The Supreme Court has been taking advantage of mixed speech “speech that is both private and governmental” to characterize challenged speech in the way that permits the government to sponsor Christian speech. In Pleasant Grove City v. Summum, a free speech case where the government accepted a Christian Ten Commandments monument but rejected a Summum Seven Aphorisms…

This essay examines how the Fifth Amendment Self-Incrimination Clause applies to encrypted data. In particular, it focuses on the Clause’s foregone conclusion exception, which allows the government to compel the production of information where the government reasonably knows that information exists. This essay argues that, under this exception, the government can compel a person to…

The Ninth Circuit recently ruled that a company announcement of an internal investigation is insufficient to establish a loss causation theory in a securities fraud action under section 10(b) of the Exchange Act. Specifically, it stated that an announcement of an investigation is not a corrective disclosure“”an event that discloses a company’s fraud. This Comment…

With the Supreme Court poised to address the fate of the disparate impact theory this term, a recent decision by the U.S. District Court in the District of Columbia has grabbed the legal community’s attention: it struck down the U.S. Department of Housing and Urban Development’s (HUD) rule recognizing the disparate impact theory under the…

This note contends that federal law should preempt state and local laws that regulate where undocumented immigrants may reside within the United States. In Keller v. City of Fremont, the Eight Circuit recently upheld a local ordinance prohibiting undocumented immigrants from renting housing within the boundaries of the city of Fremont. Though the U.S. Supreme…

The mascot and team name of the Washington, D.C. professional football team is making headlines. What do Authentic Indians really think about it? This essay clears the air by replacing the liberal media talking points with an actual viewpoint from Indian Country. This perspective gives an inside view into the significant efforts to maintain longstanding…

The rise of cost-benefit analysis (CBA) in the administrative state has been one of the most important administrative developments over the past few decades. Today, regulatory agencies proposing significant new rules must perform a CBA for review by the White House’s Office of Information and Regulatory Affairs (OIRA). This institutionalization of CBA can enhance the legitimacy of agency…

In 1972, the Supreme Court in Stanley v. Illinois declared that parents are entitled to a hearing on their fitness before the state places their children in foster care, but for decades family courts would not apply this precedent to non-offending parents in child protection cases. Without even citing Stanley, courts held that finding…

The Supreme Court’s decision in Shelby County v. Holder striking down part of the Voting Rights Act of 1965 has sparked debate over voting, race, history, and, surprisingly, footnotes. This Essay examines Westlaw’s characterization of the Court’s earlier decision upholding the VRA in South Carolina v. Katzenbach…

In response to Ezra Rosser’s article, The Ambition and Transformative Potential of Progressive Property, 101 Calif. L. Rev. 107 (2013), Timothy Mulvaney expresses more confidence than does Rosser in property’s potential to serve a role in furthering a progressive society. If property is to serve in this role, however, Mulvaney suggests it is important…

Schuette v. Coalition to Defend Affirmative Action, the Supreme Court’s 2014 decision on race in university admissions, attracted considerable attention due to the sharp disagreement about race consciousness between Chief Justice John Roberts and Justice Sonia Sotomayor. But behind the evident division on the Court about the race, a close reading of Schuette indicates…

Scholars and judges have long debated whether antitrust law requires dominant firms to share so-called “essential facilities” with rivals. In her final paper, the late Professor Suzanne Scotchmer and coauthor Stephen M. Maurer argue that the doctrine should return to its historic focus on industries where sharing promises important — and otherwise unachievable…

The SEC and the Judiciary are at odds over whether an individual must report potential securities law violations directly to the SEC in order to qualify as a whistleblower under the Dodd-Frank Act. This Essay examines the statutory language at the heart of the conflict, the SEC regulation that potentially clarifies the scope of whistleblower…

Are we entering an era where investors can acquire an equity stake in an individual? A new family of marketplace transactions provides individuals with financing for business, entrepreneurship, education, or diversification purposes in return for the individual’s promise to pay a percentage of her income for a period of years. This Essay briefly discusses the…

This essay addresses the issue of transparency in the judiciary regarding the sealing of applications for electronic surveillance. Specifically, it concerns the experiences of a federal magistrate who attempted to unseal a number of surveillance applications and orders…

For years, the Supreme Court and the Federal Circuit have dismissed state law claims by small inventors on the grounds that federal patent law preempts state laws offering patent-like protections. Recently, David Wawrzynski, a man who claims he invented the idea for Heinz’s new “Dip & Squeeze®” ketchup packet, filed state law claims against…

The Supreme Court recently revisited the scope of the Fifth Amendment’s Takings Clause–this time, in the land-use permitting context. In this Case Note, the author argues that the Court in Koontz v. St. Johns properly prioritized the right at issue over the means by which the government might infringe upon it and…

In this Case Note, the author examines the D.C. Circuit’s decision in United States v. Duvall, a case that illustrates the difficulty the D.C. Circuit has had in interpreting the Supreme Court’s plurality decision in Freeman v. United States. The author analyzes the Supreme Court’s method for interpreting plurality decisions, the Marks rule, and…

In this article, Professor Tracy Thomas examines the various ways in which states address same-sex divorce, and highlights the different reasoning that courts have employed to allow same-sex couples to dissolve their unions, even in states that do not recognize same-sex marriage.

Professor Fredrick Vars criticizes the Supreme Court’s recent decision in Metrish v. Lancaster. That case broadened the prohibition on introducing evidence of mental illness to negate intent in criminal cases. Because many states allow evidence of intoxication on intent, Professor Vars argues that it is illogical and unfair…