Assessing the Tax Communications of E-Commerce Vendors, Part I

This article reports research results from a study analyzing the tax communication practices of top e-commerce retailers and marketplaces. The research found a spectrum of tax communication practices. Notably, many (but not all) e-commerce businesses that did not collect sales tax did still inform customers about potential use tax obligations, though the transparency of this information varied

The Fintiv Pendulum Swings Again: More Discretionary Denials Coming Soon

This article examines the USPTO’s recent rescission of the June 2022 Vidal memorandum, signaling a significant policy shift in the Patent Trial and Appeal Board\u27s (PTAB) approach to discretionary denials of inter partes reviews (IPRs). The rescission reinstates the precedential status of Apple Inc. v. Fintiv, Inc. and its six-factor test for evaluating whether to deny IPR institution based on parallel district court litigation. The article traces the evolution of discretionary denials under the America Invents Act (AIA), from their initial limited application to the expansive approach under Director Iancu, the subsequent narrowing under Director Vidal, and now the anticipated return to broader PTAB discretion under President Trump. This policy shift will likely increase discretionary denials and incentivize patent owners to accelerate district court proceedings to avoid PTAB review. The article contextualizes this change within the broader pendulum of patent policy and examines its implications for patent litigation strategy, highlighting how it may redirect access to what has become America\u27s most active patent litigation forum

The Second Amendment Preservation Act: Revealing the Realities of Congress’s Commerce Clause Power

“If men were angels, no government would be necessary.” When James Madison published this in the Federalist Papers, the United States Constitution was not even a year old. The Framers were striving to convince American citizens of the Constitution’s vitality while simultaneously grappling with the challenges of developing what the new government, as to be set forth in the Constitution, should look like. The challenge, as identified by Madison, was that the government needed the power to govern while retaining the ability to control itself. The Framers sought to address this problem by creating a system of federalism. But rather than adopting a particular section or provision dedicated to federalism, the Framers interwove federalism principles throughout the Constitution. These principles continue to permeate the functioning of the federal government and state governments today

The Clock is Ticking: Legal Barriers in § 1983 Execution Protocol Challenges

At 7:53 p.m. on January 25, 2024, the curtains opened, revealing Kenneth Smith strapped down in the execution room, covered by a white sheet. A respirator mask covered his face, serving as the conduit for nitrogen gas that Smith would soon inhale. The prison warden entered the execution chamber, read Smith’s death warrant, and allowed Smith to share his final words: “Tonight Alabama causes humanity to take a step backwards. I’m leaving with love, peace[,] and light . . . . Love all of you.” Alabama’s Attorney General permitted the warden to continue, signaling no court orders were staying the execution. At 7:58 p.m., nitrogen gas flowed through the respirator, and “Smith began to shake and writhe violently, in thrashing spasms and seizure-like movements.” Smith’s arms moved against the gurney’s straps, his head raised, and then he collapsed back. This “shaking went on for at least two minutes” until he began taking “deep gasping breaths,” with which his chest noticeably rose. A corrections officer checked on Smith at 8:08 p.m. when his breathing was no longer visible. At 8:15 p.m., the curtains were closed and Smith was pronounced dead at 8:25 p.m

