Law Commons^™

The New Abortion Borders For Immigrant Women, Valeria Gomez

Minnesota Journal of Law & Inequality

No abstract provided.

An Examination Of Public Benefit Enrollment Data In Minnesota Immigrant Households As Evidence Of Public Charge Chilling Effect, Ana Pottratz Acosta

Minnesota Journal of Law & Inequality

No abstract provided.

Thinking Beyond Confinement: The Suspension Of Minnesota’S 48-Hour Law And The False Choice Between Incarceration Or Institutionalization, Sophie Herrmann

Minnesota Journal of Law & Inequality

No abstract provided.

Forced Arbitration In The Fortune 500, David Horton

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

As the Federal Arbitration Act (FAA) nears its centennial, its most controversial byproduct—forced arbitration—has entered uncharted territory. For years, companies exploited their power over fine print to produce ambitious dispute resolution regimes. This trend reached its apex in the 2010s, when the Supreme Court held that arbitration is incompatible with class actions and gave its blessing to delegation provisions, which allow the arbitrator to decide whether a case must be arbitrated. But around 2020, the dynamic changed. Plaintiffs’ lawyers discovered a tactic called “mass arbitration” that gains settlement leverage by bombarding defendants with scores of individual claims. In addition, Congress …

Building Bridges: Queer Rights In And Out Of The Courts, Kaz Lane

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

It is unclear whether the Equal Protection Clause of the Fourteenth Amendment prohibits states from differentiating between people based solely on their sexual orientation and/or gender identity. This note_comment analyzes the Supreme Court’s tiers of scrutiny—rational basis review, intermediate scrutiny, and strict scrutiny—to argue that a new suspect class is warranted for sexual orientation and gender identity (SOGI), triggering strict scrutiny for SOGI classifications. This analysis shows that a united SOGI class meets all of the characteristics associated with suspect classes, including a history of anti-LGBTQIA+ discrimination and the irrelevance between SOGI and one’s ability to contribute to society. This …

Closing In On The Patent Troll: State Legislatures’ Role In Combatting Trolling Behavior, Will Roberts

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

In the United States, entities known as patent trolls purchase patents solely for the purpose of threatening and bringing litigation and present a significant threat to innovation and economic progress. The question is: Who will rise to the occasion and stop them? In the face of federal inaction, state legislatures have stepped in, enacting laws to combat bad faith assertions of patent infringement. This note_comment examines the efficacy and constitutionality of state anti-patent troll statutes, analyzing how they operate within the broader framework of federal patent law. State legislatures have taken various approaches to address patent trolling. Some statutes have …

Suspecting With Data, Mary D. Fan

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

Our pooled consumer big data, such as the pictures we post or the location history and keyword search trails we leave, are generating new ways to solve crimes. Much of the commentary on big data search strategies such as keyword, geofence, and facial recognition searches fixate on Fourth Amendment search and seizure issues rather than evidentiary safeguards. This Article breaks new ground by framing evidentiary guardrails for big data searches to reduce the harms of erroneous arrests, redress secrecy, and counteract the mystique of machine infallibility. Advancing beyond over-reliance on Fourth Amendment doctrine, this Article illuminates how evidence law and …

Racial Disparities In Crime-Based Removal Proceedings, Emily Ryo, Ian Peacock, Weston Ley, Christopher Levesque

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

Whether and to what extent racial minorities experience harsher treatment or face worse outcomes in court are questions of fundamental importance for any justice system. Questions of racial inequality are especially salient in the context of removal proceedings that are triggered by immigrants’ criminal history. Many individuals in crime-based removal proceedings are immigrants of color who face a host of legal disadvantages that are tantamount to double penalties for the same crime for which they have already been punished through the criminal justice system. This Article offers, for the first time, systematic empirical analyses of crime-based removal proceedings decided between …

