Volume 70
Algorithmic Discrimination Is an Information Problem
Ignacio N. Cofone Volume 70, Issue 6, 1389-1444 While algorithmic decision-making has proven to be a challenge for traditional antidiscrimination law, there is an opportunity to regulate algorithms through the information that they are fed. But blocking information...
Counterfeit Campaign Speech
Rebecca Green Volume 70, Issue 6, 1445-1490 We are entering an era in which computers can manufacture highly-sophisticated images, audio, and video of people doing and saying things they have, in fact, not done or said. In the context of political campaigns, the...
Data Philanthropy
Yafit Lev-Aretz Volume 70, Issue 6, 1491-1546 The term “data philanthropy” has been used to describe the sharing of private sector data for socially beneficial purposes, such as academic research and humanitarian aid. The recent controversy over an academic...
The Future of Insider Trading after Salman: Perpetuation of a Flawed Analysis or a Return to Basics
Charles W. Murdock Volume 70, Issue 6, 1547-1612 In large part due to two poorly reasoned decisions by Justice Powell in the early 1980s, Chiarella v. U. S. and Dirks v. SEC, the development of insider trading law has been constrained, enforcement has been hampered,...
Ethical Implications of the Conscience Clause on Access to Postpartum Tubal Ligations
Eleanor Barczak Volume 70, Issue 6, 1613-1638 Catholic health care systems in the United States have long limited women’s access to reproductive care. Controlled by the Ethical and Religious Directives promulgated from the Church, Catholic hospitals are prohibited...
An Elegant Solution to Network Inadequacy: How to Better Protect Patients from Inadequate Health Networks and Surprise Balance Billing
Leah Selby Gray Volume 70, Issue 6, 1639-1666 The American health care system is far from ideal. Health insurance is expensive, yet often inadequate, and patients can fall into bankruptcy paying for necessary medical care. Patients often face challenges finding...
When Structure Fails: Justice Kennedy, Liberty, and Trump v. Hawaii
Frank J. Colucci Volume 70, Issue 5, 1141-1174 This symposium Article situates Justice Anthony M. Kennedy’s final concurring opinion in Trump v. Hawaii within his larger jurisprudence. Part I traces its separation of powers foundations by examining then-Judge...
Judicial Archaeology: The Ninth Circuit Opinions of Justice Kennedy
The Honorable Marsha Berzon Volume 70, Issue 5, 1175-1184
More Speech Everywhere: Justice Kennedy and the Public Forum
Ashutosh Bhagwat Volume 70, Issue 5, 1185-1192
Justice Kennedy: A Free Speech Justice? Only Sometimes
Erwin Chemerinsky Volume 70, Issue 5, 1193-1198
The Profound Political but Elusive Legal Legacy of Justice Anthony Kennedy’s LGBT Decisions
Matthew Coles Volume 70, Issue 5, 1199-1206
Teacher for the Nation
Daniel Epps Volume 70, Issue 5, 1207-1212
Justice Kennedy and the Counter-Majoritarian Difficulty
Orin S. Kerr Volume 70, Issue 5, 1213-1224
Dignity and Civility, Reconsidered
Leah Litman Volume 70, Issue 5, 1225-1242
“Balanced Liberty”: Justice Kennedy’s Work in Criminal Cases
Rory K. Little Volume 70, Issue 5, 1243-1262 During his forty-three years as a federal appellate judge, Anthony M. Kennedy authored over 350 opinions in cases relevant to criminal law (although establishing a precise number using various electronic databases offers a...
One Is the Loneliest Number: The Complicated Legacy of Obergefell v. Hodges
Melissa Murray Volume 70, Issue 5, 1263-1272
Symmetric Constitutionalism: An Essay on Masterpiece Cakeshop and the Post-Kennedy Supreme Court
Zachary S. Price Volume 70, Issue 5, 1273-1316 Following Justice Kennedy’s retirement and the bitter fight over Justice Kavanaugh’s confirmation, increasingly polarized views about constitutional law in general, and specific constitutional cases in particular,...
Justice Anthony Kennedy’s Free Speech Legacy
Nadine Strossen Volume 70, Issue 5, 1317-1330 Justice Kennedy has been hailed by free speech advocates as a leading free speech champion. In contrast, other experts have not only criticized particular opinions and votes by Justice Kennedy that rejected free speech...
Judicial Embrace of Racial Gerrymandering Cases
Nina Rose Gliozzo Volume 70, Issue 5, 1331-1387 This Note seeks to explore the way courts engage with claims of racial gerrymandering. The Supreme Court has described judicial oversight of redistricting as an “unwelcome obligation.” These complex cases are both highly...