The Essence of an Antitrust Violation

Judicial embrace of the consumer welfare standard reduced the indeterminacy and political manipulability of U.S. antitrust law. Continual invocations of antitrust’s consumer welfare focus, however, have created the misimpression that consumer harm is a sufficient, not merely a necessary, condition for condemning antitrust-relevant behaviors like agreements in restraint of trade and exclusion-causing unilateral acts. Such a “consumer harm sufficiency” view underlay the plaintiffs’ claims in Epic Games v. Apple and FTC v. Qualcomm and has inspired scholarly proposals to condemn various antitrust-relevant behaviors simply because they occasion consumer harm. Antitrust economics and dynamic efficiency considerations call for rejection of the consumer harm sufficiency view in favor of an approach that condemns antitrust-relevant conduct only when it (1) enhances the surplus-extractive power of the defendant or its co-conspirator (2) by weakening competitive constraints and (3) is not reasonably necessary to secure efficiencies sufficient to produce a net increase in market output. This Article contends that these three components collectively comprise the essence of an antitrust violation and are each necessary for condemnation of antitrust-relevant conduct. This view, termed “antitrust essentialism,” is consistent with every major antitrust liability rule except one: the rule of per se liability for certain tying arrangements. The justification offered for condemning tie-ins that do not involve all three essential elements is that they may nevertheless reduce consumer welfare, an argument that embraces the consumer harm sufficiency view. To reconcile its inconsistent caselaw, ensure that antitrust doctrine optimally protects consumer welfare, and reduce the administrative costs of antitrust litigation, the U.S. Supreme Court should (1) abandon the per se rule against certain tie-ins in favor of a rule of reason that requires substantial tied market foreclosure, a standard consistent with antitrust essentialism; (2) expressly declare that antitrust liability requires the three elements catalogued above; (3) allocate proof burdens on the elements, with the plaintiff having the burden to plead and prove the first two and the defendant having the initial burden to show an absence of the third; and (4) impose a generally applicable “market power enhancement” requirement akin to the existing antitrust injury requirement. Such an antitrust essentialist approach would have led to swift disposition of misguided and costly cases like Epic Games and Qualcomm and would resolve a pending circuit split concerning liability for misrepresentation in the standard-setting process

The Buck Stops Here: Missouri Legislature’s Defunding of Abortion Providers

On May 2, 2022, the Supreme Court’s draft opinion for Dobbs v. Jackson Women’s Health Organization leaked online. The era-defining opinion to overturn fifty years of Roe v. Wade and undo the constitutional right to abortion reinvigorated the discussion surrounding reproductive healthcare access among the American public, with the majority of Americans supporting legal access to abortion in all or most cases. Over the last decade, a movement to defund abortion providers has arisen, and the issue of defunding has become an even hotter point of debate after the Dobbs decision. In Missouri, elected representatives have fought to defund Planned Parenthood and other abortion providers—both actions that are now subject to legal challenges under the Missouri State Constitution

Promoting Better Dispute Decision-Making with an AI Tool Built on RPS Theory

Traditional theories of negotiation and mediation rely on rigid models, false dichotomies, and confusing terminology that fails to reflect the complexity of real practice. This article critiques those theories and introduces Real Practice Systems (RPS) theory as a more accurate and practical alternative. RPS theory conceptualizes negotiation and mediation as sequences of professional judgment shaped by context, experience, and goals, rather than as idealized or linear processes. It promotes a realistic and ethically responsible practice by encouraging reflection, intentional process design, and adaptability. The article introduces “RPS Coach,” a free artificial intelligence tool built on the ChatGPT platform. It is designed to support good decision-making by parties, lawyers, mediators, educators, and program administrators. It helps users prepare, analyze, reflect, and improve their practice habits over time. The article concludes by considering the promise and limitations of AI in dispute resolution and offers a vision for AI tools that enhance rather than replace human judgment

Breaking Kayfabe

The membership of the Supreme Court affects how it decides cases. This maxim is well accepted among the public. But it is exceedingly rare for Supreme Court opinions to acknowledge this fact, even when it provides the best explanation for the Court’s behavior. And in the unusual instance in which Supreme Court opinions do refer to changes in the Court’s membership, it is jarring. This Article explores two questions that flow from these uncontroversial facts. First, why does it happen so rarely? Second, why does it happen at all? To answer these questions, the Article looks to an unusual source: professional wrestling. Wrestlers have a term for the official story told to the audience, the fiction the performers maintain for the benefit of the show: kayfabe. While kayfabe was once a strict trade code of silence, nowadays just about everyone knows that wrestling is staged. Yet even today, because it is essential to the performance, wrestlers rarely “break” kayfabe—and betray the fiction—in the ring. Nevertheless, breaking kayfabe is more common than it once was, in part because performers can break kayfabe to advance their strategic goals in and out of the ring