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Recent Print Edition:



Volume 109, Issue 4

Corporate Criminal ESG

J.S. Nelson

As social norms around climate change shift rapidly, and the U.S. Supreme Court requires federal regulation to retreat, regulations at the state and local levels fracture into increasingly aggressive, and often diametrically opposed, enforcement. Meanwhile, business representations regarding environmental, social, and corporate governance (“ESG”) initiatives are being policed by traditional charges of fraud that are civil, and, increasingly, criminal. . . .

Distinguishing Family Poverty from Child Neglect

Josh Gupta-Kagan

Family courts and child protective services (“CPS”) agencies surveil, regulate, and separate hundreds of thousands of families for neglect annually. These families are overwhelmingly poor, and the history of this legal system reveals an expectation, if not an intention, to intervene in poor families. This raises the question whether family courts and CPS agencies are “confusing poverty and neglect” or if they intervene for more than “just poverty,” as a raging debate in the field is framed. . . .

Litigating Partial Autonomy

Cassandra Burke Robertson

Who is responsible when a semi-autonomous vehicle crashes? Automobile manufacturers claim that because Advanced Driver Assistance Systems (“ADAS”) require constant human oversight even when autonomous features are active, the driver is therefore fully responsible when supervised autonomy fails. This Article argues that the automakers’ position is likely wrong both descriptively and normatively. . . .

The Fourth Amendment State Agency Requirement: Some Doubts

David Gray

The state agency requirement holds that the “Fourth Amendment restricts the conduct of the Federal Government and the States; [but] does not apply to private actors.” As Justice Alito has pointed out, this rule dramatically limits the capacity of the Fourth Amendment to protect the “security of the people . . . against unreasonable searches and seizures” because “today, some of the greatest threats to individual privacy may come from powerful private companies that collect and sometimes misuse vast quantities of data about the lives of ordinary Americans.” . . .

Averting Plausibility Pleading’s Threats to Novel FHA Legal Claims

Tanya Pierce & Aric Short

Plausibility pleading requirements articulated by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal continue to confound even well-intentioned courts. But for courts inclined to avoid grappling with modern applications of existing law, they provide ideal camouflage: a way of relying on procedural justifications to ostensibly side-step substantive law decisions—while in effect creating de facto law that robs litigants of their day in court. . . .

Fundamental: How the Vote Became a Constitutional Right

Bertrall L. Ross II

Does the U.S. Constitution protect the affirmative right to vote? Those focusing on the Constitution’s text say no. Yet, the Supreme Court has treated the right to vote as fundamental under the Constitution since the mid-twentieth century. That discrepancy between text and precedent has taken on renewed importance now. . . .


Student Notes

Volume 109, Issue 4

Interstate Electric Transmission Interference

Spencer E. Culver

State control over siting and permitting for various land use regimes is being used in some states to restrict the construction of interstate electric transmission lines. In a moment where the American electricity system is undergoing radical changes to the quantity and nature of its generation systems, transmission must advance to accommodate those changes. . . .

Animal Cruelty—“Because You’re Worth It”: Advocating for the Passage of Cruelty-Free Cosmetics Laws

Alysha Z. Rameshk

Animals have been used in testing for hundreds of years; in cosmetics, the justification for the use of animal testing is providing safe and effective products to consumers. However, animal models do not provide accurate, useful data that can be translated to provide information on how humans will respond to certain products or ingredients. . . .

Why 501(c)(3) Tax-Exempt Status Does Not Count as Federal Financial Assistance Under Title IX

William A. Jordan

Two federal district courts in Maryland and California have ruled that private schools are subject to Title IX of the Education Amendments of 1972 because their tax-exempt status under Section 501(c)(3) of the Internal Revenue Code counts as federal financial assistance. This major development in the interpretation of Title IX threatens to subject tax-exempt private schools not only to Title IX, but to a number of other statutes and regulations that apply to recipients of federal financial assistance. . . .

All for Naught: McNaughton v. Chartier’s Dismantling of Iowa’s Dedication Doctrine

Benjamin T. Tate

Public dedication is one method by which cities, towns, and municipalities acquire new roads and highways. The common law doctrine of dedication has developed to balance the property rights of landowners and the public. When property is dedicated to the public, the landowner generally retains title to the land while the public acquires an easement. Dedications can be made expressly through official grants or by inclusion in a plat. . . .

Recent Online Edition:

Recent Online Edition:

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. . . .

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