The current federal sentencing scheme is a patchwork quilt of provisions that grant judges virtually unfettered and unreviewable discretion imposing sentences on the front-end and in granting compassionate release on the back end. It was not designed in the beginning to be this way. The advisory-only sentencing guidelines scheme we have now resulted from the Supreme Court’s finding that mandatory guidelines violated the Constitution. The recent sentencing reform movement—of which compassionate release is a significant part—has sought to find ways of ameliorating what is seen as the draconian result of the war on drugs. The question is whether granting Article III judges, appointed for life, unlimited discretion on both the front and back ends of sentencing is wise. This Article suggests not. Rather, it argues we should consider reinstituting a reconstituted form of parole to place back-end changes in sentences in the discretion of parole boards. By placing the discretion in parole boards, acting under the executive branch of government, it rebalances power between the branches of government. Parole boards would be better equipped than judges to investigate and evaluate the merits of motions for compassionate release and would be democratically more responsive to the people indirectly through the ballot box. The danger of allowing the authority to grant compassionate release to remain with judges, of vesting unchecked power with judges to determine both the front-end sentence, and back-end motions for release from prison, is arbitrary justice that leads to unwarranted sentencing disparities.

What can be learned when a Supreme Court Justice decides to write a lone dissent? There exists a powerful set of incentives for Supreme Court opinions to achieve consensus. Although closely divided cases grab news headlines, unanimous opinions are actually the most commonly issued judicial alignment, and cases in which a single Justice dissents are the most unlikely. Despite voluminous academic discussion of judicial behavior, no legal scholarship has focused on the lone dissent. This Article is designed to insert consideration of lone dissenting opinions into the broader discussion of judicial behavior.

Looking at the set of Supreme Court opinions in which there is a lone dissent from the appointment of Chief Justice Vinson in 1946 through the end of the 2022–23 Term, we explain how lone dissents occur in cases of particular salience to the dissenting Justice. This Article also details that the stakes of the litigation create an incentive for the dissenting Justice to risk institutional opprobrium in order to insert their counter interpretation of the law into the written record. This Article then goes even deeper, examining the moment a Justice decides to issue a lone dissent for the first time. We conclude that these initial lone dissents are crucially important datapoints to explain a Justice’s subsequent jurisprudence and judicial identity. The first lone dissent is carefully selected by each Justice to signal support for important constituencies and to define the Justice who must write in opposition to all of their colleagues for the first time. The examination of a Justice’s legal philosophy and broader jurisprudence is incomplete without an examination of this one seminal moment of judicial behavior.

This Article offers novel observation and critical intervention in the challenge to state laws which have been adopted, allegedly, to prevent the teaching of critical race theory (CRT) in public schools. Against the trend of recent scholarship that understands these laws as curricular censorship of topical subjects and seeks to contest their validity on those grounds, this Article more accurately identifies them as pedagogical censorship: Limits on teaching methods, which raise different, potentially more dispositive questions about the states’ educational decision-making authority—questions that the U.S. Supreme Court has long sought to avoid. But exposing these so-called “anti-CRT” laws as neither reflecting a “legitimate pedagogical concern” nor pursuing a “valid educational purpose” is all for naught under current doctrine that effectively presumes the legitimacy and validity of state educational actions without question. And so, this Article argues for adjusting this conclusory presumption into a rebuttable one, and it turns to education science and practice on teaching and learning for expert insight on which actions satisfy this basic condition. This Article’s proposed “workable constitutional rule” is the rarest of doctrinal interventions that would be simultaneously corrective, conservative, and critical. The irony elaborated by this Article is that these so-called “anti-CRT” laws had little to do if anything with critical race theory. It was the states’ misappropriation of CRT for political purposes that elevated the theory to doctrinal, popular, and pedagogical prominence. That it took “much ado about critical race theory” to begin meaningful constitutional inquiry in various stakeholders’ interests in how states choose to educate is befitting—and instructive.

