Volume 102

Russell Powell

This essay considers the 2026 papal encyclical Magnifica Humanitas (or MH) and its concrete implications for law. The legal ramifications of this landmark document promulgated by Pope Leo XIV sit at the intersection of human rights, international law, and administrative regulation of technology, business, labor, and entitlements. Although papal encyclicals operate as expressions of Church doctrine and ethics, they sometimes function within the international legal order as powerful vectors for framing and norm-generation that lead to legal change. This encyclical was clearly crafted to impact public discourse, law, and policy related to artificial intelligence (AI). By casting Magnifica Humanitas as a digital analog to Pope Leo XIII’s 1891 Rerum Novarum, the Holy See has articulated a careful critique of AI regulation. This essay considers the documentary sources of Catholic social teaching relied on in MH, including both predictable and novel rhetorical moves used to evaluate the challenges posed by AI. It then turns to the likely policy applications of MH in the areas of human rights, privacy, labor, business organization, environmental, and international law (particularly the law of armed conflict). Although the document addresses all of these challenges, the most urgent threat identified by Magnifica Humanitas is the calamitous potential for autonomous weapons and AI agency to kill.

Volume 102

Michael D. Cicchini

Prosecutors, not defendants, employ the vast majority of expert witnesses at criminal trials. However, the stringent Daubert standard of admissibility was supposed to curtail such testimony. But while Daubert has posed a nearinsurmountable barrier for defendants, it has had no effect whatsoever on prosecutors. To build upon the findings of earlier studies, this Article analyzes all appellate cases in a single jurisdiction during a recent five-year span. In 52 cases, there were 115 Daubert decisions across all three levels of the court system, and the state’s record was 111-4 (or 113-2, depending on how a defense victory is defined). Further, courts allowed several categories of expert evidence for the state—e.g., child interview best practices, commonality evidence, and firearms evidence—but excluded that same evidence for the defense, despite the superior credentials of defense experts. Given the gross disparity in outcomes and, more importantly, the courts’ disingenuous reasoning used to obtain those outcomes, the defense bar needs to shift gears. The data is now more than sufficient to argue, at least with regard to defense experts, that Daubert is an unconstitutional barrier to a defendant’s right to call witnesses and to present a complete defense. The time has come to close the door on Daubert.

Volume 101

Jill M. Fraley

States are enacting a new wave of land laws restricting noncitizens’ ownership of real property, prompting immediate constitutional challenges grounded in equal protection and federal preemption. Most commentators assume these laws are unlikely to survive modern scrutiny. This Article argues that these land laws rest on a constitutional logic that remains both doctrinally intact and normatively compelling: the treatment of real property as an incident of state sovereignty ratherthan an ordinary site of economic regulation.

Volume 101

Kimberly R. Kemppainen

The Corporate Transparency Act (CTA) was designed to be one of the most consequential federal transparency reforms in decades. It was enacted to curtail the use of anonymous business entities in money laundering, fraud, and tax abuse and promised to transform beneficial ownership disclosure from a reactive investigative tool into a universal reporting regime. Yet the CTA’s implementation has proven far more complicated and unstable than its legislative ambitions suggested. The statute’s practical significance has been nearly eradicated by enforcement delays, shifting compliance expectations, and sustained constitutional challenges. However, the erosion of the CTA’s regulatory force does not diminish the underlying problem that motivated its enactment. This Note primarily focuses on the CTA’s original reporting framework, which defined the statute’s compliance obligations and cost structure.

This Note evaluates the original CTA through a cost-benefit analysis to explain both its economic implications and institutional instability. This framework is particularly useful in the context of disclosure-based regulation, where policymakers seek to reduce information asymmetries while inevitably imposing compliance burdens. The analysis goes beyond measuring regulatory costs and identifies the conditions under which transparency mandates become inefficient or ineffective. By examining the statute’s original reporting framework, this Note provides both an explanation of the CTA’s trajectory and insight into the design challenges facing future beneficial ownership disclosure regimes.

