Rattlesnakes, Debt, and ARPA § 1005: The Existential Crisis of American Black Farmers
Maia Foster & P.J. Austin
Dueling Dictionaries and Clashing Corpora
Kevin Tobia
We Can’t Talk About Race Unless We Also Talk About Art
Lavinia Liang
Catchall Policing and the Fourth Amendment
Nirej Sekhon
Spurious Pedigree of the “Valid-When-Made Doctrine”
Adam J. Levitin
Neuroscience and the Model Penal Code’s Mens Rea Categories
Andreas Kuersten & John D. Medaglia
Three Suggestions to Promote New Scholarship from an Outgoing Editor-in-Chief
Christian I. Bale
The Case For Chevron Deference To Immigration Adjudications
Patrick J. Glen
The Supreme Court’s Reticent Qualified Immunity Retreat
Katherine Mims Crocker
***
Probable Cause and Performing “For the People”
Irene Oritseweyinmi Joe
Othering Across Borders
Steven Arrigg Koh
Disagreement About Chevron: Is Administrative Law The “Law of Public Administration”?
Elizabeth Fisher and Sidney Shapiro
The Combination of Chevron and Political Polarity Has Awful Effects
Richard J. Pierce
Optimal Sludge? The Price of Price of Program Integrity
Cass R. Sunstein and Julien L. Gosset
Sex-Based Brain Differences and Emotional Harm
Betsy J. Grey
Religious Liberty in a Pandemic
Caroline Mala Corbin
***
Court Culture and Criminal Law Reform
Mitali Nagrecha, Sharon Brett & Colin Doyle
Criminalization of Poverty: Much More to Do
Peter B. Edelman
Kleptocracy Buyouts?: A Response to Professors Blocher and Gulati
Matthias Goldmann
Barricading the Immigration Courts
Jennifer Lee Koh
The Justices’ Forgotten Debuts
Andrew R. Gould
***
Forensics, Statistics, and Law: Ten Years After “A Path Forward”
Brandon Garrett
The Public Reception of the “Path Forward” Report
Steven Kendall
Forensics at the Federal Level
Sue Ballou
The Trajectory of Forensics
Peter Neufeld
Statistics and the Impact of the 2009 NAS Report
Karen Kafadar
Equal Dignity and Unequal Protection: A Framework for Analyzing Disparate Impact Claims
Kyle P. Nodes
Collateral Damage: Private Merger Lawsuits in the Wake of Section 2’s Contraction
Paul F. Brzyski
***
Intelligent Design & Egyptian Goddess: A Response to Professors Buccafusco, Lemly & Masur
Sarah Burstein
You Can Lead A Horse to Water: Heller And the Future of Second Amendment Scholarship
Eric Ruben & Joseph Blocher
The Constitutional Politics Heller Launched
Michael C. Dorf
Comment on Ruben and Blocher: Too Damn Many Cases, and an Absent Supreme Court
Sanford Levinson
Romanticism Meets Realism in Second Amendment Adjudication
Darrell A. H. Miller
A Close Reading of an Excellent Distant Reading of Heller in the Courts
George A. Mocsary
Is the Second Amendment A Second-Class Right?
Adam M. Samaha & Roy Germano
Collaborative Construction of a New Legal Field
Ronald F. Wright & Mark A. Hall
Data Indicate Second Amendment Underenforcement
David B. Kopel
* * *
Does The American Rule Promote Access to Justice? Was That Why It Was Adopted?
John Leubsdorf
Boiling Down Boilerplate in M&A Agreements: A Response to Choi, Gulati, & Scott
Robert Anderson & Jeffrey Manns
What Does Puerto Rican Citizenship Mean for Puerto Rico’s Legal Status?
