Iowa Law Review
Mission Statement: The Iowa Law Review provides select second- and third-year University of Iowa law students the opportunity to develop their legal research, writing, and editing skills through their involvement in the production of a law journal that publishes legal articles of national and state interest, maintains a high national ranking, and maintains its historical ties to the Iowa legal community.
- Nbr. 106-2, January 2021
- Nbr. 106-1, November 2020
- Nbr. 105-5, July 2020
- Nbr. 105-4, May 2020
- Nbr. 105-3, March 2020
- Nbr. 105-2, February 2020
- Nbr. 105-1, November 2019
- Nbr. 104-5, July 2019
- Nbr. 104-4, May 2019
- Nbr. 104-3, March 2019
- Nbr. 104-2, January 2019
- Nbr. 104-1, November 2018
- Nbr. 103-5, July 2018
- Nbr. 103-4, May 2018
- Nbr. 103-3, March 2018
- Nbr. 103-2, January 2018
- Nbr. 103-1, November 2017
- Nbr. 102-5, July 2017
- Nbr. 102-4, May 2017
- Nbr. 102-3, March 2017
- Cause and Effect in Antidiscrimination Law
Standards of causation in antidiscrimination law, and disparate-treatment cases in particular, are deeply flawed. Their defects have caused an illogical, obscure, and unworkable proof scheme that requires an overhaul to curb the harm that it engenders and to allow the antidiscrimination statutes to serve their objectives effectively. This Article proposes a theory and method of causation that achieves this goal. The problem stems from the inadequacies associated with current standards of causation in disparate-treatment cases—the but-for test and the motivatingfactor test. The proposed “factorial” approach introduces a causal standard that addresses these inadequacies. It entails three innovations over current causation schemes: (1) it adopts a predominant framework for cause and effect in the sciences, called the “potential-outcomes” framework, as a central structure in which to sharply define and analyze the causal inquiry; (2) it employs a causal measure, called the “NESS” test, that refines and, in a sense, unifies the but-for and motivating-factor tests by retaining the central feature of the but-for test—the “necessity condition”—but in a less restrictive form; and (3) it applies a legal framework grounded in tort law and recent advances regarding multiple sufficient causes. In addition to reflecting actual cause and effect, the proposed approach promotes antidiscrimination law’s deterrence and fairness objectives, and it allows an interpretation of causal language in antidiscrimination statutes that is consistent with good policy and Congress’s intent—an interpretation not possible under current standards
- Vanity Lawfare: Vanity License Plates and the First Amendment
When Pennsylvania introduced the vanity license plate in the early 1930s, it represented the first time a state government added an expressive component to the otherwise solely identificatory license plate. Vanity-plate programs are now ubiquitous across the United States, and those programs are accompanied by sweeping and amorphous restrictions on categories of expression that the states will permit to appear on the plates. When these restrictions face constitutional challenge, both state and federal courts have disagreed as to whether those restrictions are constitutional, reaching wildly different conclusions at every stage of the First Amendment analysis. This Note suggests that the Supreme Court, in an appropriate case, should clarify the framework for analyzing the constitutionality of vanity-plate regulations. Based on this adjusted framework, this Note contends that, in many cases, states' broad restrictions cannot be squared with the First and Fourteenth Amendments 'joint guarantee that state governments "shall make no law . . . abridging the freedom of speech. " To reach this end, this Note first concludes that vanity plates' alphanumeric configurations are better understood as the expression of the private actors who request them, rather than of the state governments who approve the plates. Second, it turns to those categories of speech most commonly proscribed by vanity-plate regulations. It concludes that several of these categories—offensive speech, disparaging speech, and profane speech—cannot be wholly restricted without engaging in viewpoint discrimination, which is at the core of what is prohibited by the First Amendment
- Eighth Amendment Presumptive Penumbras (and Juvenile Offenders)
Bright line constitutional rules tend to create unfair outcomes in close proximity to the bright line. In the context of the death penalty, such distinctions possess an entirely different level of seriousness that requires deeper reflection. This Article develops the concept of presumptive penumbras around capital constitutional bright lines and argues for its application to juvenile offenders under the Eighth Amendment. Specifically, the Article advocates, within the current constitutional rules, for a presumption against the imposition of the death penalty or juvenile life without parole in cases where the age of the offender is in proximity to—within the penumbra of—the bright line of age 18. Part II of the Article explains the inherent problems that stem from bright line rules and how both the Constitution and the death penalty exacerbate such problems. In Part III, the Article advances a typology of "presumptive penumbras"—a tool for minimizing the problems identified in Part II. Then, in Part IV, the Article applies the concept of presumptive penumbras to bright line rules related to juvenile offenders under the Eighth Amendment. Finally, in Part V, the Article concludes by sketching out some additional potential applications of presumptive penumbras to other criminal law bright lines under the Eighth Amendment