Despite the CTA’s downsizing, it remains instructive. Its bipartisan origins and continuing constitutional litigation indicate that beneficial ownership transparency will likely remain a recurring feature of regulatory policy. Understanding the economic and institutional dynamics that constrained the CTA is essential for evaluating future disclosure frameworks. Effective reporting regimes require not only legitimate policy objectives but also careful calibration of their expected benefits and costs. In this respect, the CTA serves not only as a regulatory experiment but as a case study in the economic limits of disclosure-based financial regulation.

Reviewed by Michael Conklin

This book review was published in the Indiana Law Journal Supplement. To view the official PDF version, click here.

Michael Conklin, A Review of The Future of Free Speech by Jacob Mchangama and Jeff Kosseff, 101 Ind. L.J. Supp. 91 (2026) (reviewing Jacob Mchangama & Jeff Kosseff, The Future of Free Speech: Reversing the Global Decline of Democracy’s Most Essential Freedom (2026)).

Introduction

Debates over free speech have become increasingly polarized, with public discourse often framed in stark terms of either unchecked permissiveness or urgent regulatory intervention. Against this backdrop, Jacob Mchangama and Jeff Kosseff provide much-needed clarity in their new book, The Future of Free Speech: Reversing the Global Decline of Democracy’s Most Essential Freedom.^[1] The book will hopefully serve as a powerful catalyst to spark interest in effective free speech advocacy. This Book Review proceeds in two parts. Part I highlights the book’s principal strengths, focusing on the author’s honest assessment of both sides, the unintended consequences of censorship, powerful examples of how bad speech is overcome by more speech, and the pragmatism of taking a global perspective. Part II offers a set of modest, constructive critiques aimed at sharpening the book’s normative claims and clarifying several important doctrinal and policy distinctions.

Volume 101

Michael Conklin

Debates over free speech have become increasingly polarized, with public discourse often framed in stark terms of either unchecked permissiveness or urgent regulatory intervention. Against this backdrop, Jacob Mchangama and Jeff Kosseff provide much-needed clarity in their new book, The Future of Free Speech: Reversing the Global Decline of Democracy’s Most Essential Freedom. The book will hopefully serve as a powerful catalyst to spark interest in effective free speech advocacy. This Book Review highlights the book’s principal strengths, focusing on the author’s honest assessment of both sides, the unintended consequences of censorship, powerful examples of how bad speech is overcome by more speech, and the pragmatism of taking a global perspective. It also offers a set of modest, constructive critiques aimed at sharpening the book’s normative claims and clarifying several important doctrinal and policy distinctions.

For scholars, policymakers, and advocates grappling with the future of speech regulation in an increasingly global and technologically mediated public sphere, this book offers both a powerful warning and a constructive framework for thinking more clearly about what is at stake when societies choose censorship over liberty. Through international comparisons, historical context, and practical anecdotes of free speech triumphing over censorship, the authors provide a powerful and much-needed framework for free speech advocacy.

Volume 101

Kellen Heniford

The Supreme Court’s 2022 ruling in New York State Rifle and Pistol Ass’n v. Bruen has dramatically reshaped Second Amendment jurisprudence. That decision, bucking precedent, created an entirely new, history-based standard for adjudicating the constitutionality of firearms restrictions and has led to a flurry of challenges to long-standing local, state, and federal gun laws. Among these challenges, cases involving age restrictions on the purchasing, possessing, and carrying of weapons have proven especially vexing to courts. While some recent rulings have validated age laws, others have come down on the side of the plaintiffs. At issue in these cases, per Bruen’s requirements, has been the question of an American “tradition” of limiting minors’ access to deadly weapons.

This Article seeks to provide a detailed account of the historical context surrounding the passage of age-based firearms restrictions in the decades following the Civil War. It argues that it was in the post-war Reconstruction years that the United States first faced a then-novel (but now-familiar) problem of youth gun violence and unintentional injury—a problem brought on by a confluence of several large-scale changes in American society and political economy. The focus here is narrowed to discuss transformations in the money economy of early America, which allowed those locked out of traditional barter and credit agreements to access markets; developments in labor practices and contract law that granted minors a degree of freedom and an ability to purchase for themselves that had been previously unimaginable; mechanization and industrialization, and their concomitant effects on the firearms industry’s mass production capacity; and, finally, the ways that gunmakers’ postbellum efforts to sell their products to new sectors of the market led to the targeting of children specifically.