Joseph Blocher & Mitu Gulati
Quantitative Legal History—Empirics and the Rule of Law in the Antebellum Judiciary
Alfred L. Brophy
Justice and Judgment Among the Whomever: An Anthropological Approach to Judging
John Conley
Evaluating Judges and Judicial Institutions: Reorienting the Perspective
Mitu Gulati, David E. Klein & David F. Levi
Evaluating Judges
Judge Harris Hartz
Talking Judges
Jack Knight & Mitu Gulati
Diversity, Tenure, and Dissent
Joanna Shepherd
Investigating Judicial Responses to Rules
Emily Sherwin
Distinguishing Causal and Normative Questions in Empirical Studies of Judging
Patrick S. Shin
Devising Rule of Law Baselines: The Next Step in Quantitative Studies of Judging
Brian Z. Tamanaha
* * *
Black Hole Apparitions
Lisa Bernstein
Pari Passu Clauses and the Skeumorph Problem in Contract Law
Douglas G. Baird
Cinderella Sovereignty
Anna Gelpern
Insurance Policies: The Grandparents of Contractual Black Holes
Christopher C. French
Administrative Rights in Institutional Perspective
Eloise Pasachoff
Living Constitutional Theory
Andrew Coan
Sports Betting Has an Equal Sovereignty Problem
Ryan M. Rodenberg & John T. Holden
The Asymmetry of Crimes By and Against Police Officers
Monu Bedi
A (Very Thin) Market for Sovereign Control
W. Mark C. Weidemaier
Blocher, Gulati, and Coase: Making or Buying Sovereignty?
Paul B. Stephan
Friendly and Hostile Deals in the Market for Sovereign Control: A Response to Professors Blocher and Gulati
John F. Coyle
Should We Buy Selling Sovereignty?
Stephen Clowney
Determining Classified Evidence’s “Primary Purpose”: The Confrontation Clause and Classified Information After Ohio v. Clark
J. Peter Letteney
PDF
Chevron Deference and Patent Exceptionalism
Christopher J. Walker
PDF
A response to Administrative Power in the Era of Patent Stare Decisis by Stuart Minor Benjamin & Arti K. Rai, and Working Without Chevron: The PTO as Prime Mover by John M. Golden, both printed in Vol. 65, Issue 8
Describing Drugs: A Response to Professors Allison and Ouellette
Jacob S. Sherkow
PDF
A response to How Courts Adjudicate Patent Definiteness and Disclosure by John R. Allison and Lisa Larrimore Ouellette, printed in Vol. 65, Issue 4
Growing Up with Scout and Atticus: Getting from To Kill a Mockingbird Through Go Set a Watchman
Robert E. Atkinson, Jr.
PDF
Professor Atkinson’s follow-up to his Liberating Lawyers: Divergent Parallels in Intruder in the Dust and To Kill a Mockingbird, printed in Vol. 49, Issue 3
Dennis D. Hirsch
PDF
A response to Privacy as a Public Good by Joshua A.T. Fairfield and Christoph Engel, printed in Vol. 65, Issue 3
Response to Privacy as a Public Good
Priscilla M. Regan
PDF
A response to Privacy as a Public Good by Joshua A.T. Fairfield and Christoph Engel, printed in Vol. 65, Issue 3
Implementing Marriage Equality In America
Carl Tobias
PDF
Exotic Addiction
Melissa A. Morgan
August 14, 2015
PDF
“Advice and Consent” In the Appointments Clause: From Another Historical Perspective
Steven I. Friedland
May 24, 2015
PDF
A Fourth Way? Bringing Politics Back into Recess Appointments (And the Rest of the Separation of Powers, Too)
Josh Chafetz
May 24, 2015
PDF
The Need for a Law of Church and Market
Nathan B. Oman
April 25, 2015
PDF
Punishing The Poor Through Welfare Reform: Cruel and Unusual?
