The United States is in the midst of a worsening affordable housing crisis. Poverty levels and the average price of rent are on the rise across the nation, and specifically in Iowa, which is contributing to an increase in housing instability. There are many approaches to fixing the issue of housing instability, but one stands out as a simple and seamless incorporation into Iowa's current legal system: eviction expungement. Evictions in Iowa now leave a permanent mark on a tenant's record, whether the tenant wins or loses their case. This lifelong record makes it much more difficult for tenants to find future housing, especially for low-income tenants who can afford only select accommodations. Because affordable housing is becoming scarcer, an eviction on a tenant's record will result in lifelong housing challenges. This punishment is not only severe, but it is wholly inconsistent with the purpose of long-term punishments: dissuading future offending. Many circumstances that result in lawful eviction are beyond the tenant's control. In those circumstances, the law subjects the tenant, an "innocent offender," to a similar method of punishment as is used for violent criminals. By incorporating eviction expungement-specifically, Minnesota's process of mandatory expungements- all Iowan renters, and especially low-income renters, would be relieved from the lifelong punishment currently imposed upon them.
The Wisconsin Supreme Court has entered a politically tumultuous landscape. The Court has recently flipped from a long-held conservative majority to a liberal one, causing many new developments throughout the Wisconsin court system. Prime among them is the increased use of a relatively obscure procedure for expedited Supreme Court review: the petition for bypass. At a high level, this procedural mechanism allows litigants to bypass the court of appeals entirely to get direct Supreme Court review of a trial court decision. And often, the Supreme Court grants these petitions in politically controversial cases in Wisconsin. Although relatively unused historically, the newfound use of the petition for bypass in Wisconsin reveals several issues. First, the effect on litigation in the court of appeals is thrown into disarray since lower court litigation is not immediately paused when a bypass petition is pending. Second, it is not always clear when the Supreme Court will grant these petitions, as the rule governing the petition for bypass lacks clarity as to what factors bear on the Court's consideration of whether to grant one. This opacity in the rule enables abuse by both litigants and the Supreme Court-often for political reasons. This Note argues for reforming the Wisconsin Rules of Appellate Procedure to provide clarity, predictability, and transparency to the court of appeals, litigants, and the public in the petition for bypass process.
This Article argues that competition law, contrary to the hopes of policymakers and scholars that it offers a powerful tool to combat privacy harms, operates as an anti-privacy framework. Far from a means to address widespread surveillance by market-dominant platforms and other data-intensive firms that monetize the collection and analysis of personal information, competition law's analysis systematically privileges corporate interests at the expense of consumer protection. This analysis proceeds in two parts. First, the Article identifies the specific competition law concerns raised in recent regulatory enforcement actions and private litigation involving Big Tech, as well as leading scholarship, regarding the ways in which large technology firms secure, enhance, and exploit market power through collection and use of personal data. It then provides an analytic framework that identifies circumstances in which competition concerns align with privacy concerns, pointing in the same regulatory and logical direction, and other circumstances in which those two sets of concerns misalign: where remedies for one might harm the other. Our framework untangles these two sets of concerns and reveals that a majority of competition arguments misalign with privacy. In some misalignment scenarios competition concerns are merely orthogonal to those of privacy, but there is every reason to expect that privacy will be harmed rather than promoted. In others, competition and privacy directly conflict, meaning that promoting competition directly degrades privacy. Second, the Article reveals two fundamental analytic errors that regulators, courts, and commentators make about privacy in a market setting. These errors dictate privacy-destroying outcomes, even in the instances in which privacy and competition concerns do align. In the first error, regulators adopt a cramped understanding of the right to privacy as either a superficial concept limited to issues like consent, consumer choice, or data security, or as a means to broader economic goals rather than an essential value on its own terms. Thus, they fail to comprehend privacy as freedom from surveillance. In the second error, competition regulators prioritize markets for surveillance over markets for privacy, either through an agnosticism regarding the substance of the market and a resulting choice to promote the more lucrative and thriving market for surveillance; or through a conceptual confusion between surveillance and privacy markets that obscures the surveillance market's privacy harms. These errors combine, we show, in a harsh outcome: that privacy concerns are credited in competition analysis only when doing so promotes the health and competitiveness of privacy-eviscerating surveillance markets. The resulting regulatory imbalance ultimately reinforces the dominance of surveillance-driven business models at the expense of consumer and civil rights. This analysis underscores the conclusion that privacy cannot be effectively regulated through the back door of competition. Rather, the market for personal data should be regulated directly, as we do in other contexts plagued by market failures and harmful underlying behaviors.
The citizen initiative allows voters to bypass state legislatures and propose laws for a statewide referendum. It exists in twenty-four states but has national significance because initiatives drive reform on contested issues. Recently, courts have begun to clamp down on the initiative. One significant trend is the strict enforcement of the single-subject rule to strike initiatives when they are considered too broad. Although courts are notoriously inconsistent with the rule, they assert two reasons for aggressive enforcement. First, they claim the rule's historic purpose is to prevent any form of "logrolling"-including any imaginable aggregation of public-regarding voting blocs. Second, courts assert that regardless of the rule's history, normative concerns require judges to aggressively enforce the rule to protect voters from confusion and "false choices." This Article assesses these claims. Drawing on all known state constitutional convention debates where the single-subject rule was introduced and discussed (sixty-three debates beginning in 1837), the Article shows that the rule was primarily responsive to two specific nineteenth-century problems: (1) legislative dysfunction caused by local and private laws; and (2) outdated rule-of-law concerns caused by uncatalogued statutes. Contrary to the unsupported assumption of most courts, nothing about the rule's origin story requires courts to apply it as a strict ban on aggregating public-regarding voting blocs in statewide referenda. Moreover, drawing on up-to-date empirical research and public choice theory, the Article shows that aggressive judicial enforcement of the single-subject rule is more harmful than helpful to the initiative. As it turns out, referenda are more effective at disaggregating ballot questions than courts, and aggressive judicial enforcement mostly results in judges striking initiatives that do not align with their personal policy preferences. The Article concludes by sketching a more constructive path forward for courts that prioritizes a deferential standard of review for generalized public policy initiatives, a heightened standard for local or private entitlements, and more collaborative remedies (like writs dividing initiatives into separate ballot questions rather than striking them in toto).