In elaborating on this history, the present Article speaks to Bruen’s admonition that “unprecedented societal concerns . . . may require a more nuanced analysis” of a regulatory tradition. When youth gun violence emerged as a novel social ill, lawmakers across the country moved to address it by passing regulations limiting young people’s access to firearms. Under Bruen, challenges to modern age-based regulations must contend with this wealth of historical evidence.

The following remarks were given by then-Indiana Supreme Court Justice Frank Sullivan, Jr., introducing the Hon. Lee Hamilton at the 1999 annual banquet of the Indiana Law Journal. Hamilton, a distinguished member of Congress from Indiana for thirty-four years and a leading national figure on matters of foreign affairs, was a 1956 graduate of the Maurer School of Law. He died on February 3, 2026.

There is something different about our nation’s capital this year. For the first time in thirty-four years—the firsttime in one-third of a century—Lee H. Hamilton is not a member of the United States House of Representatives.

Volume 101

Jeffrey A. Parness

Assisted reproduction births in the United States are on the rise. These births can prompt parentage rights at birth in the “care, custody, and control” of children. Here, more than with children born of sex, parentage need not depend upon marriage or genetic ties. Rather, at-birth parentage often depends on consent, parental-like acts, or intentions. Congress has not spoken much on childcare parents at birth. The U.S. Supreme Court has generally yielded to state lawmakers, be they legislators or judges, on determining at-birth parentage.

State lawmaking has prompted significant interstate variations in and outside of artificial insemination. State laws differ on the import of marriage and genetic ties. Laws differ further on parentage arising from insemination into the vagina, insemination into the uterus, or implantation of fertilized eggs. As written, laws now also differ on parentage arising in same sex couples, opposite sex couples, and single intended parent settings. Further, laws differ on the nature of any necessary parental-like acts and on the proper forms of consent (including on the “record,” express, and implied). Finally, current laws distinguish between surrogacy and non- surrogacy births, as well as between genetic and gestational surrogates.

There are a few limits on at-birth childcare parentage laws arising from U.S. Supreme Court precedents. Additional limits arise in some states under state court precedents founded on independent constitutional interpretations. Separation of powers principles have prompted broad state general assembly discretion, with little room for state non-constitutional common law developments. Upon reviewing the limits on state lawmaking, this Article surveys current laws on at-birth childcare parentage in artificial insemination births. It demonstrates state usages of the three different Uniform Parentage Acts and the significant interstate variations. This Article concludes with suggested law reforms including changes in the laws on genetic, voluntary acknowledgment, spousal, non-marital, non-surrogacy, and surrogacy parentage.

Volume 101

Eric R. Bolinder

This Article examines the constitutional validity of President Donald J. Trump’s 2025 imposition of tariffs under the International Emergency Economic Powers Act (IEEPA). It argues that the President’s unilateral use of the IEEPA to impose across-the-board tariffs represents an unprecedented and unconstitutional assumption of legislative authority, violating core separation of powers principles. The analysis traces the historical and constitutional roots of the tariff power, emphasizing its placement in the Constitution as a revenue-raising tool vested exclusively in Article I. Drawing on historical practice, statutory interpretation, and key judicial precedents, the Article contends that while some delegation of tariff power to the President is appropriate, Congress must move first, setting specific strictures for the President. President Trump’s tariff actions fail to meet this standard, and the Supreme Court should invalidate the tariffs under the nondelegation doctrine, the major questions doctrine, or on ultra vires grounds. The Article concludes that, unless constrained, this use of emergency economic powers threatens to dismantle the structural safeguards of American constitutional governance.

Volume 100

Brian L. Frye & Christopher J. Ryan, Jr.

Have the U.S. News & World Report law school rankings become irrelevant? The ostensible purpose of the U.S. News law school rankings is to give prospective law students convenient and reliable information about the relative quality of law schools and help them decide which law school to attend. Law schools care about the U.S. News rankings because prospective law students care about the U.S. News rankings. A ranking increase means more prestige and better-credentialed students, while a ranking decrease means less prestige and students with worse credentials. Accordingly, law schools are jealous of their U.S. News ranking.

