Vol. LIII No. 4

The First Amendment and Commercial Speech

Abstract: This Article examines the constitutionality of regulating commercial speech. Keeping in mind traditional First Amendment values, this Article squares the regulation of commercial speech with the justifications that accompany the regulation of noncommercial speech. After providing a definition of commercial speech, this Article inspects the First Amendment values that have been applied to commercial […]

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The Extension Clause and the Supreme Court’s Jurisdictional Independence

Abstract: This Article challenges the prevailing doctrinal, political, and academic view that the Extension Clause—which provides that “[t]he judicial Power shall extend” to nine types of cases and controversies—justifies legislative attempts to strip the U.S. Supreme Court of appellate jurisdiction. Legislators have repeatedly introduced bills seeking to prevent the Court from hearing cases on politically […]

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Reasonable Copyright

Abstract: Using the lens of the cognitive bias literature, this Article examines and critiques the “reasonable man” standard, focusing on the use of the standard in an extremely fuzzy area of the law: copyright. In copyright, the test for infringement is whether a “reasonable observer” would believe that two works—often involving media that do not […]

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Standing as Channeling in the Administrative Age

Abstract: For several decades, courts have approached citizen suits with judicially created rules for standing. These rules are vague and unworkable, often serving merely as a screening mechanism for docket management. The use of standing rules to screen cases, in turn, yields inconsistent decisions and tribunal splits along partisan lines, suggesting that courts are using […]

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The Calculus of Accommodation: Contraception, Abortion, Same-Sex Marriage, and Other Clashes Between Religion and the State

Abstract: This Article considers a burning issue in society today—whether, and under what circumstances, religious groups and individuals should be exempted from the dictates of civil law. The “political maelstrom” over the Obama administration’s sterilization and contraceptive coverage mandate is just one of many clashes between religion and the state. Religious groups and individuals have […]

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Beyond Practical Skills: Nine Steps for Improving Legal Education Now

Abstract: It has been five years since the Carnegie Report Educating Lawyers called upon law schools to adopt an integrated approach to professional education that teaches practical skills and professionalism across the curriculum. Yet so far, very few schools have responded to this clarion call for wholesale curricular reform. Considering the inertial effect of traditional […]

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Anticipating New References: Predicting the Contours of the New “Otherwise Available to the Public” Category of Prior Art

Abstract: As part of the move from a first-to-invent to a first-to-file patent system, the Leahy-Smith America Invents Act, passed in September 2011, modifies the novelty section of the patent statute. The new novelty section retains four familiar categories of prior art from the previous Patent Act, but also adds a new category: inventions “otherwise […]

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One Merger, Two Agencies: Dual Review in the Breakdown of the AT&T/T-Mobile Merger and a Proposal for Reform

Abstract: Mergers in the telecommunications industry are unique because they are reviewed by not one, but two federal agencies. Mergers in most industries are subject only to antitrust review by the U.S. Department of Justice (DOJ). Telecommunications mergers, however, are also reviewed by the Federal Communications Commission (FCC) under its flexible public interest standard. This […]

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The Process That Is Due: Preponderance of the Evidence as the Standard of Proof for University Adjudications of Student-on-Student Sexual Assault Complaints

Abstract: In April 2011, the U.S. Department of Education Office for Civil Rights issued a “Dear Colleague Letter” to colleges and universities clarifying their obligation, as a condition of the receipt of federal funding under Title IX, to respond promptly and effectively to complaints of student-on-student sexual assault. The Letter explained that schools must, among […]

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