Toward A Dynamic View Of Corporate Purpose, Dorothy Lund

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

Scholars debating the corporation’s role in society generally advance the view that there is only one desirable orientation for corporations and their management. Specifically, proponents of a stakeholder governance model contend that focusing management on a broad set of corporate constituents maximizes overall welfare, while advocates of a shareholder-centric directive counter that prioritizing shareholders creates social welfare by rendering the firm most profitable. This Article offers another view: It suggests that the welfare-maximizing purpose for corporations could change depending on external economic conditions, which both of these positions assume away. Specifically, shareholder primacy is likely to promote welfare in a …

Against Attorney General Self-Referral In Immigration Law, Stella Burch Elias, Paul Gowder

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

This Article advances a rule-of-law-based critique of the Attorney General’s immigration self-referral power. We argue that the Attorney General’s self-referral and review power over pending immigration proceedings allows an appointed Executive Branch official to engage in unchecked and unilateral lawmaking and, therefore, should be abolished. Scholars have typically understood legal stability, prospectivity, and the separation of policymaking from adjudication as requirements of the Anglo-American rule of law regime which protect individual freedom and equality. It is traditionally believed that by limiting policy-driven legislation to prospective, general laws which are enacted through an explicitly legislative process, individuals may be secure against …

Minimal Justiciability, Riley T. Keenan

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

Federal courts adjudicate only justiciable disputes. But justiciable as to whom? The Supreme Court has hinted at an answer, holding that at least one plaintiff must show standing for each remedy sought in a federal case. But it has never explained this “one-plaintiff rule,” and recently some scholars have criticized it, arguing that Article III instead requires each plaintiff to show standing in every federal case. This Article offers the missing explanation. Justiciability limits judicial power, it contends, and judicial relief is the constitutionally relevant expression of that power. Thus, Article III requires only one plaintiff with standing and a …

Judging Demeanor, Kiel Brennan-Marquez, Julia Simon-Kerr

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

This Article challenges the conventional wisdom that defendant demeanor—affect, body language, and physical appearance—helps juries assess guilt. On the contrary, we show that demeanor evidence poses an inherent risk of propensity-based reasoning. It invites jurors to convict defendants based on whether they “look like criminals,” rather than on the actual facts of the case. In doing so, demeanor evidence facilitates cultural and racial subordination. It enables members of dominant groups—consciously or not—to penalize members of less-dominant groups for failing to appear innocent or credible. We argue that existing law has things backwards. It treats defendant demeanor as presumptively useful and …

A Democratic Participation Model For Corporate Goverance, Grant M. Hayden, Matthew T. Bodie

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

Corporate law is in the grip of a fundamental conundrum: whether corporations should seek only to serve shareholders or instead attend to the interests of all stakeholders. The doctrine of shareholder primacy, which focuses the corporation’s attention on the goal of maximizing shareholder wealth, has been startingly successful, capturing the theory and practice of corporate governance for roughly fifty years. But recently the costs of this monomaniacal focus on the financial interests of one set of corporate participants have become clearer. At a time when the original reasons for restricting the corporate franchise to shareholders have been shown to rest …

Legal Academia's White Gaze, Renee Nicole Allen

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

For Black law faculty, Blackness, the Black experience, and Black legal and social identity are not trends. Yet, there are inflection points where legal scholarship about race, particularly Blackness, is in vogue. The most recent rise in such legal scholarship came in the aftermath of George Floyd’s murder and the worldwide Black Lives Matter protests in 2020. When antiracist sentiment is high, the regard for scholarship central to the personhood of Black legal scholars is high. Even then, there is an expectation that Black authors write in ways that conform to the White norms of legal scholarship. Though central to …

Asking The Rights Questions: An Emgerency Action Exception To The Major Questions Doctrine, Mark Hager

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

Congress delegates broad discretionary power to administrative agencies to respond to emergency situations, taking advantage of their extraordinary expertise and response speed. Yet these delegations are defined by a judicial rule known as the “Major Questions Doctrine.” The Major Questions Doctrine seeks to protect the separation of powers by preventing excessive use of executive power without clear delegation by Congress. Where a “major question” of vast economic or political significance is raised, it requires “clear” authorization in the delegating statute. During COVID-19, the Supreme Court used the doctrine to strike down several response programs, including: the Center for Disease Control’s …

