Vol. LV No. 1

Rollover Risk: Ideating a U.S. Debt Default

Abstract: This Article examines how a U.S. debt default might occur, how it could be avoided, its potential consequences if not avoided, and how those consequences could be mitigated. The most realistic default would result from rollover risk: the risk that the government will be temporarily unable to borrow sufficient funds to repay its maturing debt. […]

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The Filibuster and the Framing: Why the Cloture Rule is Unconstitutional and What to Do About It

Abstract: The U.S. Senate’s handling of filibusters has changed dramatically in recent decades. As a result, the current sixty-vote requirement for invoking cloture of debate does not produce protracted speechmaking on the Senate floor, as did predecessors of this rule in earlier periods of our history. Rather, the upper chamber now functions under a “stealth […]

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Big Data and Due Process: Toward a Framework to Redress Predictive Privacy Harms

Abstract: The rise of “Big Data” analytics in the private sector poses new challenges for privacy advocates. Through its reliance on existing data and predictive analysis to create detailed individual profiles, Big Data has exploded the scope of personally identifiable information (“PII”). It has also effectively marginalized regulatory schema by evading current privacy protections with […]

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Experimental Rules

Abstract: When forming policy under conditions of extreme uncertainty, the optimal approach seems to be a process by which the policy decision is divided into multiple stages, or in other words, an experimental approach. The optimal legal vehicle for such policy experimentation is what this Article refers to as “experimental rules,” which are rules that […]

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What is a “Religious Institution”?

Abstract: Change in the First Amendment landscape tends toward the incremental, but the U.S. Supreme Court’s opinion two terms ago in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC—holding that religious institutions enjoy a range of First Amendment protections that do not extend to other individuals or organizations—is better understood as a jurisprudential earthquake. And […]

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Virtual Property, Virtual Rights: Why Contract Law, Not Property Law, Must Be the Governing Paradigm in the Law of Virtual Worlds

Abstract: Virtual worlds such as World of Warcraft and Second Life have recently exploded in popularity. As users of these worlds acquire virtual assets, conflicts inevitably arise. These conflicts are currently resolved through the terms of End User License Agreements (“EULAs”) between users and developers. Many commentators, however, criticize EULAs as being too one-sided and […]

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Just Grow Up Already: The Diminished Culpability of Juvenile Gang Members After Miller v. Alabama

Abstract: In Miller v. Alabama, the U.S. Supreme Court held that statutes imposing mandatory sentences of life without parole on juvenile offenders violate the Eighth Amendment. In doing so, the Court applied the Eighth Amendment analysis normally reserved to review capital sentences. The extension of this analysis to a term-of-years sentence rested on the Court’s […]

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Cherry Still on Top: How Pinkerton Concepts Continue to Govern Co-Conspirator Forfeiture of Confrontation Rights Post-Giles

Abstract: To combat the ever-expanding problem of witness intimidation, courts have employed familiar concepts of conspiracy liability to justify the extension of the forfeiture by wrongdoing doctrine in the context of group criminality. Under what is known as the Cherry doctrine, one co-conspirator’s misconduct in making a witness unavailable can generally be imputed to another […]

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