Category: Law Rev (Minnesota)


Minnesota Law Review 96:3 (February 2012)


Volume 96, Issue 3 (February 2012):


Jeremy N. Sheff, Veblen Brands, 96 Minn. L. Rev. 769 (2012)

Talia Fisher, Conviction Without Conviction, 96 Minn. L. Rev. 833 (2012)

Jason Marisam, The Interagency Marketplace, 96 Minn. L. Rev. 886 (2012)

Samuel R. Wiseman, Waiving Innocence, 96 Minn. L. Rev. 952 (2012)

Afra Afsharipour, A Shareholders’ Put Option: Counteracting the Acquirer Overpayment Problem, 96 Minn. L. Rev. 1018 (2012)


Adam J. Hoskins, Armchair Jury Consultants: The Legal Implications and Benefits of Online Research of Prospective Jurors in the Facebook Era, 96 Minn. L. Rev. 1100 (2012)

Brian Jacobson, Making Pesticides Public: A Disclosure-Based Approach to Regulating Pesticide Use, 96 Minn. L. Rev. 1123 (2012)

Kevin Lampone, Class Certification as a Prerequisite for CAFA Jurisdiction, 96 Minn. L. Rev. 1151 (2012)


Minnesota Law Review 96:1 (November 2011)


Volume 96, Issue 1 (November 2011):


Catharine A. MacKinnon, Substantive Equality: A Perspective, 96 Minn. L. Rev. 1 (2011)


Frank B. Cross, Tort Law and the American Economy, 96 Minn. L. Rev. 28 (2011)

Tsilly Dagan and Talia Fisher, Rights for Sale, 96 Minn. L. Rev. 90 (2011)

Kimberly Kessler Ferzan, Beyond Crime and Commitment: Justifying Liberty Deprivations of the Dangerous and Responsible, 96 Minn. L. Rev. 141 (2011)

Neomi Rao, Public Choice and International Law Compliance: The Executive Branch Is a “They,” Not an “It”, 96 Minn. L. Rev. 194 (2011)


Daniel J. Iden, Combating Joint Ventures in Suppression: Taking Inventory of the Legal Arsenal, 96 Minn. L. Rev. 278 (2011)

Mark Thomson, Who Are They to Judge?: The Constitutionality of Delegations by Courts to Probation Officers, 96 Minn. L. Rev. 306 (2011)

Margaret E. Wade, The Sartorial Dilemma of Knockoffs: Protecting Moral Rights without Disturbing the Fashion Dynamic, 96 Minn. L. Rev. 336 (2011)


Cybersecurity Puzzles

Cybersecurity is in the news: a network intrusion allegedly interfered with railroad signals in the Northwest in December; the Obama administration refused to support the Stop Online Piracy Act due to worries about interfering with DNSSEC; and the GAO concluded that the Department of Homeland Security is making things worse by oversharing. So, I’m fortunate that the Minnesota Law Review has just published the final version of Conundrum (available on SSRN), in which I argue that we should take an information-based approach to cybersecurity:

Cybersecurity is a conundrum. Despite a decade of sustained attention from scholars, legislators, military officials, popular media, and successive presidential administrations, little if any progress has been made in augmenting Internet security. Current scholarship on cybersecurity is bound to ill-fitting doctrinal models. It addresses cybersecurity based upon identification of actors and intent, arguing that inherent defects in the Internet’s architecture must be remedied to enable attribution. These proposals, if adopted, would badly damage the Internet’s generative capacity for innovation. Drawing upon scholarship in economics, animal behavior, and mathematics, this Article takes a radical new path, offering a theoretical model oriented around information, in distinction to the near-obsession with technical infrastructure demonstrated by other models. It posits a regulatory focus on access and alteration of data, and on guaranteeing its integrity. Counterintuitively, it suggests that creating inefficient storage and connectivity best protects user capabilities to access and alter information, but this necessitates difficult tradeoffs with preventing unauthorized interaction with data. The Article outlines how to implement inefficient information storage and connectivity through legislation. Lastly, it describes the stakes in cybersecurity debates: adopting current scholarly approaches jeopardizes not only the Internet’s generative architecture, but also key normative commitments to free expression on-line.

Conundrum, 96 Minn. L. Rev. 584 (2011).

Cross-posted at Info/Law.