- Chief Justice Webster
- Structural Sensor Surveillance
City infrastructure is getting smarter. Embedded smart sensors in roads, lampposts, and electrical grids offer the government a way to regulate municipal resources and the police a new power to monitor citizens. This structural sensor surveillance, however, raises a difficult constitutional question: Does the creation of continuously-recording, aggregated, long-term data collection systems violate the Fourth Amendment? After all, recent Supreme Court cases suggest that technologies that allow police to monitor location, reveal personal patterns, and track personal details for long periods of time are Fourth Amendment searches which require a probable cause warrant. This Article uses the innovation of smart city structural design as a way to rethink current Fourth Amendment theory. This Article examines the Fourth Amendment search questions that may render structural surveillance unconstitutional, and then offers a legal and practical design solution. The Article argues that Fourth Amendment principles must be built into the blueprints of urban design. At a micro-level, privacy rules must be embedded alongside data collection rules. At a macro-level, a comprehensive legal framework must be integrated with digital design choices. Only by thinking about municipal code and computer code simultaneously can smart cities avoid emerging Fourth Amendment challenges
- Structuring the Public Defender
While the public defender is critical to protecting individual rights in the U.S. criminal process, state governments take remarkably different approaches to distributing public defense services. Some states organize indigent defense as a function of the executive branch of state governance; others administer indigent defense through the judicial branch. The remaining state governments do not place the public defender within any branch of state government, instead delegating its management to local counties. This administrative choice has important implications for the public defender's efficiency and effectiveness. It influences how the service will be funded and the extent to which the public defender, as an institution, will respond to the particular interests of its local community. So, which branch of government should oversee the public defender? Should the public defender exist under the same branch of government overseeing both the prosecutor and police—two entities the public defender seeks to hold accountable in the criminal process? Should the provision of services be housed under the judicial branch—although this branch is ordinarily tasked with being a neutral arbiter in criminal proceedings? Perhaps a public defender that is independent of statewide governance is ideal, even if that might render it a lesser player among the many government agencies battling at the state level for limited financial resources. This Article answers the question of state assignment by engaging in an original examination of each state's architectural choices for the public defender. Its primary contribution is to enrich our current understanding of how each state manages the public defender and how that decision influences the institution's funding and ability to adhere to ethical and professional mandates. It concludes the public defender should be an important executive function in this modern era of mass criminalization and articulates modifications that would improve such a state design by insulating it from pressure by other system actors
- A Defendant's Ability to Pay: The Key to Unlocking the Door of Restitution Debt
This Note argues that state legislatures should create statutory frameworks that permit judges to consider a defendant's ability to pay when determining the total amount of criminal restitution that should be ordered. Considering ability to pay before ordering restitution still accomplishes the goals of restitution while potentially increasing collection rates and managing victims' expectations. Further, this Note argues that judges should be able to consider a defendant's financial resources and ability to pay at subsequent proceedings in order to modify the defendant's restitution plan, or, alternatively, impose fair consequences based on the reason for their default on payment
- How Can Iowans Effectively Prevent the Commercial Misappropriation of Their Identities? Why Iowa Needs a Right of Publicity Statute
The right of publicity is an individual's right to control the commercial use of her identity. Thirty-five states in the United States recognize the right of publicity, either through statute or common law, and provide their citizens with a mechanism to prevent unauthorized uses of their identities. Iowa, however, is one of the 15 states that does not expressly recognize the right of publicity in any form, leaving Iowans uncertain about their intellectual property rights in their identities. Due to the recent emergence of social media and digital manipulation technology, which make it easier than ever for advertisers to commercially exploit an individual's identity, Iowans are particularly vulnerable to the misappropriation of their identities. Therefore, Iowa's legislature should join the majority of states and adopt a right of publicity statute to provide Iowans with a mechanism to enforce their rights in their identities. The certainty and protection provided by this neutral right of publicity statute will incentivize Iowans to commercialize their identities—enriching Iowa's society and, perhaps, its economy
- Framing the Second Amendment: Gun Rights, Civil Rights and Civil Liberties
