First Amendment Contradictions and Pathologies in Discourse

A robust, principled application of the First Amendment produces contradictions that undermine the very justifications for free speech protections. Strong free speech protections are justified by the idea that rational, informed deliberation leads to peaceful decision-making, yet our marketplace of ideas is crowded with lies, reductive narratives, emotional appeals, and speech that leads to violence. Our current First Amendment model creates pathologies in discourse, which I term problems in sp…

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Trademark Law and Consumer Constraints

Trademark law’s focus is on the consumer. Both the trademark literature and the marketing literature, however, tend to assume a consumer with few constraints on economic or cognitive processing resources. For example, scholars have argued that some confusion in the marketplace is not only inevitable but is also an overall positive in that encountering confusion trains consumers to be more resourceful and to learn how to interpret marketing communications more carefully. But not all consumers ha…

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President Biden’s Executive Order on Competition: An Antitrust Analysis

In July 2021, President Biden signed a far-ranging Executive Order directed to promoting competition in the American economy. The Order is not limited to antitrust enforcement but extends over a wide range of situations where more competitive processes or outcomes could be beneficial. Some federal agencies are already responding.

This paper examines the Executive Order and considers how it should be implemented. The result could be important shifts in antitrust policy, as well as related pol…

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Don’t forget the “G” in ESG: The SEC and Corporate Governance Disclosure

For years, many shareholders—both institutional and individual investors—have pressured the Securities and Exchange Commission (“SEC”) to require public companies to disclose more information about the environmental, social, and governance (“ESG”) risks facing the company. However, the SEC has generally refused calls to require public corporations to disclose, for example, how they are addressing climate change or workforce diversity challenges. With a new president in the White House and a new…

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Sheriffs, State Troopers, and the Spillover Effects of Immigration Policing

As the Biden Administration decides whether to continue the 287(g) program (the controversial program deputizing local law enforcement officers to enforce federal immigration laws), our research shows that the program has broader negative effects on policing behavior than previously identified. To date, debate about the 287(g) program has focused exclusively on the policing behavior of law enforcement agencies like sheriff’s offices that sign the agreements, and on concerns that these signatory…

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Habeas, History, and Hermeneutics

Supreme Court Justices Clarence Thomas and Neil Gorsuch recently proposed a radical shrinking of federal habeas corpus relief for state prisoners who are in custody pursuant to a final judgment of criminal conviction. They called for a return to the supposedly traditional principle that federal courts cannot grant habeas relief to such prisoners unless the state court that sentenced them lacked jurisdiction. This Article explains that (1) this supposedly traditional principle was not, in fact, …

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In a Class of Its Own: A Statutory Solution for the Gendered Sentencing Disparity in Teacher-Student Sexual Assault

In recent years, the #MeToo movement has started a powerful cultural dialogue about the pervasiveness and severity of sexual assault in our society. Despite those inroads, certain victims remain invisible. This Note explores the commission of sexual assault in one such context: female teachers who have sex with male students. It specifically examines the existence of a gendered sentencing disparity and proposes a three-part statutory solution that will reduce the incidence of the crime.


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How Far We Have Not Come: An Empirical Comparison of Federal and State Mental Health Legislation

This Note provides an overview of significant changes in mental health law from the nineteenth century onward and analyzes whether federal or state legal interventions create any discernible change in subjective mental health using difference-in-differences analysis. Further, this Note examines trends in the use of community-based mental health services. A quasi-experimental comparison of self-reported mental health before and after passage of the federal Mental Health Parity and Addiction Equa…

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Current Issue

Federal Rule 23–The Early Years

As Professor Yeazell has shown, present Federal Rule 23 has a surprisingly long lineage, but it remains a work in progress. One of its "roots," the aptly named "Bill of…
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