Volume 69

Ignacio N. Cofone & Adriana Z. Robertson Volume 69, Issue 6, 1471-1508 On March 28, 2017, Congress killed the FCC’s attempt to protect consumer privacy on the internet and allowed ISPs to continue to track their users’ online behavior. We evaluate the...

McKay Cunningham Volume 69, Issue 6, 1509-1544 The Supreme Court has long held that extreme partisan gerrymandering violates equal protection, but has simultaneously dismissed gerrymandering disputes as nonjusticiable political questions. In particular,...

Andrea Freeman Volume 69, Issue 6, 1545-1606 Laws and policies that impede Black mothers’ ability to breastfeed their children began in slavery and persist as an incident of that institution today. They originated in the practice of removing...

Stephen F. Smith Volume 69, Issue 6, 1609-1672 For decades, the “guilty mind” requirement in federal criminal law has been understood as precluding punishment for “morally blameless” (or “innocent”) conduct, thereby ensuring that only offenders...

Christina E. Urhausen Volume 69, Issue 6, 1673-1694 Brady violations have become a growing epidemic in California. As a result, California recently enacted a new law that amends section 141 of the Penal Code. The law changes the status of an...

Justine Isola Volume 69, Issue 5, 1333-1338 Full Article

Erwin Chemerinsky Volume 69, Issue 5, 1339-1354 Full Article

David M. Howard Volume 69, Issue 5, 1355-1378 Democracy has evolved throughout history, and democracy can survive the challenges of the cyber age. However, democracy will be affected by the internet and increased cybersecurity. Cybersecurity...

Tessa Jolls & Michele Johnsen Volume 69, Issue 5, 1379-1408 The current focus on the validity, credibility, and trustworthiness of media and information is urgent and global. In the past ten to twenty years, the information landscape has fundamentally changed due to...

Alexandra Andorfer Volume 69, Issue 5, 1409-1431 “Fake news” seems to be the phrase du jour these days. During the 2016 presidential election, fake news and propaganda proliferated on social media sites like Facebook, Twitter, and Google, with...

Kaleigh E. Aucoin Volume 69, Issue 5, 1433-1469 The United States government’s use of what it refers to as “Network Investigative Tools,” presents several constitutional and privacy-related issues. Revelations stemming from the use of these...

Ignacio N. Cofone & Adriana Z. Robertson Volume 69, Issue 4, 1039-1098 Privacy loss is central to privacy law scholarship, but a clear definition of the concept remains elusive. We present a model that both captures the essence of privacy loss...

JD Hsin Volume 69, Issue 4, 1099-1146 For more than half a century the heckler’s veto has been a source of provocation. On the one hand, there now appears to be widespread consensus among courts and commentators that allowing police to shut...

Noah M. Kazis Volume 69, Issue 4,1147-1223 The bicameral legislature is a cornerstone of the Madisonian system, a basic assumption of American constitutionalism. But a different constitutional vision is hidden in plain sight. Of the more than...

David Kwok Volume 69, Issue 4, 1225-1269 When employers retaliate against whistleblowers, courts and agencies often treat the retaliation as a private employment dispute best resolved by the whistleblower and employer. This cramped view of...

Nancy Morawetz Volume 69, Issue 4, 1271-1310 In the first year of the Trump Administration, the courts played a critical role in reviewing and shaping federal immigration policy. When nonprofits and states filed prominent cases challenging the...

Joseph G. Marano Volume 69, Issue 4, 1311-1332 Courts have consistently interpreted section 230 of the Communications Decency Act (“CDA”) as shielding internet service providers from liability for defamatory content posted by users. This is a...

Rebecca Aviel Volume 69, Issue 3, 721-769 We live in a moment of intense preoccupation with both marriage and federalism, one that is likely to persist well beyond the Supreme Court’s ruling in Obergefell v. Hodges. The decision served to reify...

Joshua M. Divine Volume 69, Issue 3, 771-834 Sentencing disparity among similar offenders has increased at a disconcerting rate over the last decade. Some judges issue sentences twice as harsh as other judges on the same court, so a defendant’s...