We have understood for centuries that crime is both the product of social forces and individual choice. We know now that crime is affected by economic deprivation, addiction, trauma, and mental health issues. But American criminal legal processes hide this reality by coercing defendants into expressing a profoundly simple narrative: crime is solely individual choice to do wrong. This coerced narrative finds defendants during a plea colloquy standing up in court saying that they are pleading guilty because they are guilty and for no other reason. A defendant who goes off-script to tell the judge that they have been repeatedly attacked runs the risk that the judge will refuse to accept the guilty plea and punish them at sentencing. That narrative of pure individual choice plays out throughout the criminal process. This Article focuses on the plea colloquy, sentencing, and parole. It also discusses how trial drives the same narrative but without coercing the defendant’s participation.

Coercing defendants to tell a story that is not their own is troubling in its own right. And it perpetrates epistemic injustice, yielding a damaged public understanding of crime. It hides our own societal failings and lets us distance ourselves from the wrongdoers. It pretends that threatening ever-harsher punishment will keep us safe—prioritizing a cheap illusion of safety over actual safety. And by stifling the stories that could build counternarratives it insulates our system of mass incarceration from this fundamental critique. If crime is driven, at least in significant part, by unaddressed trauma and poverty, better mental health care and an expanded social safety net could promote public safety more effectively than increased threats of cages.

Home equity sharing agreements are on the rise throughout the country. In a home equity sharing agreement, homeowners are given a lump sum of cash, upfront, in exchange for a portion of their home’s future value. Agreements are structured however the investment company prefers and are not subject to any state usury caps, mortgage loans, or federal lending laws. The investment companies believe that their product is exempt from all of these requirements, despite the high risk that home equity sharing poses to consumers. In reality, home equity sharing agreements are dangerous, unregulated mortgage loans, which are being utilized by unsophisticated and vulnerable consumers.

This Note explores the new phenomenon of home equity sharing agreements, compares them to typical home loans, touches on current state regulations that may address the issue,

and proposes a federal regulation to protect consumers who use these products. The proposed federal statute combines the strongest parts of the state regulations, while adding additional protection typically seen in federal consumer protection statutes, such as the Truth in Lending Act.

Ultimately, this Note expresses the idea that home equity sharing agreements must be regulated to protect consumers but not dismantled so as to remove the possibility of these becoming more common home loan arrangements. With the right amount of research and control, home equity sharing agreements could be the answer to many homeowners’ cash flow problems.

A robust patent system is important for spurring innovation, but it is not without risk. Because a patent owner has exclusivity over the patented subject matter for a specific term, there is incentive to extend that monopoly however possible. Identical subject matter is unpatentable, but obvious variants of an existing patent may be allowed if the applicant agrees to the same expiration date for both patents. This agreement is called a terminal disclaimer. While patents tied together with terminal disclaimers may not necessarily lead to unjust patent term extensions, an army of terminal disclaimers directed at one invention presents a different problem: it creates a patent thicket. This problem is especially prevalent in the pharmaceutical industry. When brand-name drug manufacturers create patent thickets, they often deter competition from generic manufacturers because the cost of cutting through significant numbers of patents can be extremely high. The consumers ultimately suffer.

The United States Patent and Trademark Office (USPTO) recently attempted to curtail this kind of patent gamesmanship. The USPTO’s proposed rule would have allowed challengers to invalidate entire patent groups by striking one claim of one patent in the group. Though the proposal ultimately failed for reasons explored in this Note, it did seek to address the seemingly growing threat of dense patent thickets. This Note suggests two alternative solutions: adopting an improvement patent model and banning direct-to-consumer (DTC) pharmaceutical advertising. The improvement patent model would require inventors who apply for minor improvements to their original invention to relinquish exclusivity over the prior invention to allow competitors to practice the patented material. A ban on DTC advertising would decrease the financial incentive brand-name manufacturers have to extend their monopolies by decreasing the often artificial demand for their products.