Blog

Publication Type: Note

May 17th, 2018 | Issue 6 Volume 96

A Baptism by Incentives

For over sixty years, wildland fires in the United States have been consuming American land to an ever-increasing extent:[1] from January 1 through March 31 of 2017 alone, over two million acres of U.S. earth were scorched by wildfires.[2] According to the U.S. Environmental Protection Agency, nine out of the ten years with the highest burned […]

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May 17th, 2018 | Issue 6 Volume 96

Good Transmission Makes Good Neighbors

Barriers to cross-border transmission on the United States–Mexico border, including labyrinthine permitting processes, have long impeded the development of valuable border-region power infrastructure. The historical origins of the electric power regulatory system offer some guidance for why the presidential permitting system exists in its present, tangled form. Recently, legislators have renewed efforts to amend cross-border […]

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April 05th, 2018 | Issue 5 Volume 96

Becoming Penelopes

Introduction The United States has a long, complicated relationship with juries.[1] While particular jury verdicts encounter disbelief or even hostility, the system itself is generally praised as a protector of justice and other key democratic values. Yet even the staunchest defenders of the jury system admit it is imperfect, and very few expect the system […]

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March 11th, 2018 | Issue 4 Volume 96

“The Irons Are Always in the Background”

[1] Introduction Convicted sex offenders who have served their criminal sentence must, upon release, navigate “a byzantine code [that] govern[s their lives] in minute detail.”[2] Sex offender post-release (SOPR) laws impose affirmative obligations on sex offenders[3] that extend far beyond any sentence of incarceration, often lasting the person’s lifetime.[4] SOPR laws require sex offenders to […]

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March 11th, 2018 | Issue 4 Volume 96

The USPTO’s Sisyphean Plan

And I saw Sisyphus at his endless task raising his prodigious stone with both his hands. With hands and feet he tried to roll it up to the top of the hill, but always, just before he could roll it over on to the other side, its weight would be too much for him, and […]

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February 10th, 2018 | Issue 3 Volume 96

Addiction, Criminalization, and Character Evidence

A drug addict’s addiction is no defense to drug crimes. Criminal law rejects the disease model of addiction, at least insofar as the model would inform the Eighth Amendment, the voluntary act doctrine, or the insanity defense. This Note does not take issue with the criminalization of addiction, arguing merely that it should preclude evidence […]

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February 10th, 2018 | Issue 3 Volume 96

Reevaluating the Path to a Constitutional Right to Appointed Counsel for Unaccompanied Alien Children

Introduction The current border crisis has raised pressing questions about the adequacy of America’s immigration laws and its handling of immigration cases. One of these issues is to what extent unaccompanied alien children (UACs) should receive aid from the federal government: specifically, whether UACs are entitled to appointed counsel. As of now, UACs are denied […]

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December 21st, 2017 | Issue 2 Volume 96

A Shortcut to Death

Introduction It is no secret that the leveling of death sentences and the administration of the death penalty in the United States has rapidly declined in recent years.[1] In fact, the number of United States jurisdictions imposing a death sentence has declined by 55.7% in the last four years.[2] Notably, however, the state of Texas […]

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December 21st, 2017 | Issue 2 Volume 96

Insider Trading Enforcement & Link Prediction

Introduction The Securities and Exchange Commission (SEC) has taken a very aggressive stance towards insider trading enforcement, promising to be an unrelenting and omnipresent foe to those who seek to abuse nonpublic information at the expense of investors. But in reality, the SEC’s resources are limited. Until recently, the SEC was forced to rely on […]

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November 15th, 2017 | Issue 1 Volume 96

The Foreseeability of Human–Artificial Intelligence Interactions

Consider the following hypotheticals: A hospital uses artificial intelligence software to analyze a patient’s medical history and make a determination as to whether he or she needs surgery. One day, the artificial intelligence software incorrectly diagnoses a patient and recommends an unnecessary surgery. In preparation for the surgery, an anesthesiologist applies an incorrect dosage of […]

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May 16th, 2017 | Issue 6 Volume 95

Equity Crowdfunding of Film—Now Playing at a Computer Near You

Prior the SEC’s recent adoption of a crowdfunding exemption to various securities regulations, the ability to crowdsource funding in exchange for equity in a given venture was hampered by legal requirements that often made the concept prohibitively expense. Gold’s Note first examines the crowdfunding exemption and analyzes its potential impact on the financing of independent […]

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May 16th, 2017 | Issue 6 Volume 95

Revising Markman: A Procedural Reform to Patent Litigation

This Note presents a procedural reform to the current process of patent litigation in the United States, specifically focusing on claim construction and appellate review. This Note owes a great deal to John F. Duffy and his influential piece, On Improving the Legal Process of Claim Interpretation: Administrative Alternatives. Mr. Duffy’s article suggested how administrative […]

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May 16th, 2017 | Issue 6 Volume 95

Can Congress Authorize Judicial Review of Deferred Prosecution and Nonprosecution Agreements? And Does It Need To?

