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Articles
Articles
Volume 110, Issue 3
State Court Adherence to Decisions Incorporating Federal Constitutional Law
Elizabeth Bentley
By issuing its decision in Dobbs v. Jackson Women’s Health, the U.S. Supreme Court changed the operative meaning of federal constitutional law: On June 23, 2023, the Fourteenth Amendment Due Process Clause protected the right to an abortion; the next day, it did not. But is it possible that Dobbs also changed the meaning of state constitutional law? . . .
Indigeneity, Data Genocide, and Public Health
Aila Hoss
Public health datasets will often tell us nothing about Indigenous people. This type of data suppression has been described as data genocide and data terrorism, because it demonstrates the effort to erase Indigenous people. . . .
The Missing Element in Trademark Infringement
Sepehr Shahshahani & Maggie Wittlin
As trademark law is currently litigated and understood, a plaintiff may succeed on an infringement claim by showing that (1) it owns a valid trademark, and (2) the defendant used a mark in commerce that is likely to confuse consumers into thinking that the plaintiff’s and defendant’s products come from the same source. We argue that this conventional understanding of the cause of action is missing an element: The plaintiff should also be required to show that the confusion arises from protectable features of the plaintiff’s trademark. . . .
Racially Disparate and Disproportionate Punishment of Felony Murder: Evidence from New York
Guyora Binder & Alexandra Harrington
America’s peculiar institution of felony murder liability has long been criticized as cruel and pointless, particularly as applied to defendants who did not kill. This study of felony murder arrest and disposition in New York reports large racial disparities, particularly for those convicted who did not kill. . . .
Conspiracy, Really?
Andrew Ingram
A heap of criminals is not a conspiracy any more than a pile of bricks is a house, yet every day in court, prosecutors elevate the stakes in prosecutions and plea bargaining by charging defendants who commit crimes in groups with conspiracy. The crime may be as disorganized as the impulsive decision to rob a convenience store, but if the prosecutor can show that more than one person participated in the crime, she can add a conspiracy charge. . . .
Executor Discretion
James Toomey
The fundamental purpose of the law of wills is to distribute an owner’s property according to their intent. When a will is implemented, despite no longer reflecting the intent of the person who wrote it, the law fails at this purpose. . . .
Notes
Student Notes
Volume 110, Issue 3
Balancing Surveyor Access and Property Rights in the Age of Cedar Point: A Legal Analysis of Iowa’s Evolving Pipeline Troubles
Kyle D. Rustad Estel
This Note explores the law surrounding surveyor access to private land in Iowa, specifically in the context of carbon pipeline projects. The changing legal landscape influenced by the Cedar Point Nursery v. Hassid decision has generated confusion regarding whether all government intrusions give rise to a Fifth Amendment taking. . . .
A Grammy for Fake Drake? A Federal Right of Publicity in Professional Singers’ Voices to Protect Vocal Artists from Generative A
Matthew R. Klaes
Artificial intelligence is an increasing presence in our society. There are currently no adequate protections against generative artificial intelligence creating a digital replica of a singer’s voice. . . .
Can the Police Access My Newborn’s Blood Sample? In Iowa, There Is No Clear Answer
Jackson H. King
Every state’s newborn screening program helps detect early, life-threatening disorders. It is important to catch these disorders immediately upon birth because they can irreparably harm the baby if left untreated. In 2022, New Jersey police made news after they issued a subpoena to New Jersey’s newborn screening laboratory to access a newborn blood sample while investigating a crime. . . .
Caught Looking! Using K Law to ꓘ Big League Advantage’s Unconscionable Contracts
Nicholas L. Salas
Big League Advantage (“BLA”) has capitalized on the growing trend of income-sharing agreements by expanding the agreements to Major League Baseball (“MLB”). Founded by former Philadelphia Phillies pitcher Michael Schwimer, BLA operates as an investment firm and provides resources to baseball players from a fund that has amassed at least $256 million as of 2023. . . .
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How the Supreme Court Ghosted the PHOSITA: Amgen and Legal Constructs in Patent Law
Timothy R. Holbrook & Mark D. Janis
This Essay is an invited response to The Ghost in the Patent System: An Empirical Study of Patent Law’s Elusive “Skilled Artisan,” by Professors Laura Pedraza-Fariña and Ryan Whalen. In their piece, Pedraza-Fariña and Ryan Whalen offer an empirical study and use it to argue for a new conception of the Person Having Ordinary Skill in the Art (“PHOSITA”), patent law’s nod to the “reasonable person” construct. . . .
The Game, the Players, and the Board
Bruce E. Boyden
109 Iowa L. Rev. Online 105 (2024)
Christopher Seaman and Thuan Tran’s fascinating article, Intellectual Property and Tabletop Games, raises important questions about the role of intellectual property (“IP”) in developing and distributing innovative products. The market for tabletop games, Seaman and Tran argue, is able to sustain a high level of creativity at a high up-front cost, all while protected by some but not all of the IP rights that other industries’ outputs receive. Is that evidence of IP’s necessity or its superfluousness? . . .
Interpreting Textualist Slogans
Guha Krishnamurthi
109 Iowa L. Rev. Online 15 (2023)
Slogans are a blunt instrument—they may convey something of the truth, but they rarely do so undented. So too is the case with the influential textualism slogans “the text is [the] law,” “only the text [is] the law,” and “[o]nly the written word is the law.” In his insightful Article, Professor Erik Encarnacion shows why these statements are false, as they are category errors. He then observes that these slogans are unnecessary to establishing the core theses of textualism and that these slogans misunderstand and confuse features of textualism. And he is right about all of that. . . .
Should the Recent Timbs and Dobbs Decisions Revive Interest in the Excessive Fines Clause as the Constitutional Basis . . .
N. William Hines
109 Iowa L. Rev. Online 46 (2024)
In a series of cases in the early 1990s, the U.S. Supreme Court ruled that the Due Process Clause of the Fourteenth Amendment implicitly enabled federal courts to review state punitive damages awards for unconstitutional arbitrariness and excessiveness. Before settling on the Due Process Clause as the basis of federal regulation of punitive damages, in a 1989 decision the Court considered and rejected the claim that the Excessive Fines Clause of the Eighth Amendment, as incorporated into the Fourteenth Amendment, could provide the constitutional foundation for federal regulation of state punitive damages awards. . . .
The Racism of Immigration Crime Prosecution
Ingrid V. Eagly
109 Iowa L. Rev. Online 27 (2023)
Eric Fish’s Article, Race, History, and Immigration Crimes, explores the racist motivation behind the original 1929 enactment of the two most common federal immigration crimes, entry without permission and reentry after deportation. This Response engages with Fish’s archival work unearthing this unsettling history and examines how his research has informed a series of legal challenges seeking to strike down the modern federal border crossing law as violating the Equal Protection Clause of the Constitution. . . .
Does DARC Really Matter?: A Response to Wright & Moore
Troy A. Rule
109 Iowa L. Rev. Online 1 (2023)
Danaya Wright and Ethan Moore’s Article, DARC Matters: Repurposing Nineteenth-Century Property Law for the Twenty-First Century, is a valuable contribution to a growing body of legal academic literature focused on property law obstacles to the deployment of commercial drone technologies. Wright and Moore rightly acknowledge landowners’ long-held rights to exclude objects from the low airspace immediately above their land–rights that some major retailers have aggressively sought to weaken in recent years to facilitate drone delivery services. . . .