Volume 100

Alan J. Meese

Agencies have imperfect information about conduct they regulate. This problem is particularly acute when identical conduct has differing effects in various markets. Determining the economy-wide impact of such conduct can be difficult or impossible. The FTC faces such a challenge. The Commission has issued a rule banning the nation’s 30 million employee noncompete agreements (“NCAs”) as unfair methods of competition under Section 5 of the FTC Act.The Commission determined that NCAs restrict labor market competition and likely reduce aggregate wages, establishing a presumptive violation. The Commission also found that nearly all NCAs are both procedurally coercive—because employers use overwhelming bargaining power to impose them—and substantively coercive—because they restrict employees from starting new firms or accepting offers from rival employers. The Commission also implied that procedural coercion was a necessary condition for substantive coercion. The Commission then assessed possible business justifications. Echoing Transaction Cost Economics (“TCE”), the Commission concluded that NCAs sometimes produce cognizable benefits, increasing productivity and product quality. The Commission framed the inquiry as assessing whether, “overall,” NCAs’ harms exceed benefits. Determining the overall impact of30 million contracts is a daunting task. The Commission employed a creative proxy, however. The Commission hypothesized that employers would share benefits of NCAs by paying premium wages to employees with such agreements. However, most studies find a negative correlation between state-level enforceability of NCAs and wages, implying that harms exceed benefits. The Commission, therefore, rejected justifications and indiscriminately condemned all NCAs.

Volume 100

Madeline Aul

Adolescent participation in athletics provides many benefits for participants including improved academic performance, higher self-esteem, and better lifelong health outcomes. Additionally, participation in adolescent sports continues to grow; during the 2022-2023 school year, nearly eight million individuals participated in high school athletics. Despite the perceived psychological benefits of participation in sports, athletes and non-athletes continue to experience mental health issues at roughly the same rate. This suggests that some aspects of athletic participation may actually cancel out the psychological benefits of athletic participation by having harmful effects on the mental health of young athletes.

Volume 100

Lars Noah

With growing resistance to vaccinations—premised, for instance, on misplaced fears of side effects or religious objections—it takes little effort to imagine that a state might act to prohibit some or all uses of a particular vaccine licensed by the federal government. Indeed, one year ago, legislators in a couple of states toyed with the idea of banning the primary vaccines against Covid-19, and, twenty years ago, half a dozen states effectively barred certain uses of one flu vaccine formulation. Although federal law should preempt at least some of these types of state restrictions, the Supremacy Clause of the U.S. Constitution provides only a limited safeguard against such extremism.

Volume 99

George Glass

In their first year of law school, students are introduced to four theories that attempt to justify punishing people who commit crimes—retribution, deterrence, incapacitation, and rehabilitation. These “four horsemen of the carceral state” have led to the ballooning mass incarceration our country faces today. However, these four justifications are not written in stone. In fact, evidence suggests that each of the four justifications fails to effectively address criminal activity. This Note explores the current state of criminal legal education, addresses the shortcomings of each of the four justifications, and proposes a new criminal response framework that builds off the old justifications and incorporates prison abolition concepts. That new framework is built on non-punishment, retributive punishment, preventive justice, and holistic rehabilitation.

Volume 99

William Casto

This little Essay presents a framework for teaching the Erie Doctrine. It is not a grand analysis of the federal courts’ puzzle. It does not even offer a wondrously insightful vision of one of the puzzle’s colorful pieces. Rather, the purpose is quite modest. The essay simply aims to help students to organize their thoughts about whether a particular legal issue is governed by state or federal law. Given the Essay’s limited and wholly heuristic purpose, the usual endless parade of all possible cases and the careful rehearsal of exquisite and finely-tuned factors and considerations are eschewed.