Existing legislation affords the federal judiciary a minimal role in overseeing prosecutors’ use of deferred prosecution agreements (DPA) and no role in overseeing nonprosecution agreements (NPA). The judiciary’s only potential foothold to review DPAs is the Speedy Trial Act. The Act provides for a time extension pursuant to a DPA but only “with the approval […]

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April 13th, 2017 | Issue 5 Volume 95

Criminal Convictions, and Those Who Are Still Left Behind

Crowell’s Note attempts to identify the problems created by discriminatory housing bars based on criminal convictions, the various reform efforts currently at work, and the potential inadequacies of the reforms based on the needs of those most at risk for recidivism. To that end, the Note begins by discussing the prevalence of housing discrimination in […]

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April 13th, 2017 | Issue 5 Volume 95

Damage Averaging—How the System Harms High-Value Claims

The disappearance of the American civil trial has paved the way for a new order of dispute resolution—one marked by alternatives such as arbitration, mediation, and, above all, settlement. Nowhere has that shift been seen more than in tort cases, where today less than 1% of all mass tort cases proceed to trial. As a […]

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April 13th, 2017 | Issue 5 Volume 95

Armed and Not Dangerous? A Mistaken Treatment of Firearms in Terry Analyses

Beginning with the Supreme Court’s decision in District of Columbia v. Heller in 2008, federal constitutional law has expanded to recognize constitutional protections for the individual possession of firearms. These new protections have profoundly affected Fourth Amendment law as well, as seen in the two-pronged analysis for conducting an investigatory stop pursuant to Terry v. […]

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April 10th, 2017 | Online Edition

Young Adults Are Different, Too: Why and How We Can Create a Better Justice System for Young People Age 18 to 25

In this note, Stamm argues for folding young adults into the juvenile justice system by reviewing the various ways in which many states have already taken the lessons of the juvenile system—lots of treatment and programming, age-limited facilities, shorter sentences, and sealed records—and applied them to the developmentally similar young adult population. PDF

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April 05th, 2017 | Issue 4 Volume 95

The Limits of International Organization Immunity: An Argument for a Restrictive Theory of Immunity Under the IOIA

This Note examines the current circuit split in the level of immunity afforded to international organizations under the International Organizations Immunities Act of 1945 (IOIA). Under the IOIA, designated international organizations may receive “the same immunity from suit and every form of judicial process as is enjoyed by foreign governments.” However, the Third Circuit and […]

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March 30th, 2017 | Issue 3 Volume 95

Cruel and Unusual Parole

In Graham v. Florida, the Supreme Court categorically barred life-without-parole sentences for juvenile defendants convicted of nonhomicide crimes, holding that such juvenile defendants must have “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Litigation is now testing whether Graham has created a new constitutional rule for the procedures and decisions of […]

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March 30th, 2017 | Issue 3 Volume 95

The Social Significance of Modern Trademarks: Authorizing the Appropriation of Marks as Source Identifiers for Expressive Works

Yaquinto’s Note develops an argument in favor of authorizing expressive trademark use based on the relationship between the social significance of modern trademarks and expressive works. Modern marks possess immense communicative power and transmit an array of information, much of which is derived from characteristics of the trademark owner as well as any underlying activities […]

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February 13th, 2017 | Online Edition

Killer Instinct

Introduction In July 2016, a remote-controlled robot ended a shootout in Dallas.[1] Negotiations between the suspected gunman and police had failed, and the police detonated explosives attached to a bomb disposal robot where the suspect was holed up; the explosion killed him.[2] The Dallas police chief explained the decision to use a “killer robot” as […]

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December 20th, 2016 | Issue 1 Volume 95

Wind Energy’s Dirty Word: Decommissioning

William Stripling’s note seeks to illustrate the general failure of current law to ensure decommissioning of America’s wind farms. He discusses the history and current landscape of domestic wind-energy generation, before focusing on the best practices in wind-farm decommissioning, aesthetic and environmental harms posed by abandoned wind farms, and the challenges and costs of removing […]

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December 20th, 2016 | Issue 1 Volume 95

Arbitration Unbound: How the Yukos Oil Decision Yields Uncertainty for InternationalInvestment Arbitration

Lena Serhan reviews a large dispute under the Energy Charter Treaty between an oil company and the Russian Federation, which resulted in the largest arbitration in history with $50 billion awarded to the oil company. However, Russia appealed the award to a Dutch district court, and in a surprising opinion, the court quashed the entire […]

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May 19th, 2016 | Issue 6 Volume 94

A Renewed Need for Collective Action: The Trust Indenture Act of 1939 and Out-of-Court Restructurings

The market for corporate debt has reached $8.2 trillion, a staggering 50% increase since the financial crisis. Yet regulators, and the laws they enforce, have not kept pace. In particular, the Trust Indenture Act of 1939 is particularly anachronistic with respect to out-of-court restructurings (or workouts): If a bond issuer wants to privately restructure its obligations, […]