Minnesota Law Review 95:5 (May 2011)


Volume 95, Issue 5 (May 2011):


Nicole Elsasser Watson, Government Ethics and Bailouts: The Past, Present, and Future, 95 Minn. L. Rev. 1525 (2011)

Jeffrey M. Lipshaw , The Financial Crisis of 2008-2009: Capitalism Didn’t Fail, but the Metaphors Got a “C” , 95 Minn. L. Rev. 1532 (2011)

Jonathan G. Katz , Who Benefited from the Bailout?, 95 Minn. L. Rev. 1568 (2011)

Kathleen Clark, Fiduciary-Based Standards for Bailout Contractors: What the Treasury Got Right and Wrong in TARP, 95 Minn. L. Rev. 1614 (2011)

Claire Hill and Richard Painter, Compromised Fiduciaries: Conflicts of Interest in Government and Business, 95 Minn. L. Rev. 1637 (2011)

Lisa M. Fairfax, Government Governance and the Need to Reconcile Government Regulation with Board Fiduciary Duties, 95 Minn. L. Rev. 1692 (2011)

Steven M. Davidoff, Uncomfortable Embrace: Federal Corporate Ownership in the Midst of the Financial Crisis, 95 Minn. L. Rev. 1733 (2011)

Stephen M. Bainbridge, Dodd-Frank: Quack Federal Corporate Governance Round II, 95 Minn. L. Rev. 1779 (2011)

Usha Rodrigues, Corporate Governance in an Age of Separation of Ownership from Ownership, 95 Minn. L. Rev. 1822 (2011)


Elsa Bullard, Insufficient Government Protection: The Inescapable Element in Domestic Violence Asylum Cases, 95 Minn. L. Rev. 1867 (2011)

Jamie L. Kastler, The Problem with Waste: Delaware’s Lenient Treatment of Waste Claims at the Demand Stage of Derivative Litigation, 95 Minn. L. Rev. 1899 (2011)

Christopher A. Pinahs, Diversity Jurisdiction and Injunctive Relief: Using “Moving-Party Approach” to Value the Amount in Controversy, 95 Minn. L. Rev. 1930 (2011)


Minnesota Law Review 95:4 (April 2011)


Volume 95, Issue 4 (April 2011):


Michael Steven Green, Erie’s Suppressed Premise, 95 Minn. L. Rev. 1111 (2011)

Allan Erbsen, Constitutional Spaces, 95 Minn. L. Rev. 1168 (2011)

Maya Steinitz, Whose Claim Is This Anyway? Third-Party Litigation Funding, 95 Minn. L. Rev. 1268 (2011)

David Weissbrodt and Nathaniel H. Nesbitt, The Role of the United States Supreme Court in Interpreting and Developing Humanitarian Law, 95 Minn. L. Rev. 1339 (2011)


Justin Goetz, Hold Fast the Keys to the Kingdom: Federal Administrative Agency and the Need for Brady Disclosure, 95 Minn. L. Rev. 1424(2011)

Karen E. Nelson, Turning Winners into Losers: Ponzi Scheme Avoidance Law and the Inequity of Clawbacks, 95 Minn. L. Rev. 1456 (2011)

Monica Patel, Expanding the Role of Trade Preference Programs, 95 Minn. L. Rev. 1490 (2011)


Minnesota Law Review 95:3 (February 2011)


Volume 95, Issue 3 (February 2011):


Michael P. Vandenbergh, Amanda R. Carrico, and Lisa Schultz Bressman, Regulation in the Behavioral Era, 95 Minn. L. Rev. 715 (2011)

Margaret H. Lemos, Special Incentives to Sue, 95 Minn. L. Rev. 782 (2011)

Randall S. Thomas and Harwell Wells, Executive Compensation in the Courts: Board Capture, Optimal Contracting, and Officers’ Fiduciary Duties, 95 Minn. L. Rev. 846 (2011)

Sarah B. Lawsky, On the Edge: Declining Marginal Utility and Tax Policy, 95 Minn. L. Rev. 904 (2011)

Deborah Hellman, Money Talks but It Isn’t Speech, 95 Minn. L. Rev. 953 (2011)


Heather R. Abraham, Legitimate Absenteeism: The Unconstitutionality of the Caucus Attendance Requirement, 95 Minn. L. Rev. 1003 (2011)

Reed T. Schuster, Rule 14a-11 and the Administrative Procedure Act: It’s Better to Have Had and Waived, than Never to Have Had at All, 95 Minn. L. Rev. 1034 (2011)

Tyler J. Siewert, The Cloying Use of Unallotment: Curbing Executive Branch Appropriation Reductions During Fiscal Emergencies, 95 Minn. L. Rev. 1071 (2011)


Minnesota Law Review 95:2 (December 2010)


Volume 95, Issue 2 (December 2010):


Josh Chafetz, Impeachment and Assassination, 95 Minn. L. Rev. 347 (2010)

J.B. Ruhl and Robert L. Fischman, Adaptive Management in the Courts, 95 Minn. L. Rev. 424 (2010)

I. Glenn Cohen and Daniel L. Chen, Trading-Off Reproductive Technology and Adoption: Does Subsidizing IVF Decrease Adoption Rates and Should it Matter?, 95 Minn. L. Rev. 485 (2010)

Robert B. Ahdieh, The Visible Hand: Coordination Functions of the Regulatory State, 95 Minn. L. Rev. 578 (2010)


Laura N. Arneson, Defining Unpatented Article: Why Labeling Products with Expired Patent Numbers Should Not Be False Marketing, 95 Minn. L. Rev. 650 (2010)