Volume 99

Mehtab Khan

Automated tools used in online speech governance are prone to errors on a large- scale yet widely used. Legal and policy responses have largely focused on case-by- case evaluations of these errors, instead of an examination of the development process of the tools. Moreover, information on the internet is no longer simply generated by users, but also by sophisticated language tools like ChatGPT, that are going to pose a challenge to speech governance. Yet, legal and policy measures have not responded adequately to AI tools becoming more dynamic and impactful. In order to address the challenges posed by algorithmic content governance, I argue that there is a need to frame a regulatory approach that focuses on the tools used in both content moderation and content generation contexts—which can be done by viewing this technology through an algorithmic accountability lens. I provide an overview of the various aspects of the technical and normative features of these tools that help us frame the regulation of these tools as an algorithmic accountability issue. I do this in three steps: First, I discuss the lack of sufficient attention towards AI tools in current regulatory approaches. Second, I highlight the shared features of both content moderation and content generation to offer insights about the interlinked and evolving landscape of online speech and AI Governance. Third, I situate this discussion of speech governance within a broader framework of algorithmic accountability to guide future regulatory interventions.

Volume 99

R. George Wright

Some Supreme Court cases amount, at their best, to missed opportunities. The Supreme Court’s recent case Counterman v. Colorado resolved, quite dubiously, one particular issue of mens rea. In the course of doing so, however, the Court ignored a variety of clearly presented issues of even greater significance.

Full article available here.

Volume 99

Charles M. Lamb & Jacob R. Neiheisel

This article spotlights how University of Chicago Professor David Strauss’s publications present the early stages of a descriptive theory of constitutional interpretation and evolution, and how his theoretical contributions might be strengthened. Specifically highlighted here are ten milestone Supreme Court rulings with the objective of determining which were “evolutionary” as opposed to “modernizing,” based on Strauss’s theoretical formulations. On various occasions these cases demonstrate how Strauss’s theory can be not only refined but broadened. The concluding section assesses Strauss’s contribution to the study of American constitutional development and how it might be revamped. There we argue that despite Strauss’s influence on the study of the Supreme Court and constitutional evolution, he relies on concepts that must be clarified and honed for future research, and he must make his theory more comprehensive. At a minimum, Strauss should extend his descriptive theory to three types of Supreme Court decisions: those that are retrogressive, revolutionary, and confirming status quo in nature. Finally, Strauss should attempt the most difficult task of all: developing a causal theory of constitutional change.

Volume 98

Brennan Murphy

Ongoing faith in judicial decision-making is predicated on the fairness of judicial institutions. After all, “[a] fair trial in a fair tribunal is a basic requirement of due process.” Any legal system that respects the rule of law must ensure impartiality in the adjudication of disputes—not just in the courts, but in all forms of adjudication. Therefore, adjudications of student discipline cases in higher education (at least at public institutions) must abide by the judicial ethic of impartiality as a matter of due process.Students in similar situations must be treated equally to avoid injustice, without regard to adjudicators’ biases or conflicts of interest, because school disciplinary systems will not work if they seem unjust to students.

Volume 98

Michael E. Solimine

The “shadow docket” is the term recently given to a long-standing practice of the U.S. Supreme Court, in granting or denying requests for stays of lower court decisions, often on a hurried basis with rudimentary briefing and no oral argument, and with little if any explanation by the Court or individual Justices. Recently, the practice has received unusual attention inside and outside the legal community, because of its seemingly increased use by the Court in high-profile cases, with the emergency orders often sought by the federal government or state officials. Scholars have advanced various reforms to ameliorate the perceived problems of the shadow docket. One suggestion is to require suits against federal statutes and policies to be litigated before a specially convened three-judge district court, perhaps in the District of Columbia, with a direct appeal to the court. Supporters argue that this process would result in more consistent decision-making by the Court and lower courts.

Volume 98

John Bignotti

The Individuals with Disabilities Education Act (IDEA) guarantees access to a specialized, appropriate public education for youth with disabilities in the United States. While progress has been made and this right to education extends to incarcerated youth as well as those outside the juvenile justice system, there is nonetheless a fundamental limitation on how this federal requirement is imposed in the carceral context: it is enforced through primarily reactive mechanisms. Lawsuits, state compliance regimes, and consent decrees can hold states and juvenile facilities accountable after systemic failures to comply with the IDEA; however, the inherent inconsistency and slow pace of this system call for a paradigm shift toward a more active federal government role in enforcing the right to special education in juvenile facilities. This paper will first explore the way scientific understandings of disability and the social context of disability inform this need for change, then provide a walkthrough of the current state of how the law has addressed this issue, and lastly identify how a more aggressive monitoring and compliance regime might improve access to education for youth with disabilities who are caught in the juvenile justice system

