Volume 2022, No. 4

Articles: Selective Prosecution, Selective Enforcement, and Remedial Vagueness by Guy Rubenstein, Mission Critical: Caremark, Blue Bell, and Director Responsibility for Cybersecurity Governance, by H. Justin Pace & Lawrence J. Trautman, The Emerging Airspace Economy: A Framework for Airspace Rights in the Age of Drones by Lavi M. Ben Dor & Jonathan M. Hoffman

Comments: Stop Telephonin’ Me: The Problematically Narrow Conception of Telemarketing Abuse under the TCPA by Niall T. Martin, The ABCs of Gaming: Activision, Biden, and COVID-19 Set the Stage for Labor Unionization in the Video Game Industry by Laura C.S. Newberry

Overprotecting: A Comment on Professor Krishnan’s LODE Model for Immigration Hearings

In this short comment, I raise two concerns regarding the implementation of Professor Krishnan’s model. The first is that the LODE model’s analogy to the discretionary interlocutory appeal is imperfect, and the imperfection is not merely technical, but rather involves the very heart of the reason for such interlocutory appeals: it is difficult to see how the LODE model will actually produce appellate rulings that could potentially shorten or terminate the underlying hearing. Instead, the LODE model seems likely only to create delay while the appellate court decides, based on an incomplete record, whether the rest of the immigration hearing will involve record development by the immigration judge.

The second concern is that the LODE model puts the appellate court into the position of having to decide (again, on an incomplete record) whether the noncitizen’s lawyer is inept or incompetent. Such a ruling could have far-reaching implications on any potential ineffective assistance of counsel claim brought by a noncitizen who loses at the hearing.

Willard Hurst, Technological Change, and the Transformation of American Public Law

The University of Wisconsin’s James Willard Hurst was arguably the most significant legal historian in the United States. Hurst not only launched the so-called “new” legal history as an alternative to traditional constitutional narrative, but he also founded the interdisciplinary field of “law and society” more generally. And Hurst is most famous for some of his more general observations about the relationship between economic development and the growth of American law. As Lawrence Friedman put it, “[O]n the general question of the relationship between law and the economy, the pioneer work of J. Willard Hurst is still a fundamental starting point. . . .” Much of that work concerned the nineteenth century and law’s role in what Hurst talked about as “the release of creative energy.”

Volume 2022, No. 3

Feature:
Foreword: Willard Hurst’s Unpublished Manuscript on Law, Technology, and Regulation by BJ Ard & William J. Novak, Chapter Eight—Technology and the Law: The Automobile by James Willard Hurst

Articles: Plea Bargaining in the Shadow of a Retrial: Bargaining Away Innocence by
Keith A. Findley, Maria Camila Angulo Amaya, Gibson Hatch,
& John P. Smith, Bloody Lucre: Carceral Labor and Prison Profit by Laura I Appleman,
Neither Carrots nor Sticks: DOJ’s Unfulfilled Commitment to Corporate Health Care Compliance
by Jacob T. Elberg, The Constitutionalization of Medical Malpractice in the Seventh Circuit by Brad Taylor, The Return of the Jury: Conduct-Based Sentencing for Recidivism by Jennifer Lee Barrow

Demystifying Mindreading for the Law

A few summers ago, I was playing in the yard with my kids. I noticed my 3-year-old son pinching the tops off the red lilies we had planted, which were just starting to bloom. I told him to stop. He immediately froze and blurted out “it was an accident!” I surveyed the scene. There were eight decapitated lilies in a row. Eight. I pressed him. “So, you are saying it was an accident, eight times?” He looked down, and then off into the horizon. The jig was up. He furrowed his brow—wondering how I could possibly know it had been intentional. I told him that we generally do not repeat the same movement, accidentally, eight times. He was mystified that I could have known his private thoughts. I told him that he was already developing the ability to read other people’s minds, and it would improve as he got older. He looked at me in awe, as if I had some superpower. But it’s one of the most basic things we humans do. This sort of mindreading—where we look beyond the actual words spoken, to discern someone’s true thoughts through their eye gaze, affect, expressions, character, demeanor, and any other cues—is an essential part of our social lives. By aggregating lots of information about other people’s mental states, past behavior, character (and unfair stereotypes), we decide whether they should be praised, condemned, or forgiven.

