Lethal Injection Chaos Post-Baze

In 2008, with Baze v. Rees, the Supreme Court broke decades of silence regarding state execution methods to declare Kentucky’s lethal injection protocol constitutional, yet the opinion itself did not offer much guidance. In the six years after Baze, legal challenges to lethal injection soared as states scrambled to quell litigation by modifying their lethal [...]

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The Rise and Fall of Unconscionability as the “Law of the Poor”

What happened to unconscionability? Here’s one version of the story: The doctrine of unconscionability experienced a brief resurgence in the mid-1960s at the hands of naive, left-liberal, activist judges, who used it to rewrite private consumer contracts according to their own sense of justice. These folks meant well, no doubt, much like present-day consumer protection [...]

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Through a Glass, Darkly: The Rhetoric and Reality of Campaign Finance Disclosure

In Citizens United v. FEC, the Supreme Court swept away long-standing limits on corporate spending in federal elections, but it also strongly affirmed the constitutionality of robust disclosure and disclaimer requirements. In the wake of that decision, many proponents of campaign finance regulation have turned their attention to disclosure as the best remaining mechanism by [...]

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Elective Race: Recognizing Race Discrimination in the Era of Racial Self-Identification

This Article posits that we are in a key moment of discursive and ideological transition, an era in which the model of elective race is ascending, poised to become one of the dominant frameworks for understanding race in the United States. Because we are in a period of transition, many Americans still are wedded to [...]

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Against Methodological Stare Decisis

Should federal courts give stare decisis effect to statutory interpretation methodology? Although a growing number of legal scholars have answered this question in the affirmative, this Essay makes the case against methodological stare decisis. Drawing on recent empirical studies of Congress’s expectations regarding statutory interpretation, we show that existing knowledge of Congress’s expectations is insufficient [...]

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The Uncertain Terrain of State Occupational Licensing Laws for Noncitizens: A Preemption Analysis

Part I of this Note sets the background framework for the preemption issue and includes an overview of the federal regulation of immigration, state licensing laws, the intersection of state occupational laws and immigration law, and the parameters of preemption of state licensing laws. To provide context to this background, Appendix 1 chronicles cases that [...]

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Navigating the Disclosure Dilemma: Corporate Illegality and the Federal Securities Laws

This Note demonstrates that courts have frequently but unpredictably circumvented the nondisclosure norm embodied in Matthews, creating confusion for issuers attempting to figure out whether and when to disclose uncharged criminal conduct. Greater clarity is needed. To alleviate the problem, this Note proposes a template courts can use to more reliably determine whether company statements [...]

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