most ordinary of times. A disturbingly resilient explanation for this state of affairs rests on the view that resource inequities are avoidable through self-reliance, a stance that invites observers to see people in poverty as morally suspect. This Article advances a counterview in contending that the widespread lack of essential resources did not simply arise naturally via individuals’ life choices but instead has been, in very meaningful part, created and perpetuated by our system of property laws. The …

Say It Ain’T Roe: Dobbs And Reason Bans Are Trojan Horses For The Down Syndrome Community, Calvin Lee

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

In recent times, one of the most in vogue methods for curtailing abortion rights has been through the enactment of “reason bans,” statutes precluding abortions if the procedure is being sought due to the sex, race, or potential genetic abnormality of the fetus. This note_comment focuses on the contemporary litigation and discourse concerning reason bans’ genetic abnormality prong. In the immediate lead-up to the Supreme Court’s ruling in Dobbs, several reason ban statutes faced facial challenges in federal court, with the plaintiffs alleging that the statutes violated Casey’s undue burden standard by imposing categorical prohibitions on pre-viability abortions. Reason ban …

Minimum Deadly Contacts, Jesse Noltimier

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

Domestic violence is a national epidemic. Roughly one in three women will experience some form of domestic violence during their lifetime. Women are also seventy times more likely to be killed in the two weeks after leaving their intimate partner than at any other time during their relationship. Thus, it is not surprising that the only safe haven available to those who escape their abusers is often located outside of the state where the violence occurred. The difficulties do not end once a survivor moves to another state. If she wants to obtain a lifesaving domestic violence protection order, she …

Brady Lists, Rachel Moran

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

Brady lists, named after the Supreme Court’s 1963 decision Brady v. Maryland, are lists some prosecutors maintain of law enforcement officers with histories of misconduct that could impact the officers’ credibility. The lists serve as tools for prosecutors to track officer misconduct and disclose that information to defense counsel where appropriate. Although Brady lists have existed in some form for decades, they have garnered considerably more attention and controversy in the past several years. Brady lists are the subject of extensive media interest and litigation, but surprisingly little legal analysis or scholarship. This article provides a thorough examination into laws …