Issue 4 (Full Issue)
Volume 70, Issue 4, 949-1140
A Man for All Seasons: A Remembrance of Geoffrey C. Hazard
David L. Faigman Volume 70, Issue 4, 949-954
Access to Justice and Routine Legal Services: New Technologies Meet Bar Regulators
Benjamin H. Barton & Deborah L. Rhode Volume 70, Issue 4, 955-988 This Article explores controversies over bar regulation of new online technologies that help address the routine legal needs of low- and middle-income consumers. It is critical that lawyer...
Incorporation by Reference: Requiem for a Useless Tradition
Antonio Gidi Volume 70, Issue 4, 989-1044
Cornerstones of Civil Justice
Neil Andrews Volume 70, Issue 4, 1045-1056
Geoffrey C. Hazard, Jr.: An American in Paris
Victor Qiu Volume 75, Issue 4, 1137-1162 By the time federal appellate courts began to examine the withdrawal of money from an ATM and the question of to whom that money belongs pursuant to the first paragraph of the Federal Bank Robbery Act (“FBRA”), 18 U.S.C....
Learning from Geoffrey C. Hazard, Jr., by Example and Precept
Edward H. Cooper Volume 70, Issue 4, 1063-1066
Geoffrey C. Hazard, Jr., and the Comparison
Angelo Dondi Volume 70, Issue 4, 1067-1070
Professor Geoff Hazard
The Honorable William A. Fletcher Volume 70, Issue 4, 1071-1072
Reflections on a Thirty-Five Year Collaboration
W. William Hodes Volume 70, Issue 4, 1073-1084
Geoff Hazard: My Views as a Law Student, Mentee and Coauthor
Peter R. Jarvis Volume 70, Issue 4, 1085-1088
A Tribute to Geoff Hazard from an Admirer, Colleague, and Friend
Mary Kay Kane Volume 70, Issue 4, 1089-1092
My Teacher, My Friend
Susan P. Koniak Volume 70, Issue 4, 1093-1098
A Man for the Situation
Evan Lee Volume 70, Issue 4, 1099-1102
Remembering Geoff Hazard
John Leubsdorf Volume 70, Issue 4, 1103-1106
The Last Man Who Knew Everything
Richard Marcus Volume 70, Issue 4, 1107-1110 Hastings lost a tremendous resource when Geoff Hazard died. But he was a resource for much more than Hastings. Indeed, he was probably the most significant resource for American law, or at least those parts devoted to...
My Memories of Professor Hazard
Koichi Miki Volume 70, Issue 4, 1111-1116
Tribute to Geoffrey Hazard
The Honorable Anthony J. Scirica Volume 70, Issue 4, 1117-1120
Procedure in Context
Catherine T. Struve Volume 70, Issue 4, 1121-1128
Geoffrey Hazard Abroad
Michele Taruffo Volume 70, Issue 4, 1129-1132
Geoffrey C. Hazard, Jr.: Dear Friend, Eminent Scholar, and Director Exemplar of the American Law Institute
Michael Traynor Volume 70, Issue 4, 1133-1140
The Formalist Resistance to Unconstitutional Constitutional Amendments
Richard Albert, Malkhaz Nakashidze, Tarik Olcay Volume 70, Issue 3, 639-70 Many courts around the world have either asserted or exercised the power to invalidate a constitutional amendment. But we should not take the increasing prevalence of the doctrine of...
The Armed Society and Its Friends: A Reckoning
Charles W. Collier Volume 70, Issue 3, 671-88 This Article provides a selective introduction to some of the main social, cultural, historical, and intellectual issues surrounding gun violence and the desultory policy “debates” over gun control in America. Unregulated...
Disclosure as Delaware’s New Frontier
Reza Dibadj Volume 70, Issue 3, 689-716
The Power Side of the Second Amendment Question: Limited, Enumerated Powers and the Continuing Battle over the Legitimacy of the Individual Right to Arms
Nicholas J. Johnson Volume 70, Issue 3, 717-70 Roughly a decade has passed since the Supreme Court’s decision in District of Columbia v. Heller and the battle over the basic legitimacy of the right to keep and bear arms continues. A significant segment of the academy,...
The Enduring Virtues of Deferential Federalism: The Federal Government’s Proper Role in Prosecuting Law Enforcement Officers for Civil Rights Offenses
Adam Harris Kurland Volume 70, Issue 3, 771-850
Genetic Privacy in the “Big Biology” Era: The “Autonomous” Human Subject
Marilyn Cech Volume 70, Issue 3, 851-86 What do the Golden State Killer, the Havasupai Tribe, and Henrietta Lacks have in common? None of these individuals gave informed consent for the particular research uses of their genetic material. Biotechnological advancements...
An “SDVCJ Fix”—Paths Forward in Tribal Domestic Violence Jurisdiction
Joshua B. Gurney Volume 70, Issue 3, 887-918 Domestic violence has riddled the indigenous communities of the United States for decades. Within this problem lies another—non-Indians perpetrate crimes of domestic violence against Indian women at disproportionately high...
