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Conventional wisdom is that outside the Eighth Amendment, the Supreme Court does not engage in the sort of explicitly majoritarian state nose-counting for which the “evolving standards of decency” doctrine is famous. Yet this impression is simply inaccurate. Across a stunning variety of civil liberties contexts, the Court routinely—and explicitly—determines constitutional protection based on...

When the action of a state agent results in the deprivation of the federal rights of any “person” within the jurisdiction of the United States, that person may bring a civil action under 42 U.S.C. § 1983. In Roe v. Wade, the Supreme Court held that a fetus is not a constitutional “person.” As a result, an unborn child injured by a state agent may not raise a claim under § 1983. This result...

All have thus far considered the Constitutional Convention’s record on intellectual property puzzling and uninformatively short. This Article revisits that conventional wisdom. Using various methods of analysis, including a statistical hypotheses test, it solves historical puzzles that have long accompanied the events at the Convention leading to the framing of the IP Clause, and shows that...

In this Comment, I analyze how the current economic crisis has exposed many of the vulnerabilities of the conventional business model for law firms. After years of unprecedented but unsustainable growth, large law firms are stagnating, shrinking, or even disappearing entirely. Many law firms flourished amidst a frenzy of cheap and easy debt, high leverage, and inexhaustible billable hours—but...

This Comment challenges Oliphant v. Suquamish Indian Tribe, which precludes Indian tribal courts from criminally prosecuting non-Indians. Given that non-Indians often comprise the majority of reservation populations, and that the current upswing in tribal gambling enterprises brings scores of non-Indians onto reservations, it is no longer feasible for the federal or state governments to maintain...

This Article explores a conflict between the protections afforded interpersonal relations in Lawrence v. Texas and the vulnerability experienced under the Fourth Amendment by individuals who share their lives with others. Under the Supreme Court’s third-party doctrine, we have no constitutionally protected expectation of privacy in what we reveal to other persons. The effect of this doctrine is...

The nature and scope of new government electronic surveillance programs in the aftermath of September 11 have presented acute constitutional questions about executive authority, the Fourth Amendment, and the separation of powers. But legal challenges to these new surveillance programs have been stymied—and deci- sions on the merits of core constitutional questions avoided—by court rulings that...

The influence of banks and other private lenders pervades public companies. From the first day of a lending arrangement, loan covenants and built-in contingency provisions affect managerial decisionmaking. Conventional corporate governance analysis has been slow to notice or account for this lender influence. Traditionally, corporate governance discourse has focused only on corporate law...

How do we prevent excessive risk taking in the financial markets? This Essay offers a strategy for regulating financial markets to better prevent the kind of disaster we saw during the Financial Crisis of 2008. By developing a model of risk-manager decisionmaking, this Essay illustrates how even “good people” acting in utterly rational and expected ways brought us into economic turmoil. The...

Farmers throughout the industrialized world grow hemp legally as a source for a diverse range of products including foods, fabrics, plastic, cosmetics, and building materials. Although hemp was once widely grown in the United States, modern efforts to cultivate hemp have been frustrated by federal drug-control laws because the Drug Enforcement Administration (DEA) does not distinguish between...

Access to public education is undeniably important, particularly in the context of the juvenile justice system. It is especially difficult for juvenile wards to receive an adequate education in California, which currently has one of the worst juvenile justice systems in the nation. This Comment examines the current legal responses to California’s state and local juvenile correctional facilities’...

Is there a constitutionally protected right to choose one’s name? This Comment seeks to answer this question and to evaluate current government control over the name choices of adults. It first discusses the conflicting interests in names as identification and communication tools, as an expressive medium, and as a com- ponent of identity. It then summarizes the current law of name changes. Next...