SLR Online

Essay

Faceless hooded anonymous computer hacker

Essay

Government Hacking to Light the Dark Web

Risks to International Relations and International Law?
by  Orin S. Kerr & Sean D. Murphy  

Introduction Government hacking is everywhere. Hackers working for the Russian government broke into computers run by the Democratic National Committee and stole e-mails relating to the 2016 Presidential election. Hackers traced to the Chinese government broke into U.S. government computers and copied personnel files of over 22 million employees. North Korean hackers intruded into Sony…

Volume 70 (2017-2018)

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Essay

Transformative Use in Software

by  Clark D. Asay  

Introduction Fair use is copyright law’s most important defense against claims of copyright infringement. Major corporations depend on it to pursue a variety of technological innovations; universities rely on it for a number of educational purposes; and innovative parties frequently resort to it in creating works that build upon the creativity of others. In short,…

Volume 70 (2017-2018)

manhattan office building

Essay

A Better Way to Revive Glass-Steagall

by  John Crawford  

Introduction The financial crisis of 2007-2008 repeatedly forced regulators to face terrible choices between risking catastrophic contagion by letting particular firms or markets fail, and intervening to bail them out. One explanation of why these dilemmas arose was that financial firms were “too big to fail.” Nearly a decade after the onset of the crisis,…

Volume 70 (2017-2018)

Old Cadillac Eldorado

Essay

‘Cadillac Compliance’ Breakdown

by  Todd Haugh  

Introduction The recent defeat device scandal at Volkswagen, in which VW engineers created and installed a computer algorithm to cheat emissions testing on over eleven million automobiles, brings together two things I spend time thinking about: white collar crime and cars. While that may seem like an odd combination, VW’s troubles happen to marry my…

Volume 69 (2016-2017)

USA Supreme Court Building

Essay

American Pipe Tolling, Statutes of Repose, and Protective Filings

An Empirical Study
by  David Freeman Engstrom & Jonah B. Gelbach  

I. American Pipe Tolling and the Problem of Protective Filings In American Pipe & Construction Co. v. Utah, the Supreme Court wisely rationalized class action law and policy under Rule 23 by holding that the filing of a class action complaint “suspends the applicable statute of limitations as to all asserted members of the class…

Volume 69 (2016-2017)

Young boy playing Pokemon Go

Essay

Gotta Collect It All!

Surveillance Law Lessons of Pokémon Go
by  Brandon R. Teachout  

Days after the release of the mobile game Pokémon Go, a privacy flap ensued from press reports revealing that users on Apple phones who logged in through a Google account had unwittingly granted the developer, Niantic, access to their entire Google account. Moreover, the application’s (app’s) privacy policy allowed Niantic to disclose any information it…

Volume 69 (2016-2017)

Self driving vehicle

Essay

A Loophole Large Enough to Drive an Autonomous Vehicle Through

The ADA’s “New Van” Provision and the Future of Access to Transportation
by  Bryan Casey  

“If it looks like a duck, and quacks like a duck, we have at least to consider the possibility that we have a small aquatic bird of the family Anatidœ on our hands.” —Douglas Adams Introduction In August 2016, Uber startled the world by announcing that its customers would soon have a small chance of…

Volume 69 (2016-2017)

Joshi

Essay

Bakke to the Future

Affirmative Action After Fisher
by  Yuvraj Joshi  

Introduction On June 23, 2016, the Supreme Court announced its much-anticipated decision in Fisher v. University of Texas at Austin, allowing affirmative action in college admissions to continue. No single feature of Fisher surprised court watchers more than its author, Justice Anthony Kennedy. As Richard Primus wrote in the New York Times: “[T]he most deceptive…

Volume 69 (2016-2017)

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Sexual Assault as a Law of War Violation and U.S. Service Members’ Duty to Report

by  Chris Jenks & Jay Morse  

Introduction This Essay considers when U.S. service members deployed to Afghanistan are obligated to report allegations of sexual assault by Afghan security forces (ASF) against Afghan nationals to the U.S. military. The answer requires applying a longstanding Department of Defense (DOD) policy for reporting law of war (LOW) violations and hinges on when sexual assault…

Volume 69 (2016-2017)

FERC

Essay

FERC v. EPSA

Functionalism and the Electricity Industry of the Future
by  Matthew R. Christiansen  

Introduction The Supreme Court’s recent decision in Federal Energy Regulatory Commission v. Electric Power Supply Association (EPSA) may ultimately rank among the most significant energy law cases of all time. Unsurprisingly, the case has received considerable attention within legal circles and even within the popular press. EPSA upheld one of the Federal Energy Regulatory Commission’s…

Volume 68 (2015-2016)

