Vol. 119 No. 2

Commercial Law
Essay

CHEATING PAYS

Emily Kadens*

Common private-ordering theories predict that merchants have an incentive to act honestly because if they do not, they will get a bad reputation and their future businesses will suffer. In these theories, cheating is cheating whether the cheat is big or small. But while reputa­tion-based private ordering may constrain the big cheat, it does not necessarily constrain the small cheat because of the difficulty in discover­ing certain[...]

Constitutional Law
Article

UNSEXING PREGNANCY

David Fontana* & Naomi Schoenbaum**

Because sex does not dictate the capacity to provide care in the home or work in the market, sex-equality law combats harmful sex ste­reotypes by eliminating statutes and regulations that assign these roles on the basis of sex. When it comes to pregnancy, though, courts and commentators alike chart a very different course. They assume that pregnancy is a biological event that is almost exclusively for women. Thus, equal protection jurisprudence[...]

Civil Rights
Note

QUALIFIED IMMUNITY FORMALISM: “CLEARLY ESTABLISHED LAW” AND THE RIGHT TO RECORD POLICE ACTIVITY

Tyler Finn*

The Supreme Court’s qualified immunity jurisprudence provides little guidance on a central component of the doctrine: the proper sources of “clearly established law.” As a result, lower courts often resort to a restrictive definition of clearly established law, requiring a control­ling precedent in the jurisdiction where the violation took place. This formalist approach unmoors qualified immunity from its intended pur­pose: ensuring that[...]