Volume 98

By Harold J. Krent

In the upcoming term, the Supreme Court will hear argument in Cochran v. SEC, in which the en banc Fifth Circuit departed from its sister circuits to hold that federal courts may entertain constitutional challenges to administrative agency structure even when administrative proceedings are pending. On the one hand, the cognate doctrines of finality and implied preclusion would lead courts to stay their hands and await the outcome of the administrative proceeding to determine whether their intervention is needed. On the other, forcing the litigant to raise the structural claim before an administrative entity that has no power to declare itself unconstitutional seems futile and a waste of the litigant’s resources.

Volume 97

By Elaina H. Wilson

In the United States, children with disabilities are afforded protections in three federal statutes: the Individuals with Disabilities Education Act; Section 504 of the Rehabilitation Act of 1973; and the Americans with Disabilities Act of 1990. However, these laws fail to provide for educational support dogs in public schools, despite the common and successful use of educational support dogs in other countries. The success of educational support dogs abroad is not suprising, as recent waves of social science research make clear the benefits of dogs in schools, from increased productivity within the classroom to improved morale within the school community at large. Additionally, this research suggests that dogs in educational settings can have the biggest impact on children with disabilities. Still, these U.S. laws generally bar children with disabilities from accessing educational support dogs in public schools.

Volume 97

By Olivia Bauer

The Endangered Species Act (ESA) is the strongest source of federal protection for species that are at risk of extinction, and the ESA is becoming increasingly important as climate change threatens species and their habitats more than ever. In 2019, the Trump Administration amended the ESA to provide clarity and predictability when making decisions to list a species as threatened or endangered under the ESA. The Administration defined “foreseeable future” in a way that starkly limits how far into the future the listing agencies may look when assessing risks to species. Prior to the 2019 definition of “foreseeable future,” the federal agencies in charge of deciding to list species under the ESA faced risk uncertainty when assessing the likelihood and magnitude of threats to species and their habitats from climate change predominantly because of scientific uncertainty and difficulty predicting mitigation efforts.

This Note argues that instead of the 2019 amendments providing the intended clarity and consistency, the “foreseeable future” definition instead weakens the substantive standards used in the ESA listing process, limits federal agencies’ ability to consider climate change when making decisions on whether to provide species with ESA protections, and ultimately will push climate-imperiled species further toward the risk of extinction. To provide more effective guidance to the agencies making listing decisions under the ESA, revised rulemaking should require the agencies to explain how they deal with uncertainties and species’ risk of endangerment and to apply standards consistently.

Volume 97

By Sung Eun (“Summer”) Kim

California’s Assembly Bill 979 (AB-979) requires companies that are based in California to have a specified minimum number of directors from underrepresented communities. A “director from an underrepresented community” is defined as an individual who self-identifies as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native, or who self-identifies as gay, lesbian, bisexual, or transgender. AB-979 received much attention for being the first law to mandate greater diversity on corporate boards in terms of race and sexual orientation. Senate Bill 826 (SB-826), which was introduced two years prior, was the first U.S. legislative effort to mandate greater gender diversity on corporate boards. AB-979 and SB-826 have received both intense praise and vehement criticism. The debate over the California board diversity bills raises fundamental questions about the proper role of the state in using its power to regulate corporations to advance public values. In this Article, I summarize and respond to the various legal challenges that have been raised against California’s board diversity bills and argue that the precedent-setting efforts of the California legislature are consistent with the original design of corporate law in the United States, which is built on a model of federalism and state competition.