Gun rights proponents and gun control advocates have devoted significant energy to framing the constitutional right to keep and bear arms. In constitutional discourse, advocates and commentators have referred to the Second Amendment as a "collective, " "civic republican, " "individual, " and "fundamental" right. Gun rights advocates have defended the right to keep and bear arms on "law and order" grounds, while gun control proponents have urged regulation based on "public health, " "human rights, " and other concerns. These frames and concepts have significantly influenced how the right to keep and bear arms has been debated, interpreted, and enforced. This Article focuses on two common frames gun rights advocates have used to construct realities, identify grievances, motivate supporters, and ultimately influence the meaning of the Second Amendment. Advocates have framed the right to keep and bear arms as a "civil right" primarily concerned with equality values and opposed to discriminatory treatment of gun owners and gun rights. Gun rights advocates have also developed and deployed a "civil liberty" frame that warns of impending disarmament, loss of liberty, and tyrannical government. Framing the Second Amendment in these discrimination and disarmament terms has deeply affected gun rights discourse, lawmaking, and judicial decisions. The Article focuses on the vocabulary of arms in order to better understand how advocates in gun debates generate and use frames, and how those frames affect the Second Amendment's meaning. Constitutional framing by both gun rights and gun control advocates will significantly influence future debates about the meaning and scope of the Second Amendment
- Our Kardashian Court (and How to Fix It)
The Supreme Court is broken. After cataloging its dysfunctions, this Article suggests a contributing cause and proposes a solution. The contributing cause is that Justices have become celebrities, and, like other celebrities, play to their fan base. The solution is to limit their opportunities to use their official status to do so: Congress should pass a law prohibiting concurring or dissenting opinions and requiring each case to be decided by an unsigned opinion that does not disclose the number of Justices who join it. The Article outlines the advantages of such a law and considers possible objections to it, including both constitutional and nonconstitutional objections. It ultimately concludes that it would be constitutional and that although there are significant risks, the probable benefits outweigh the probable costs. And because it is a statutory solution rather than a constitutional one, it can be viewed as an experiment that can easily be terminated if it does not work out. In the current climate, it is a risk worth taking
- The Antitrust Constitution
Antitrust is today viewed almost exclusively in strictly economic terms. Under the nearly ubiquitous "rule of reason," conduct is condemned or saved by courts largely based on their evaluation of the conduct’s effect on economic efficiency. But many aspects of antitrust law cannot be...
- A Market Approach to Regulating the Energy Revolution: Assurance Bonds, Insurance, and the Certain and Uncertain Risks of Hydraulic Fracturing
The United States faces a critical moment in environmental regulation. As tens of thousands of new unconventional, hydraulically fractured oil and gas wells spring up around the United States, we face a long-term threat of significant soil and water contamination. The current patchwork of state &quo...
- Efficient Copyright Infringement
Copyright infringement is said to be socially costly because it robs owners of due recompense and depresses incentives for creative production. This Article contends that, in order to achieve copyright’s goal of maximizing cultural production, this dominant story of infringement’s costs requires...
- Antitrust Federalism and State Restraints of Interstate Commerce: An Essay for Professor Hovenkamp
- Policing Police Access to Criminal Justice Data
Today, it is widely recognized that we live in an informationbased society. This is certainly true of police on street patrol, who more than ever before rely on, and enjoy ready access to, information when doing their work. Information in aggregated form, for instance, is used to create algorithms...
- Judicial Treatment of the Antitrust Treatise
- Cause and Effect in Antidiscrimination Law
Standards of causation in antidiscrimination law, and disparate-treatment cases in particular, are deeply flawed. Their defects have caused an illogical, obscure, and unworkable proof scheme that requires an overhaul to curb the harm that it engenders and to allow the antidiscrimination statutes to ...
- Beyond Severability
Severability is a wrecking ball. Even the most cautious use of this doctrine demolishes statutes in contravention of legislative intent and without adequate justification. It does so through the imposition of an artificially restrictive framework: one that requires that courts respond to a statute's...
- Credit Reform and the States: The Vital Role of Attorneys General After Dodd-Frank
Congress employed multiple strategies in the wake of the Great Recession to provide greater protections for consumers in the financial marketplace. One strategy aimed at agency design and resulted in creation of the Consumer Financial Protection Bureau. Another strategy created new substantive...
- Permanent Injunctions in Patent Litigation After eBay: An Empirical Study
The Supreme Court's 2006 decision in eBay v. MercExchange is widely regarded as one of the most important patent law rulings of the past decade. Historically, patent holders who won on the merits in litigation nearly always obtained a permanent injunction against infringers. In eBay, the Court...