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Essay

In Defense of Corruption

CNN Debates, the Press Clause, and Campaign Finance Regulation
by  Michael Francus  

Introduction This election cycle, CNN’s Republican presidential debates have twice violated campaign finance law, specifically by failing to issue invitations based on “pre-established objective criteria.” These violations went unpunished, not because of the ineptitude of the regulators, but because of the absurdity of the regulation violated, which presumes that television debates violate campaign finance law,…

Volume 68 (2015-2016)

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Essay

Because and Effect

Another Take on Inclusive Communities
by  Lee Anne Fennell  

Introduction What does “because of race” mean in an antidiscrimination statute like the Fair Housing Act of 1968 (FHA)? The question arose last Term in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc., the case in which the Supreme Court recognized a disparate impact cause of action in the FHA. In…

Volume 68 (2015-2016)

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Essay

Who Should Define Injuries for Article III Standing?

by  Daniel Townsend  

Introduction In November, the Supreme Court heard oral argument in Spokeo, Inc. v. Robins, one of the Term’s most talked-about cases. The case presents a relatively unsympathetic plaintiff, Thomas Robins, and the prospect of sizeable class action damages. That combination may explain why one particular narrative has become popular in both mainstream media and legal-industry press…

Volume 68 (2015-2016)

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Essay

The Many Meanings of “Because Of”

A Comment on Inclusive Communities Project
by  Noah D. Zatz  

Introduction The Supreme Court recently surprised many observers by upholding disparate impact claims under the Fair Housing Act (FHA) in a case called Inclusive Communities Project. Justice Kennedy’s majority opinion ratcheted down the hostility to disparate impact analysis recently on display in his Ricci v. DeStefano opinion and in other earlier opinions he had joined.…

Volume 68 (2015-2016)

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Essay

Government Speech and Political Courage

by  Helen Norton  

Among the most prominent examples of government speech is a state’s choice to fly—or not to fly—the Confederate flag above or adjacent to its capitol. The recent vigorous public debates in South Carolina and elsewhere across the country reveal the potential power of governments’ expressive choices, including their power to inform, celebrate, cajole, wound, and…

Volume 68 (2015-2016)

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Essay

The Court and Overcriminalization

by  Michael Pierce  

Introduction In both Bond v. United States and Yates v. United States, the Supreme Court reversed federal criminal convictions. Neither defendant’s conduct was constitutionally protected; there were no procedural irregularities in either trial, no vagueness or overbreadth issues, and no police misconduct. Instead, each case involved prosecuting a small-time individual with a big-time statute: In…

Volume 68 (2015-2016)

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Essay

Retroactivity, the Due Process Clause, and the Federal Question in Montgomery v. Louisiana

by  Jason M. Zarrow & William H. Milliken  

Introduction The Supreme Court recently granted certiorari in Montgomery v. Louisiana to determine whether the Court’s holding in Miller v. Alabama, that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders,” applies retroactively to cases on collateral review. That question is important in its own…

Volume 68 (2015-2016)

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Essay

The Original Meaning of Constitutional Inventors

Resolving the Unanswered Question of the MadStad Litigation
by  Alexander J. Kasner  

Introduction In litigation that garnered national attention, a “garage inventor” of a new design for motorcycle windshields challenged the Leahy-Smith America Invents Act (AIA) as unconstitutional under the U.S. Constitution’s Patent Clause. The basis of the challenge in the case—MadStad Engineering, Inc. v. U.S. Patent & Trademark Office—uncoils as a pleasing syllogism: the AIA transitioned…

Volume 68 (2015-2016)

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Essay

Substantive Due Process as a Two-Way Street

How the Court Can Reconcile Same-Sex Marriage and Religious Liberty
by  Mark L. Rienzi  

Introduction Last month, the potential conflict between same-sex marriage and religious liberty prompted death threats, arson threats, and the temporary closure of a small-town pizzeria in Indiana. The restaurant’s owner had admitted to a reporter that she could not cater a hypothetical same-sex wedding because of her religious beliefs (even though she otherwise serves gay…

Volume 68 (2015-2016)

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Essay

Safe and Effective for Human Executions?

Glossip v. Gross and the Eighth Amendment Bar Against Off-Label Drug Lethal Injection
by  Rose Carmen Goldberg  

Introduction In June the U.S. Supreme Court will decide Glossip v. Gross, a challenge to Oklahoma’s lethal-injection protocol brought by three death row inmates. The inmates argue that the protocol’s first drug, midazolam, violates the Eighth Amendment’s prohibition against cruel and unusual punishment because it does not reliably induce unconsciousness. Midazolam’s inadequacy, they claim, could…

Volume 68 (2015-2016)