Trevor Woodage, Relative Futility: Limits to Genetic Privacy Protection Because of the Inability to Prevent Disclosure of Genetic Information by Relatives, 95 Minn. L. Rev. 682 (2010)



Volume 95, Issue 1 (November 2010):


Hon. Ruth Bader Ginsburg, The Role of Dissenting Opinions, 95 Minn. L. Rev. 1 (2010)


Margaret H. Lemos and Alex Stein, Strategic Enforcement, 95 Minn. L. Rev. 9 (2010)

Hon. Richard D. Cudahy and Alan Devlin, Anticompetitive Effect, 95 Minn. L. Rev. 59 (2010)

Jeffrey A. Meyer, Dual Illegality and Geoambiguous Law: A New Rule for Extraterritorial Application of U.S. Law, 95 Minn. L. Rev. 110 (2010)

David Zaring, Administration by Treasury, 95 Minn. L. Rev. 187 (2010)


Nathaniel H. Nesbitt, Meeting Boumediene‘s Challenge: The Emergence of an Effective Habeas Jurisprudence and Obsolescence of New Detention Legislation, 95 Minn. L. Rev. 244 (2010)

Steven Schmidt, The Need for Review: Allowing Defendants to Appeal the Factual Basis of a Conviction After Pleading Guilty, 95 Minn. L. Rev. 284 (2010)

Eva B. Stensvad, Immunity for Vaccine Manufacturers: The Vaccine Act and Preemption of Design Defect Claims, 95 Minn. L. Rev. 315 (2010)


When Life Imitates Legal Scholarship

Last year, my Pacific-McGeorge colleague Jarrod Wong and I wrote an article about corporate law and contract law.  A couple months ago, we found out that the selection committee had liked our work enough to give us the faculty scholarship award (named in honor of our colleague John Sprankling’s service as associate dean). It was a great night, and we even received bonus checks to celebrate our win!

But then came the irony. In addition to the bonus checks we were given at the awards ceremony, which we both cashed, and, one of us, ahem, spent immediately, we then received an email informing us that we had each received a second bonus amount via the direct deposit system. We were asked to give the second bonuses back.

The irony is that the article that won us the award was an article about clawback provisions. The first part of the article deals with clawbacks in the context of executive compensation, and most specifically, bonuses. (The second portion of the article deals with investors defrauded in ponzi schemes).

So what did we do? We weren’t entitled to two bonuses, so we of course made arrangements to return the overage. Further, it wasn’t particularly difficult to unwind the transaction.  Some of the critiques we’ve received of our paper, which focus on the logistical difficulties, now seem even more overblown.

Rather than cowering and hiding from the claw like the stuffed animals in the arcade game (who seem desperately slippery and evasive), we, like the sentient alien toys in the “Toy Story” movie, had nothing to hide from the claw.


Minnesota Law Review Headnotes 94:2 (May 2010)


The Minnesota Law Review is proud to announce the spring edition of our new online companion journal, Minnesota Law Review Headnotes. In addition to serving as the online archive of the Law Review‘s print articles, available in PDF format, Headnotes also features original, online-only Response articles in which prominent academics respond to the articles the Law Review publishes. Comment fields are available at the end of each Response, and readers are encouraged to provide feedback.

In this issue of Headnotes:

Ralph Hall (University of Minnesota Law School) responds to Richard Epstein’s article, Against Permititis: Why Voluntary Organizations Should Regulate the Use of Cancer Drugs. In Right Question, Wrong Answer, Professor Hall argues that while he agrees with Professor Epstein’s assessment of the problems with the FDA drug approval process, he disagrees with his proposed solution. Professor Hall argues that Professor Epstein’s solution—to reduce the FDA to an advisory/information role after Phase I testing—devalues the mission of the FDA and has already been rejected by the body politic.   Instead, Professor Epstein contends that the solution to problems with the FDA drug approval process is to work to improve and optimize the system, not to eliminate it.

Aaron Perzanowski (Wayne State University Law School) responds to David Fagundes’s article, Property Rhetoric and the Public Domain. In In Defense of Intellectual Property Anxiety, Professor Perzanowski expresses skepticism about two assumptions underlying the argument for embracing property rhetoric to promote the public domain. This argument assumes, first, public recognition of social discourse theory as an account of property and, second, rhetorical advantages of social discourse theory that are comparable to those of more familiar notions of private property. Perzanowski concludes that the simple intuitive appeal of Blackstonian property cautions against styling the struggle for balanced copyright and patent policy as a debate over competing property interests.

Ted Sampsell-Jones (William Mitchell College of Law) replies to Professors Cribari and Judges’s article, Speaking of Silence: A Reply to “Making Defendants Speak. In On Silence, Professor Sampsell-Jones argues that their theory of the Self-Incrimination Clause, which relies on intuition to determine which practices are necessary to “test the prosecution” in criminal cases, is lacking in both textual support and practical utility. As a result, he concludes that their defense of Griffin v. California is unconvincing.