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Volume 70, Number 5

Reverse Political Process Theory

Oct. 7, 2017—Reverse Political Process Theory ABSTRACT Despite occasional suggestions to the contrary, the Supreme Court has long since stopped interpreting the Constitution to afford special protection to certain groups on the ground that they are powerless to defend their own interests in the political process. From a series of decisions reviewing laws that burden whites under...

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A Theory of Differential Punishment

Oct. 7, 2017—A Theory of Differential Punishment ABSTRACT A puzzle has long pervaded the criminal law: why are two offenders who commit the same criminal act punished differently when one of them, due to circumstances beyond her control, causes more harm than the other? This tradition of result-based differential punishment—the practice of varying offenders’ punishment based on...

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Regulating Business Innovation as Policy Disruption: From the Model T to Airbnb

Oct. 7, 2017—Regulating Business Innovation as Policy Disruption ABSTRACT Many scholars have invoked the term “disruptive innovation” when addressing the platform (sharing) economy, with sweeping claims about the dramatic changes this development promises for law, regulation, and the economy. The challenges raised by the platform economy are surely important, but we argue that recent scholarship focusing on...

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Going Postal: Analyzing the Abuse of Mail Covers Under the Fourth Amendment

Oct. 7, 2017—Going Postal ABSTRACT Since at least the late 1800s, the United States government has regularly tracked the mail of many of its citizens. In 2014 alone, for example, the government recorded all data on the outside of the mail parcels of over 50,000 individuals via a surveillance initiative known as the mail covers program. In...

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Do Your Job: Judicial Review of Occupational Licensing in the Face of Economic Protectionism

Oct. 7, 2017—Do Your Job ABSTRACT Despite efforts to challenge certain occupational licensing schemes as impermissibly driven by naked economic protectionism, federal appellate courts disagree on the legitimacy owed to the protectionist motivations that commonly prompt these regulations. To eliminate the current confusion, this Note advocates for the application of rational-basis-with-judicial-engagement review. The Supreme Court has demonstrated...

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