Matteo Gatti Volume 69, Issue 3, 835-924 Shareholder approval in mergers generally takes a long time, but is it necessary? This Article finds that in the context of mergers, the approval requirement is not nearly as valuable a procedure as we...

Justin Marceau Volume 69, Issue 3, 925-960 The fiftieth anniversary of the Animal Welfare Act (“AWA”) was 2016. Most fiftieth anniversaries are cause for great celebration, but this one shouldn’t’ be because the AWA has caused more harm than...

Michael Vitiello & Rosemary Deck Volume 69, Issue 3, 961-984 The United States is on a fast-track to a new era in marijuana law. The prospect of a federal pathway to legalization opens a Pandora’s Box of issues for states like California. This...

Jaclyn Gross Volume 69, Volume 3, 985-1008 Recently, it has become increasingly difficult for foreign nationals to successfully gain refuge in the United States from persecution in their home countries. The year 1990 marked the first time that...

Gaby Lion Volume 69, Volume 3, 1009-1038 This Note discusses the current status of the rape kit backlog, and how it can be addressed through successful public-private partnerships in the DNA testing industry. DNA evidence contained inside rape...

Khaled A. Beydoun Volume 69, Issue 2, 429-497 The United States Department of State has long employed a sectarian foreign policy strategy to advance its interests in the Mideast. The United States has sided staunchly with Saudi Arabia, the...

John D. Leshy Volume 69, Issue 2, 499-582 Arguments are sometimes made most recently in a paper commissioned by the State of Utah, and by a lawyer for a defendant facing charges for the armed takeover of a National Wildlife Refuge in Oregon in...

Lydia Nussbaum Volume 69, Issue 2, 583-646 Zero-tolerance school disciplinary policies stunt the future of school children across the United States. These policies, enshrined in state law, prescribe automatic and mandatory suspension,...

George A. Croton Volume 69, Issue 2, 647-674 This Note considers whether a federal agency that grants a license, lease, or permit to a wind farm developer can thereafter be held vicariously liable for the developer’s violations of the Migratory...

Joseph Dimont Volume 69, Issue 2, 675-700 Digital music streaming services, like Spotify, Apple Music, and Tidal, currently distribute royalties based on a per-stream model, known as service-centric licensing, while at the same time receive...

Benjamin C. West Volume 69, Issue 2, 701-720 In the consumer data breach context, courts have seemingly limited a plaintiff’s ability to bring suit by applying the standing doctrine’s injury-in-fact requirement too rigidly. This is...

David Blankfein-Tabachnick & Kevin A. Kordana Volume 69, Issue 1, 1-44 This Article rejects a central claim of taxation and private law theory, namely, Kaplow and Shavell’s prominent thesis that egalitarian social goals are most efficiently...

Court E. Golumbic Volume 69, Issue 1, 45-94 Financial sector compliance officers have been referred to by prominent law enforcement and regulatory officials as “essential partners” in ensuring compliance with relevant laws and regulations. Yet...

Anthony Michael Kreis Volume 69, Issue 1, 95-118 In a majority of states, it remains legal to deny people housing, employment, or services because of their sexual orientation or gender identity. The LGBT community has taken great strides to...

Judith L. Maute Volume 69, Issue 1, 119-178 Quake Construction v. American Airlines, Inc. is featured in some prominent American casebooks on contract formation or precontractual liability, where scholars and authorities debate when liability...

Lois A. Weithorn Volume 69, Issue 1, 179-274 The Unites States Supreme Court identified “the peculiar vulnerability of children” as one of the “three reasons” for differentiating the treatment of children under the Constitution from that of...

W. Bradley Wendel Volume 69, Issue 1, 275-352 The words and actions of candidate, President-Elect, and now President Donald Trump indicate that this administration will aggressively seek to use state power with little regard for the rule of...

Mitchell R. VanLandingham Volume 69, Issue 1, 353-386 This Note addresses whether the president may take action on immigration as an exercise of foreign affairs power. In particular, it focuses on DACA and DAPA, two Obama-era policies of...

Jessica Wilson Volume 69, Issue 1, 387-429 Politicians and scholars have discussed reforming the corporate tax system for many years, especially with the emergence of certain tax avoidance practices like inversion and earnings stripping. While...