Volume 97

By Mantas Grigorovicius

In 1954, Gordon Allport, one of the nation’s leading social psychologists, laid out a hypothesis explaining how prejudice could be reduced by intergroup contact. Decades later, his hypothesis became a theory with thousands of research hours behind it. Under contact theory, one of the factors that facilitates a reduction in prejudice between two groups is support of authorities or law. This Comment focuses on Bostock v. Clayton County, a recent Supreme Court decision holding that Title VII prohibits discrimination based on sexual orientation. Allport suggested that anti-discrimination laws help to “lead and guide the folkways,” and this Comment explores how Bostock could do just that in the context of prejudice. Bostock will allow for more contact with LGBTQ people and, by sending a message that discrimination is not condoned, Bostock can eventually change how society views LGBTQ people. Under contact theory, Bostock’s antidiscrimination protections will establish antiprejudicial societal norms and, as a result, religious groups that show animosity toward nontraditional couples may eventually begin to accept them.

Volume 97

By David Nows

In the coming years, there will be a growing supply of small businesses held by aging owners that need to execute a succession plan, transitioning the business to a new owner that can carry the business forward in future years. Unfortunately, very few of these Baby Boomer-led businesses have a plan for who will take over for the primary business owner when the time comes, creating an emerging leadership crisis. However, there is an underutilized acquisition strategy that allows for a motivated and skilled entrepreneur to team with a small group of investors to search for (and ultimately to purchase) an existing small business. This paper highlights these transactions, often referred to as acquisition entrepreneurship through search funds, as a viable way to connect retirement-age business owners with an entrepreneur ready and willing to take over the business. Additionally, this paper endorses two strategies for educating entrepreneurs and investor groups on acquisition entrepreneurship, with the goal of making these complex transactions more accessible and more common.

Volume 96.

By Bailie Mittman

Since the birth of the Bill of Rights in 1791, the freedoms protected by the First Amendment have been cherished by all members of this nation. The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” Over time, courts have acknowledged that the freedom to speak freely means very little if the guarantee is not protected by an additional right: the freedom to associate. Thus, the freedom of expressive association stands as an essential component of an individual’s free speech rights and state infringement on associative rights has the power of potentially chilling speech, especially from an organizational standpoint.
Throughout the relatively short history of the right to associate, the courts traditionally applied strict scrutiny to governmental attempts to intervene in organizations, whether such intervention be via imposing penalties on disfavored groups, requiring disclosure of membership groups, or attempting to interfere with a group’s internal organization or affairs. However, in two recent cases, Citizens United v. Schneiderman and Americans for Prosperity Foundation v. Becerra, two different appellate courts found the freedom of expressive association of either organization was not infringed upon when applying intermediate, exacting scrutiny to state laws mandating the disclosure of nonprofit organizations’ annual Form 990s. These forms, filed yearly with the IRS to maintain tax-exempt status, include a Schedule B that contains a list of the names and addresses of all significant donors to the organization. The plaintiffs in both cases argued the forced disclosure of these donors would chill the organization’s freedom of speech rights by making it more difficult to secure donations from individuals who feared being publicly associated with organizations promoting various minority viewpoints. Ultimately, both appellate courts found these arguments to be unpersuasive and upheld the state laws.

Volume 96

By: Katelyn K. Leveque

The American Bar Association’s Model Rules of Professional Conduct (“Model Rules”) have long addressed conflicts of interest, with fluctuating degrees of stringency.1 For as long as the rules have been in place, legal scholars have grappled with how lawyers can work within the confines of the rules to serve their clients best, as well as how the rules might better align with what clients seek and expect from their legal representation. In their current form, the Model Rules address conflicts of interest in Rule 1.7. However, both this rule and the Model Rules more generally are not one size fits all. The Model Rules were written largely with litigators in mind, and thus applying them to transactional matters is often awkward and tenuous.2 In this Note, I will argue that Model Rule 1.7 should be amended to account for the differences in the ways that litigators and transactional attorneys should and do conceptualize conflicts of interest in their practices. Part I outlines the history of Rule 1.7 and its predecessors, and walks through Rule 1.7 and the comments as they exist today. Part II details the reasons that legal scholars argue Rule 1.7 is a valuable and necessary rule. Part III describes the incongruities between Rule 1.7’s parameters and the realities of transactional lawyering. Part IV discusses solutions that have been put forward to make up for the drawbacks of Rule 1.7 in its current iteration. Finally, Part V offers my proposed solution to the problem of applying Rule 1.7 to transactional matters: amend the rule and create subparts that pertain specifically to transactional lawyers, who have less need for a ban on conflicts of interest.