Equity For American Indian Families, Neoshia R. Roemer

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

For the better part of two centuries, the cornerstone of federal Indian policy was destabilizing and eradicating tribal governments. In the process, federal Indian policy also dismantled American Indian families via child removal. Attempting to equalize American Indians through the practice of assimilation, decades of Indian child removal policies destroyed Indian families. In 1978, Congress responded to these horrors by passing the Indian Child Welfare Act (ICWA), a revolutionary law that was responsive to its trust responsibility to American Indian Tribes. By providing for the best interests of Indian children, heightened protections for parents of Indian children in certain child …

Who Watches The Watchers?: Finra, Self-Regulatory Organizations, And The Next Evolution Of Appointment And Removal Jurisprudence, Hans M. Frank-Holzner

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

There are private, non-profit corporations exercising significant executive power. Known as self-regulatory organizations (SROs) these non-governmental organizations make binding rules and sometimes enforce statutory law governing massive industries. One such SRO is the Financial Industry Regulatory Authority (FINRA). In 2022 alone, FINRA permanently barred 227 individuals and suspended 328 individuals from the financial industry, imposed $54.5 million dollars in fines, ordered $26.2 million dollars in restitution, and referred 663 cases for prosecution. FINRA’s regulatory jurisdiction is massive. In 2022, it oversaw 3,378 securities firms including 150,647 branch offices and 620,882 individuals nationwide. This immense power is wielded not by the …

From Bots To Ballots: Democratic Integrity In The Era Of Digital Manipulation, Dalit Ken-Dror Feldman, Yifat Nahmias

Minnesota Journal of Law, Science & Technology

No abstract provided.

Let’S Be Cool About It: Anticipating Proper, Whole-Human Cryopreservation And The Necessary Oversight For Adequate Consumer Protection, Peter Lyon

Minnesota Journal of Law, Science & Technology

No abstract provided.

I Am Become Meme, Manipulator Of Markets: An Analysis Of Elon Musk’S Tweets Under The Anti-Manipulation Provisions Of U.S. Securities Laws, Noah Schottenbauer

Minnesota Journal of Law, Science & Technology

No abstract provided.

Forgotten Victims: Exploring The Right To Family Integrity As A Form Of Redress For Children Of Wrongfully Convicted Parents, Emily Byers Olson

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

Almost five million children in the United States have had a parent incarcerated at some point in their lives. Children who grow up with an incarcerated parent face immense challenges, including mental health issues, problems at school, economic hardship, and the propensity to participate in criminal activity themselves. When it turns out that the child’s parent was wrongfully convicted and incarcerated for a crime they did not commit, the challenges faced by the child are even more devastating. One way that a child may be able to obtain a remedy in these instances is through their due process right to …

"Key" Tam: Giving Teeth To Federal Data Security Enforcement, Brandon Stottler

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

Data breaches wreak havoc on data-handling entities, weigh heavily on the minds and hearts of breach victims, and elude the efforts of regulators and scholars alike. Since 2005, declared the “Year of the Data Breach,” every year has seen an increase in the number and impact of breaches. Data breaches cost United States companies billions of dollars, undermine consumer confidence, exacerbate geopolitical tensions, increase anxiety, and even result in bodily harm and death. Nevertheless, a suitable federal framework has yet to be enacted to address the perennial problem. Though the data breach epidemic may seem like a recent phenomenon—a biproduct …

Law For The Rich, Alex Raskolnikov

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

With top incomes and wealth reaching historic highs, scholars and politicians have proposed new taxes and novel legal rules aimed at reversing the emergence of the new Gilded Age. Yet while new taxes target the rich directly by imposing greater burdens only on those with incomes or wealth above multi-million-dollar thresholds, none of the proposed legal reforms do anything of the sort. There appears to be no interest in changing property law, corporate law, antitrust law, or labor law, among others, to have special, more burdensome rules applicable only to the rich. This Article asks: Why not? Why shy away …

Diversity Messaging After Affirmative Action, Nancy Leong

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

Many colleges and universities communicate publicly that they value racial diversity—a practice this Article will call diversity messaging. Yet growing hostility to race-consciousness by courts, legislators, and other public figures has made diversity messaging increasingly fraught.

