One of the hallmarks of our patent system is that it provides a one-size-fits-all reward for innovation. The uniform patent laws offer insufficient incentives to develop some socially valuable inventions, and they offer excessive rewards for other inventions, which imposes an unnecessary tax on consumers and subsequent innovators. If the government could adequately tailor patent awards to account...
Here Comes the Sun: How Securities Regulations Cast a Shadow on the Growth of Community Solar in the United States
The cascading cost of solar photovoltaic technologies over the past five years presents a ripe opportunity to change the way people think about solar energy, and the nascent community solar model offers the vehicle for such change. Community solar offers any electricity ratepayer the opportunity to purchase a small portion—as little as one panel—of an offsite, local solar array in exchange for...
The Fifth Amendment, Encryption, and the Forgotten State Interest
This Essay considers how the Fifth Amendment’s Self-Incrimination Clause applies to encrypted data and computer passwords. In particular, it focus-es on one aspect of the Fifth Amendment that has been largely ignored: its aim to achieve a fair balance between the state’s interest and the individual’s. This aim has often guided courts in defining the Self-Incrimination Clause’s scope, and it...
Football and the Infield Fly Rule
In a previous article, I defended baseball’s infield fly rule, the special rule long beloved by legal scholars, in terms of equitable balance in distribution of costs and benefits between competing teams. This essay applies those cost-benefit and equity insights to football. It explores several plays from recent Super Bowls, the cost-benefit balance on those plays, and the appropriate role in...
Exclusion, Punishment, Racism and Our Schools: A Critical Race Theory Perspective on School Discipline
Punitive school discipline procedures have increasingly taken hold in America’s schools. While they are detrimental to the wellbeing and to the academic success of all students, they have proven to disproportionately punish minority students, especially African American youth. Such policies feed into wider social issues that, once more, disproportionately affect minority communities: the school...
Transparently Opaque: Understanding the Lack of Transparency in Insurance Consumer Protection
Consumer protection in most domains of financial regulation centers on transparency. Broadly construed, transparency involves making relevant information available to consumers as well as others who might act on their behalf, such as academics, journalists, newspapers, consumer organizations, or other market watchdogs. By contrast, command-and-control regulation that affirmatively limits...
California’s Unloaded Open Carry Bans: A Constitutional and Risky, but Perhaps Necessary, Gun Control Strategy
California recently passed bans on openly carrying an unloaded gun in public, but these bans may ironically result in increased concealed carrying of loaded guns in public. Before the recent string of mass shootings in Arizona, Colorado, and Connecticut, and before the U.S. Senate’s failed effort to pass gun control legislation, California strengthened its already strict gun control framework by...
Detention Without End?: Reexamining the Indefinite Confinement of Terrorism Suspects Through the Lens of Criminal Sentencing
While there has been a great deal of focus on who may be detained in the armed conflict with al-Qaeda and associated forces (the so-called war on terror), there has been relatively little consideration of how long the government may hold individuals. The Article provides a new approach to this issue. It argues that review of long-term terrorism detentions should be addressed not merely through...