The New York v. Actavis decision created the coercion test as an intermediate step toward characterizing product-hopping as an antitrust offense. This Note argues that, through the introduction of the coercion test, Actavis deemphasized the importance of consumer benefits flowing from innovation””whether trivial or substantial””in the demand-side antitrust analysis. Further, the coercion test, defined in…

The California Supreme Court held, in the landmark case California Building Industry Association v. City of San Jose, that the City of San Jose’s inclusionary housing ordinance is a valid exercise of the City’s police power. In the context of legal precedent, the California Supreme Court decided the case correctly by applying a lenient standard…

This Comment discusses J.S. v. Village Voice Media Holdings, arguing that the Washington Supreme Court erodes the safe harbor provision of the Communications Decency Act (CDA) of 1996 in this decision. As affirmed by several circuits, the CDA exempts websites and other interactive computer services from liability over third-party content so long as they…

This Comment discusses the implications of McCutcheon v. FEC, arguing that Justice Roberts’s opinion, coupled with Citizens United v. FEC, eviscerates campaign finance laws. The plurality’s position drastically contravenes public policy, overlooks its own precedent, and erroneously ignores McCutcheon‘s inevitable effects.

A judicial decision striking down formalized discrimination marks a crucial moment for those it affects and, in some instances, for the surrounding society as well. The Supreme Court’s ruling in Obergefell v. Hodges was unquestionably one of those instances. This essay considers the distinct ways in which the civil rights and social movements for…

The battle over same-sex marriage centered on children, with both sides claiming to be the guardians of children’s welfare. Although marriage equality undoubtedly represents a victory for diverse families, the focus on children has also had the detrimental impact of imposing a traditional parenthood paradigm. Specifically, the Obergefell v. Hodges opinion reflects a maternalist…

This essay critically assesses Justice Kennedy’s opinion in Obergefell v. Hodges, which declared unconstitutional state laws and constitutional provisions barring same-sex couples from lawfully marrying in the state or having their lawful out-of-state marriages recognized by the state. While acknowledging the important role that Justice Kennedy has played in advancing the cause of gay…

In this essay, I measure the majority’s opinion in Obergefell v. Hodges against two legacies of second-wave feminist legal advocacy: the largely successful campaign to make civil marriage formally gender-neutral; and the lesser-known struggle against laws and practices that penalized women who lived their lives outside of marriage. Obergefell obliquely acknowledges marriage equality’s debt…

In declaring state laws that restrict same-sex marriage unconstitutional, Justice Kennedy invoked “dignity” nine times””to no one’s surprise. References in Obergefell to “dignity” are in important respects the culmination of Justice Kennedy’s elevation of the concept, dating back to the Supreme Court’s 1992 decision in Planned Parenthood v. Casey. In Casey, “dignity” expressed respect…

This comment examines the recent Ninth Circuit case, Desertrain v. City of Los Angeles. The Ninth Circuit seeks to establish a standard that prohibits discretionary enforcement of city municipal codes against homeless people, removing one tool that cities use to keep homeless people out of public spaces. However, the court does not provide cities…

In this essay, I argue that marriage, as described and prescribed in Obergefell v. Hodges, functions as a lens that distorts the principles of liberty and equality upon which the opinion is based. The Supreme Court’s language is saturated with paeans to marriage, to the degree that the opinion seems to suggest that the…

The Department of Justice (DOJ) recently argued that immigrants who have not been legally admitted to the United States have no right to claim protections under the First Amendment. The DOJ built its argument on conflicted case law governing immigrants’ constitutional rights. This Essay argues that, contrary to the DOJ position, all people in…

In Integrity Staffing Solutions, Inc. v. Busk, the Supreme Court held that post-work security screenings were noncompensable under the FLSA because they were neither the primary activity that the employees were hired to perform nor “integral and indispensable” to that activity. Following a discussion of the Court’s decision, this Comment calls for a reconsideration of…

This essay renews the debate on the relevance of a literary sensibility to legal practice. Instrumental modalities of legal reasoning inform – and limit – what may count as legal facts. I reference the pattern of high-profile cases at the intersection of race and law enforcement to argue that the strategic description of setting in…

Historically, radio broadcasters have never paid royalties to rightsholders in sound recordings made before 1972 because it was assumed that there were no public performance rights for such recordings. This was challenged recently when former Turtles members, Flo & Eddie, brought suit in California against Sirius XM, successfully arguing that state law confers a public…

This essay, written as a response to Ryan Calo’s valuable discussion in “Robotics and the Lessons of Cyberlaw,” describes key problems that robotics and artificial intelligence (AI) agents present for law. The first problem is how to distribute rights and responsibilities among human beings when non-human agents create benefits like artistic works or cause harms…

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…