For decades, American fashion designers have been fighting, to no avail, for a federal law that protects their designs. In light of this inaction at the federal level, this Note explores the possibility of making use of the states’ traditional role as “laboratories of democracy” and passing a state law protecting works of fashion, specifically garment designs....
Since its formation, the Commodity Futures Trading Commission (CFTC) has taken a hands-off approach with respect to its oversight of the futures industry. It has relied on self-regulatory organizations (SROs)—namely, exchanges such as the Chicago Mercantile Exchange and associations such as the National Futures Association (NFA). The Dodd–Frank Act (Dodd–Frank),...
Criminal discovery reform has accelerated in recent years, triggered in part by the prosecution’s widely perceived failure to abide by its constitutional obligation, articulated in Brady v. Maryland, to disclose exculpatory evidence. Practitioners and academics, disillusioned by the Supreme Court’s hands-off approach, have sought reform along three axes:...
How does making law through private lawsuits differ from making law by other means? That question is especially important where legislators deputize “private attorneys general” as statutory enforcers, from antitrust and securities to civil rights and consumer protection. Yet legal scholars have not offered sustained theoretical or empirical analysis of how private...
This Essay takes up the puzzle of the risky argument or, more precisely, the puzzle of why certain arguments do not get much traction in advocacy and adjudication even when some judges find them to be utterly convincing. Through a close examination of the sex- discrimination argument’s evanescence in contemporary marriage litigation, this Essay draws lessons about...
In a recent case, the Eighth Circuit, following the lead of other courts interpreting Minnesota law, hinted that a plaintiff may not be able to pursue an unjust-enrichment claim if a statutory cause of action is available. It did so by calling unjust enrichment an equitable remedy and invoking the “irreparable injury rule,” which states that a plaintiff may not...
“Narrowing” occurs when a court declines to apply a precedent even though, in the court’s own view, the precedent is best read to apply. In recent years, the Roberts Court has endured withering criticism for narrowing in areas such as affirmative action, abortion, the exclusionary rule, campaign finance, and standing. This practice— often called “stealth overruling”—is...
Law has been trapped in a stylistic straitjacket. The Internet has revolutionized media and communications, replacing text with a dizzying array of multimedia graphics and images. Facebook hosts more than 150 billion photos. Courts spend millions on trial technology. But those innovations have barely trickled into the black-and-white world of written law. Legal treatises...
Tribal jurisdiction over nonmembers is limited to two narrow areas: consensual economic relationships between tribes and nonmembers, and nonmember activity that threatens tribal integrity. Even within these two narrow fields, the Supreme Court has stated that tribal adjudicatory power over nonmembers—the authority to decide legal rights of individuals, usually in...