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May 19th, 2016 | Issue 6 Volume 94

Answering the “Call to Service”: Encouraging Volunteerism by Protecting Doctors as We Protect Ourselves

In this Note, Jacy Selcoe considers how the lack of liability protection for volunteer medical providers impedes volunteering, and how healthcare providers might imitate volunteer protections use in the legal industry to increase volunteerism. First, she dissects the current volunteer healthcare liability regime, then looks at how the legal community protects its volunteers through a […]

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April 25th, 2016 | Issue 5 Volume 94

Seduction by Technology: Why Consumers Opt Out of Privacy by Buying into the Internet of Things

The Internet of Things (IoT) is an ever-growing system of personal technology devices that communicate with each other.  In so communicating, these devices relay information that is extremely personal to each individual user and is capable of doing great harm.  Despite the potential for harm, consumers continue to purchase these devices.  By doing so, they […]

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April 25th, 2016 | Issue 5 Volume 94

Expert Testimony and the Quest for Reliability: The Case for a Methodology Questionnaire

Although Daubert and Kumho Tire provide some guidance regarding how judges should evaluate expert testimony for reliability, they leave too much to the discretion of the judge. Under the present system, the reliability determination remains highly dependent on the judge’s own views of what is methodologically important—an opinion that may be no more qualified than […]

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April 13th, 2016 | Online Edition

Blackhorse Down: Do NFL Teams Need Trademark Protection?

In this Note, William Mason analyzes the economic effects of the Trademark Trial and Appeal Board’s decision to revoke federal trademark protection from the Washington Redskins and questions whether those effects are sufficient to force a change to the team’s name.  He argues that the protections and incentives provided by the NFL and collective bargaining […]

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March 27th, 2016 | Issue 4 Volume 94

The Writing Is on the Wall: How the Briseno Factors Create an Unacceptable Risk of Executing Persons with Intellectual Disability

In the Texas Court of Criminal Appeals’ 2004 decision Ex parte Briseno, the court laid out a new set of factors to determine if a capital defendant is intellectually disabled and thus ineligible for execution under the Supreme Court’s decision in Atkins v. Virginia.  In this Note, Hensleigh Crowell reviews trial court evidence and prevailing […]

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March 27th, 2016 | Issue 4 Volume 94

Protecting North America’s Past: The Current (and Ineffective) Laws Preventing the Illicit Trade of Mexican Pre-Columbian Antiquities and How We Can Improve Them

In this Note, Ryan Phelps explores the illicit trade of pre-Columbian antiquities between Mexico and the United States. He suggests that the current laws and recourses available that protect and deter the theft of Mexican pre-Columbian antiquities and these artifacts’ illegal import into the United States are ineffective at their goal of reducing these types of […]

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March 10th, 2016 | Issue 3 Volume 94

Sports for Boys, Wedding Cakes for Girls: The Inevitability of Stereotyping in Schools Segregated by Sex

Kelsey Chapple argues that in light of psychological research demonstrating that stereotypes flourish when groups are segregated on the basis of visible characteristics such as sex, all schools that are segregated on the basis of sex violate the Fourteenth Amendment’s guarantee against sex discrimination. Though the Supreme Court in United States v. Virginia left open […]

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March 10th, 2016 | Issue 3 Volume 94

The Route to Capitalization: The Transcendent Registration Exemptions for Securities Offerings as a Means to Small Business Capital Formation

After the economic downturn of 2008, Congress enacted the Jumpstart Our Business Startups Act (JOBS Act) with the purpose of improving job creation and economic growth. In this note, Paige Lager considers three significant measures that were adopted under the JOBS Act to effectuate these goals and weigh each against existing methods of capitalization currently […]

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March 10th, 2016 | Issue 3 Volume 94

Nudging Towards Vaccination: A Behavioral Law and Economics Approach to Childhood Immunization Policy

With anti-vaccine sentiments on the rise and decreasing vaccination rates, the risk of breakouts of preventable diseases like the Measles is on the rise. In this Note, Marysia Laskowski examines the behavioral biases that lead parents to decide not to vaccinate their children. She then examines those biases through the lens of behavioral law and […]

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March 09th, 2016 | Issue 2 Volume 94

Go, Fly a Kite: The Promises (and Perils) of Airborne Wind-Energy Systems

Commercial wind power generation is still, in many ways, an emerging technology. These few decades have provided little time to generate the laws, regulations, and judicial decisions that define other sectors of the energy industry. We still lack definitive answers to questions of property rights associated with wind generation and environmental impacts. Already, those questions […]

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March 09th, 2016 | Issue 1 Volume 94

Toward True Fair-Chance Hiring: Balancing Stakeholder Interests and Reality in Regulating Criminal Background Checks

Background checks often lead employers to discriminate against ex-offenders by giving these applicants lesser consideration, or even throwing out their applications altogether. But although ex-offenders are more likely to recidivate, there is little or no evidence that they will “act out” on the job, especially where their criminal record is unrelated to the job duties […]

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