Vol. LV No. 5

Lethal Injection Secrecy and Eighth Amendment Due Process

Abstract: The U.S. Supreme Court has held that death row inmates possess an Eighth Amendment right protecting them against execution methods posing a substantial risk of serious harm. Despite the clear existence of this liberty interest, lower federal courts have repeatedly denied inmates’ requests to know important details of the lethal injection procedure the state […]

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The Rise of the End User in Patent Litigation

Abstract: The patent system focuses on the actions of two players: the patentee and its competitor. It assumes that the competitor will represent the interests of the end user. But, end users are increasingly becoming significant players in the patent system, with their interests sometimes diverging from those of competitors. Attention has recently turned to […]

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A Dynamic Theory of Judicial Role

Abstract: Recent scholarship has focused heavily on the activism of courts in the fragile democracies of the “Global South.” Courts in countries like India, Colombia, and South Africa have issued landmark decisions in difficult political environments, in the process raising unanswered questions about the appropriate conception of judicial role in these climates. Much of the […]

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Justice Alito’s Dissent in Loving v. Virginia

Abstract: In 1967, in Loving v. Virginia, the U.S. Supreme Court unanimously struck down miscegenation statutes, which criminalized interracial marriage, as unconstitutional. In 2013, the Court in United States v. Windsor invalidated Section 3 of the so-called Defense of Marriage Act (“DOMA”), which precluded federal agencies from recognizing marriages between same-sex couples even if the […]

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Elementary Statutory Interpretation: Rethinking Legislative Intent and History

Abstract: This Article argues that theorists and practitioners of statutory interpretation should rethink two very basic concepts—legislative intent and legislative history. Textualists urge that to look to legislative history is to seek an intent that does not exist. This Article argues we should put this objection to bed because, even if groups do not have […]

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Opening the Schoolhouse Gate: Why the Supreme Court Should Adopt the Standard Announced in Tatro v. Supreme Court of Minnesota to Permit the Regulation of Non-Curricular Student Speech in Professional Programs

Abstract: Free speech in public schools has long been a divisive and intriguing issue. The topic is particularly contentious in post-secondary education where many of the maturity-driven and family surrogate rationales for restricting student speech fall away. Furthermore, with the advent of the Internet and the explosion of social media, it is now nearly impossible […]

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The Accommodation of Last Resort: The Americans with Disabilities Act and Reassignments

Abstract: In 1990, Congress enacted the Americans with Disabilities Act (“ADA”) to eliminate widespread discrimination against disabled persons. The Act requires private employers to provide reasonable accommodations to disabled employees to allow them to continue performing essential job functions. One accommodation in particular has divided the U.S. Circuit Courts of Appeals: reassigning disabled employees to […]

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Protecting Government Defense Contracting with a Purpose: Interpreting Civil Liability Under the Anti-Kickback Act

Abstract: The Department of Defense awards over $600 billion in government defense contracts to private contractors every year. The magnitude of these awards and the structure of defense contracts place the government at serious risk if fraud and misrepresentation are not adequately regulated and prosecuted. The Anti-Kickback Act of 1986 seeks to protect the government […]

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Light, Smoke, and Fire: How State Law Can Provide Medical Marijuana Users Protection from Workplace Discrimination

Abstract: Currently, twenty-three states and the District of Columbia have enacted legislation providing an affirmative defense to prosecution under state law for medical marijuana use by qualified patients. Despite growing public and legislative support for the legalization of medical marijuana, marijuana use—both  recreational and medicinal—remains illegal under the federal Controlled Substances Act. Given the inconsistency […]

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