The Third Rail of San Francisco Politics: Transportation, Race, and the Central Subway
Wendell Lin Volume 70, Issue 3, 919-48 In the backdrop of intense political division, San Francisco is proud to be a beacon of diversity and inclusion. But the “sanctuary city” has an appalling history of racism and continues to relegate marginalized communities with...
Promise, Peril, and Procedure: The Price-Anderson Nuclear Liability Act
Jeffrey C. Dobbins - Volume 70, Issue 2, 331-366
The Street View of Property
Vanessa Casado Perez - Volume 70, Issue 2, 367-408 Parking on public streets is scarce. The current allocation system for parking spots based on the rule of capture coupled with low parking fees creates a tragedy of the commons scenario. The misallocation of parking...
Explaining Choice-of-Entity Decisions by Silicon Valley Start-Ups
Gregg Polsky - Volume 70, Issue 2, 409-454 Perhaps the most fundamental role of a business lawyer is to recommend the optimal entity choice for nascent business enterprises. Nevertheless, even in 2018, the choice-of-entity analysis remains highly muddled. Most...
A Tribute to Professor Jonathan Rohr
Volume 70, Issue 2, 455-462
Blockchain-Based Token Sales, Initial Coin Offerings, and the Democratization of Public Capital Markets
Jonathan Rohr and Aaron Wright - Volume 70, Issue 2, 463-524 Best known for their role in the creation of cryptocurrencies like bitcoin, blockchains are revolutionizing the way technology entrepreneurs finance their business enterprises. In 2017 alone, tech...
The Emergence of the Environmental Impact Assessment Duty as a Global Legal Norm and General Principle of Law
Tseming Yang - Volume 70, Issue 2, 525-572 More than half a century ago, Rudolf Schlesinger announced a global survey of legal principles in the pages of the American Journal of International Law. The project’s objective was the identification of a “common core” of...
Payment Is Not Enough: Materiality in Implied False Certifications Under the False Claims Act
Mike Chow - Volume 70, Issue 2, 573-594 In Universal Health Services, Inc. v. United States ex rel. Escobar, the United States Supreme Court resolved a longstanding circuit split by holding that implied false certifications—transactions involving a failure to disclose...
Contracts for Children: Constitutional Challenges to Surrogacy Contracts and Selective Reduction Clauses
Holly Jones - Volume 70, Issue 2, 595-620 Are babies commodities? Are they a proper subject of contract law? Many states say no, holding surrogacy contracts void as against public policy. Others, however, enforce surrogacy contracts. In the rare instances when...
No Firm Ground: Fifth Amendment Takings and Sea-Level Rise
Sophie Stocks - Volume 70, Issue 2, 621-638. Rising seas are encroaching on private properties along the California coast at alarming rates and rapidly changing the mean high tide line, which serves as the legal boundary determining the relative rights of the state...
No One Owns Data
Lothar Determann - Volume 70, Issue 1, 1-44. Businesses, policy makers, and scholars are calling for property rights in data. They currently focus on the vast amounts of data generated by connected cars, industrial machines, artificial intelligence, toys and other...
Prophylactic Merger Policy
Herbert Hovenkamp - Volume 70, Issue 1, 45-74.
An Empirical Inquiry into the Use of Originalism: Fourth Amendment Jurisprudence During the Career of Justice Scalia
Lawrence Rosenthal- Volume 70, Issue 1, 75-172. There is likely no methodological question of greater importance to constitutional law than whether adjudication should be based on the original meaning of the Constitution’s text, or instead reflect an evolving...
Ethical Issues in Robo-Lawyering: The Need for Guidance on Developing and Using Artificial Intelligence in the Practice of Law
Drew Simshaw - Volume 70, Issue 1, 173-214. As in many other industries, artificial intelligence (“AI”) is poised to drastically transform the legal services landscape. “Bots,” automated expert systems, and predictive analytics are already changing the way consumers...
Locating Affordable Housing: The Legal System’s Misallocation of Subsidized Housing Incentives
Brandon M. Weiss - Volume 70, Issue 1, 215-248. The primary goal of subsidized housing policy in the United States is to increase access to affordable housing for low-income households. Yet data show that states disproportionately award low-income housing tax credits...
Policing the Police: Balancing the Right to Privacy Against the Beneficial Use of Drone Technology
Jennifer M. Bentley - Volume 70, Issue 1, 249-296. The cost of buying, operating, and maintaining manned aircraft traditionally limited the government’s ability to conduct widespread aerial surveillance. But drone technology is eroding this natural limit because they...
Harris and Whole Woman’s Health Collide: No Funding Provisions Unduly Burden Reproductive Freedom
Alisha Patton - Volume 70, Issue 1, 297-330. This Note analyzes the pro-life crusade to defund Planned Parenthood and exclude private insurance plans that cover abortions from all subsidized insurance markets, ostensibly in accordance with decades-old case law that...