This Article examines empirically whether law schools changed their diversity messaging following the Supreme Court’s decision in Students for Fair Admissions v. Harvard (SFFA), and, if so, how. I surveyed three sources of diversity messaging from law schools: admissions materials, hiring announcements, and DEI websites. Analysis of these materials revealed that schools significantly reduced or eliminated their diversity messaging after SFFA. Seventy-three percent of …

Unpunishment Purposes, Meredith Esser

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

Sentencing scholarship often begins by exploring the traditional purposes of punishment: deterrence, retribution, incapacitation, and rehabilitation. However, little scholarship exists addressing how these four punishment purposes apply in the post- sentencing or second-look contexts. Further, abstract theories of sentencing can often seem sterile and disconnected from the realities of how violent, disproportionate, and dehumanizing the actual experience of incarceration is for many people, and tend to downplay the impact of incarceration on the families and communities of those who are incarcerated. This Article attempts to reconceptualize the traditional purposes of punishment to meet the current historical moment, and it does …

Investor Justice, Nicole Iannarone

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

There is a systemic flaw in the investor protection landscape. Unrepresented investors face off against well-resourced repeat- player firms that almost always have lawyers. While consumers face similar challenges in civil courts, in forced securities arbitration, the decisionmaker may not have a law degree, is prohibited from conducting any outside legal research, and has no monetary incentive to read materials the parties submit. These realities amplify already-existing informational and resource asymmetries between Main Street investors and stockbrokers and undermine the market-legitimizing function of securities arbitration. Despite being designed to permit investors to recoup losses without the aid of an attorney, …

Debt, Work, And The State, Kate Sablosky Elengold

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

In every state and the District of Columbia, an individual who owes a debt to the state can lose their license to work. Without the ability to make a living, it is much harder to pay off debt. Although using occupational license restrictions as a debt collection tool appears nonsensical, it has never before been the subject of scholarly debate. This Article thus begins an important conversation about debt, work, and the state.

This Article identifies the pervasive authority that state and local governments have to revoke an individual’s occupational license solely because that person owes a debt to the …

150 Years Of Detox: How Inadequate Dietary Supplement Regulation Undermines Consumer Safety In The Weight Loss Industry, Chloe Chambers

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

Prior to the passage of the Pure Food and Drug Act of 1906, the American food and drug market was a proverbial “wild west,” fraught with charlatans, snake oil salesmen, and manufacturers cutting costs at the expense of consumers. The Pure Food and Drug Act, along with the Food, Drug, and Cosmetics Act of 1938 took steps to address this problem, creating the modern food and drug regulatory scheme. While American food and drugs are markedly safer now than they were 150 years ago, the Dietary Supplement Health and Education Act of 1994 has prevented dietary supplement safety from keeping …

Protecting Minnesota's Whistleblowers: Ending The Application Of Mcdonnell Douglas To The Minnesota Whistleblower Act, Eddie C. Brody

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

Whistleblowers are critical to society, speaking out to protect the public from corporate and government wrongdoing. Employers often retaliate against employees who speak out, attempting to deter employees from blowing the whistle. Whistleblower protection statutes seek to protect those who suffer from retaliation, providing a judicial remedy for whistleblowers. The Minnesota Whistleblower Act affords these protections in Minnesota and allows whistleblowers to bring claims against their employers for retaliation. In Minnesota, whistleblowers are held to a higher, more challenging standard than whistleblowers in other states. Minnesota state courts apply a federal standard at summary judgment, creating an undue barrier for …

Critical Curriculum Design: Teaching Law In An Age Of Rising Authoritarianism, Rachel López

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

No abstract provided.