Volume 2022, No. 2

Restatement as Aadizookaan, by Matthew L.M. Fletcher; Indian Sovereignty in Context, by Diane P. Wood; Right-of-Way Sovereignty, by Brian L. Pierson; Who, What, Where, and How: The Fundamental Elements for Contracts Implicating Tribal Sovereign Immunity, by Lorenzo E. Gudino; Facilitating Tribal Co-Management of Federal Public Lands, by Kevin K. Washburn; Five Restatements: Charting the History of the Law on State Taxation of Non-Tribal Members in Indian Country, by Dale T. White; Opportunities for On-Reservation Sustainable Development, by John Clancy; Protection and Implementation of Indian Reserved Water Rights as a Necessary Condition for Tribal Economic Development, by Reid Peyton Chambers; Toward Tribal Health Sovereignty, by Aila Hoss

Volume 2022, No. 1

Articles: Invisible Victims by Mihailis E. Diamantis; Overstepping: U.S. Immigration Judges and the Power to Develop the Record by Jayanth K. Krishnan; A Queer Analysis of Intellectual Property by Eden Sarid; The Legal Struggle for Rights of Nature in the United States by Alexandra Huneeus

Essay: When the Soapbox Talks: Platforms as Public Utilities by Patrick A. Ward

News of the School Addendum: Order of the Coif

Parking Meters: A Roadblock In Chicago’s Ability To Transform Its Streets

The public safety need for social distancing during the COVID-19 pandemic spurred the City of Chicago to begin reimagining its public right of way. One program of particular success was the City’s “Make Way for Dining” program initiated in the summer of 2020. This program created temporary outdoor “Café Streets” and pedestrianized roadways for dining and shopping to support a reeling restaurant industry due to forced closures and prohibitions on indoor dining. The City’s plan to help revive the local economy did come at a cost, however, as the City’s Transportation Commissioner, Gia Biagi, acknowledged that “street closings might require the [C]ity to compensate the consortium that leases Chicago parking meters for any taken out of service.”

Volume 2021, No. 6

Articles: De-Coding Free Speech: A First Amendment Theory for the Digital Age by Xiangnong Wang; Rebellious Lawyers for Fair Housing: The Lost Scientific Model of the Early NAACP by John Bliss

Essay: Judicial Campaign Finance and Election Timing by Michael S. Kang & Joanna Shepherd

Comments: Ignoring the Cries of Black Mamas: Looking Beyond Tort Law to Ensure that Black Mothers Are Heard During Childbirth by Elise Ashley; Trojan Unicorn: Exploiting Religious Exemptions to Advance LGBTQIA+ Law by Riley Palmer; Anderson-Burdick, Democracy, and Tradition in the Republic of Palau by Ketib Oldiais

Volume 2021, No. 5

Foreword by Allie Boldt, Miriam Seifter, & Robert Yablon; State-Local Litigation Conflicts by Margaret H. Lemos; Enhanced State Constitutional Rights: Interpreting Two or More Provisions Together by Robert F. Williams; Federalism and Federal Rights Minimalism: Overlooked Effects on State Court Education Litigation in Wisconsin by Helen Hershkoff & Nathan D. Yaffe; Zombie State Constitutional Provisions by Maureen E. Brady; Federalism and the Limits of Subnational Political Heterogeneity by James A. Gardner; Measuring State Capture by Pamela J. Clouser McCann, Douglas M. Spencer, & Abby K. Wood; Tournament Elections with Round-Robin Primaries: A Sports Analogy for Electoral Reform by Edward B. Foley; Legislative Administration by Maria Ponomarenko; Federalism in the States: What States Can Teach About Commandeering by Fred O. Smith, Jr.; Localism All the Way Up: Federalism, State-City Conflict, and the Urban-Rural Divide by Richard C. Schragger; Exclusionary Zoning’s Confused Defenders by David Schleicher