Jennifer E.K. Kendrex
March 17, 2015
PDF
The Divisibility of Crime
Jessica A. Roth
February 17, 2015
PDF
An Essay on Descamps v. United States, 133 S. Ct. 2276 (2013)
The Rule of Law as a Law of Standards: Interpreting the Internal Revenue Code
Alice G. Abreu & Richard K. Greenstein
January 11, 2015
PDF
In dialogue with Lawrence A. Zelenak, Custom and the Rule of Law in the Administration
of the Income Tax, printed in Vol. 62, Issue 3
Charting a New Course: Metal-Tech v. Uzbekistan and the Treatment of Corruption in Investment Arbitration
Michael A. Losco
Nov. 18, 2014
PDF
An Essay in conversation with Streamlining the Corruption Defense: A Proposed Framework for FCPA-ICSID Interaction, printed in Vol. 63, Issue 5
Pragmatic Administrative Law and Tax Exceptionalism
Richard Murphy
Oct. 27, 2014
PDF
A response to the 2014 Duke Law Journal Administrative Law Symposium: Taking Administrative Law to Tax
Which Institution Should Determine Whether an Agency’s Explanation of a Tax Decision is Adequate?: A Response to Steve Johnson
Richard J. Pierce, Jr.
Oct. 27, 2014
PDF
A response to Reasoned Explanation and IRS Adjudication by Professor Steve R. Johnson, printed in Vol. 63, Issue 8
What Patent Attorney Fee Awards Really Look Like
Saurabh Vishnubhakat
Apr. 6, 2014
PDF
Emergency Power and Two-Tiered Legality
Curtis A. Bradley
Dec. 31, 2013
PDF
A response to Interpreting Presidential Powers by Professor Richard H. Fallon Jr., printed in Vol. 63, Issue 2
Qualified Immunity, Sovereign Immunity, and Systemic Reform
Katherine Mims Crocker
PDF
Qualified immunity has become a central target of the movement for police reform and racial justice since George Floyd’s murder. And rightly so. Qualified immunity, which shields government officials from damages for constitutional violations even in many egregious cases, should have no place in federal law. But in critical respects, qualified immunity has become too much a focus of the conversation about constitutional-enforcement reform. The recent reappraisal offers unique opportunities to explore deeper problems and seek deeper solutions.
This Article argues that the public and policymakers should reconsider other aspects of the constitutional-tort system—especially sovereign immunity and related protections for government entities— too. Qualified immunity arises from and interacts with sovereign immunity in doctrinal and functional terms. Both rest on concerns about defense-side expenses and federal-court dockets. Both create harm given the impacts of indemnification and the economics of unconstitutional acts. In important ways, the problem with qualified immunity is actually sovereign immunity.
As one possible strategy, this Article recommends incremental yet systemic reform, contending that Congress should remove qualified immunity and allow entity liability at all levels of government for Fourth Amendment excessive-force claims while paving the way for further-reaching changes. Like qualified immunity, sovereign immunity and related protections for government entities fall hardest on populations that suffer a disproportional share of constitutional harm, including communities of color in the context of police violence. Increasing accountability in this area should help provide equal justice under law while showing that peeling away unwarranted defenses should not wreak havoc on individual or government finances, the judicial system, or substantive rights.
Tax’s Digital Labor Dilemma
Amanda Parsons
PDF
Digitalization has reshaped the relationship between companies and their customers and users. Customers and users increasingly serve a dual role. They are not only consumers but also producers, creating data and content. They are a value-creating workforce, functioning as “digital laborers.”
Digital laborers’ value creation highlights that there are two parts to the question of whether multinational companies are paying their “fair share” of taxes—one of amount and one of location. First, are companies’ total tax bills paid across all countries in line with their global income? Second, is taxing authority over multinational companies’ income being divided amongst countries in a coherent and fair way? Digital laborers’ value creation implicates the second. Under the current international tax system, the presence of digital laborers in a country does not grant that country taxing rights over income stemming directly from those digital laborers’ data and content creation. As a result, what are essentially the same activities— individuals creating products and performing services for a company— are taxed differently when they are performed by digital laborers rather than by a traditional workforce. This inconsistency and the accompanying outcome that countries cannot tax corporate income arising from extensive business activities within their borders have contributed to cries that the current system is unfair.
Recent reforms addressing this outcome share a common weakness. They do not recognize the function of digital laborers as producers in the modern economy. As a result, they overturn the theory of source-based taxation as a taxing right granted only to the country of production and introduce major structural changes to the international tax system that apply only to a subset of global companies. These changes are all to correct an unfairness that can be remedied under the system’s current theoretical framework and structure.
This Article rejects the notion that these major theoretical and structural changes are necessary or even appropriate methods to allow digital laborers’ home countries to tax income directly related to their data and content creation. Instead, the international tax system should recognize digital laborers’ role as a new type of workforce for companies and, accordingly, allow their home countries to tax income related to their work under the existing application of the source principle and with more incremental structural reforms. In addition to minimizing disruption in international tax law, this approach reinforces coherence and fairness by taxing equivalent economic activities equivalently.
Civil Rights as Human Rights
H. Timothy Lovelace, Jr.
PDF
During the early 1960s, government officials in the U.S. Department of State grappled with the following quandary: How could the United States shape and lead a racially diverse world while still denying rights to Black Americans domestically? One way the State Department set out to resolve this disconnect was through diplomacy and negotiations at the United Nations Sub-Commission on the Prevention of Discrimination and Protection of Minorities, which crafted the International Convention on the Elimination of all Forms of Racial Discrimination. Although extensive documentation exists on the exchanges between the Sub-Commission, the State Department, and the U.S. civil rights community, existing literature fails to examine these rich exchanges in sufficient detail. This Article explores how the United States shaped international human rights regimes through the Sub- Commission, and, in turn, how international affairs shaped the U.S. civil rights movement.
One underexplored aspect of the interplay between the U.S. civil rights movement and the international human rights regime is how the State Department interfaced with the Sub-Commission. By exploring the exchanges between the two high-profile civil rights lawyers the State Department sent to negotiate with the Sub-Commission and other actors at the United Nations, this Article highlights the tension between these lawyers’ values and the U.S. diplomatic agenda. This tension in turn magnifies how the U.S. civil rights movement and the international human rights regime shaped one another.
The history of how the U.S. delegation sought to imbue the International Convention on the Elimination of all Forms of Racial Discrimination with U.S. values remains central to this Article’s discussion. And, at the heart of this contribution was the importation of the state action doctrine. Thus, the doctrine that had vexed civil rights activists’ domestic litigation for decades became enshrined in the international human rights regime. This Article explores the role that the state action doctrine played in the reciprocal relationship between the U.S. civil rights movement and the international human rights regime.
How Non-Product-Specific Manufacturing Patents Block Biosimilars
Chorong Song
PDF
A new class of drugs called biologics has potential to finally cure previously untreatable conditions such as cancer and Alzheimer’s disease. But there is a catch: these innovative drugs are expensive. On average, prices range from $10,000 to $30,000 per year, and the most expensive ones exceed $500,000. The Biologics Price Competition and Innovation Act (“BPCIA”) was passed in 2010 to lower prices by providing a new regulatory pathway in approving biosimilars––copies of brand-name biologics. Yet, the BPCIA’s promised regulation of drug prices has not materialized partly due to brand-name companies’ vast patent portfolios, also known as patent thickets. This Note analyzed all BPCIA patents disputed in BPCIA litigations and found that over half of the asserted patents are manufacturing method patents, many of which were filed years after FDA approval. Given the nonproduct-specific nature of these patents and stringent FDA requirements, these inventions are not only unnecessary, but are also unlikely to be practiced when producing brand-name biologics. Regardless of their actual worth, these patents are extremely valuable to brand-name manufacturers because even a patent of marginal improvement can foreclose biosimilar access entirely. This Note proposes that brand-name manufacturers should be required to disclose related patents at the time of the FDA approval and share the FDA license application with biosimilar manufacturers. Further, Congress should eliminate the availability of injunctive remedies for these problematic assertions of patents.