Third-party litigation funding, often referred to as TPLF or litigation finance, is an arrangement where a third-party lender provides financial backing to a litigant pursuing a legal claim in exchange for a payout if the case is successful. The litigation finance industry has become increasingly popular as more claimants seek to avoid the high costs of litigation, yet, despite this growth, the United States has failed to implement any formal federal regulations on TPLF. This gap leaves an enormous amount of pressure on states and courts to try and police litigation funding arrangements. Three antitrust cases involving protein distributors and producers highlight an emerging issue in the litigation finance industry where funders are trying to enter a litigation by substituting themselves for the party they are financing. Even if the original party wants to settle, substitution allows funders to continue to pursue the claims in order to seek the highest possible return on their investment. Calling on the medieval doctrines of maintenance and champerty, as well as federal and state public policy considerations, courts are split as to whether or not litigation funders should be permitted to enter into a litigation midway through a suit. This Note argues that litigation funding agreements that contractually permit a funder to have control over a litigation are champertous and thus violate public policy. Further, substitution of litigation funders contravenes the foundational and well-grounded principle of "justice" within the Federal Rules of Civil Procedure and disregards the promotion of obtaining settlements within the American legal system.
Across different legal domains, liability doctrines recognize the value of community input. But do courts truly listen to the community's voice when deciding these sorts of cases? This study is the first to explore how courts treat community opinion survey evidence within both civil and criminal law. To that end, we comprehensively examine trademark, false advertising, patent, antitrust, obscenity, death penalty, and search cases. Our research uncovers a significant asymmetry: Courts readily admit survey evidence in civil proceedings but systematically exclude it in criminal cases. This asymmetry does not appear to stem from structural differences between civil and criminal litigation systems, nor from differences in judicial bureaucracies. Instead, we argue, its source is judicial decision-making bias. We contend that in criminal cases, judges feel comfortable with and morally able to decide issues without outside input. But judges have fewer (if any) moral intuitions about the salient issues in civil cases, leading them to be more willing to accept community input. This asymmetry unfairly denies criminal defendants the opportunity to present empirical evidence that more accurately reflects the standards that are expressly part of these criminal doctrines. By documenting this potential judicial bias, we challenge existing evidentiary practices that disadvantage criminal defendants and compromise legal fairness. Situated at the intersection of empirical legal studies, evidence law, and judicial process theory, this Article offers novel insights for legal scholars, practitioners, and judges who seek to improve judicial decision-making. We propose concrete recommendations, including encouraging judges to explicitly recognize survey evidence's relevance and urging all legal professionals to develop greater empirical literacy.
At a time when invasive species are spreading like never before and posing increasingly greater threats to trees, government at all levels is plagued by disconnection and inaction. Instead of uniting and putting maximum effort into preserving such vital resources, the federal government has largely left the states to act on their own. As new treatments and management methods emerge, they are not implemented equally. Rather, states take vastly different approaches, with some having more stringent guidelines and others barely having any. This is especially true of firewood regulations. Firewood is a major pathway by which invasive insects spread. As such, states have attempted to regulate its transportation, though these regulations are no more unified than any other area of invasive species law. Iowa falls near the lax end of the firewood regulation spectrum, having only labeling requirements with no general quarantine or heat treatment standard. This Note proposes that the state implement such standards, allowing it to be more preventive in its approach to invasive species than reactive. By doing so, Iowa will be better equipped to handle the invasions that are sure to come and preserve its resources in the face of a growing crisis.
Joint bank accounts, once known as a "poor man's will,"emerged more than a century ago as a probate avoidance device. This Article contends that joint accounts no longer serve a useful estate planning function, and they pose an unacceptably high risk to banking consumers because the legal framework governing lifetime ownership rights is deeply flawed and underdeveloped. Courts typically apply one of two prevailing models for allocating lifetime rights: (1) the traditional joint tenancy approach, which presumes equal ownership of account funds by each party; and (2) the Uniform Probate Code's approach, which presumes ownership in proportion to each party's net contribution. Neither ownership model is well-suited to implement the depositor's actual intent, and both are plagued by unacceptable levels of uncertainty. Most depositors (except for married couples) do not open a joint account for the purpose of lifetime gifting, so the joint tenancy presumption of equal ownership is contrary to majoritarian preferences. The net contribution rule, conversely, presumes no lifetime gifting between unmarried joint accountholders, but it requires parties to preserve evidence of their net contribution, an unrealistic expectation when joint accounts remain in use for years or decades. Moreover, both presumptions can be overcome by evidence of contrary intent. As a result, joint accounts have generated a hotbed of litigation in three troublesome contexts: (1) disputes among joint accountholders when parties withdraw more than their net contribution; (2) garnishment proceedings by creditors seeking to attach joint-account funds to satisfy nonjoint debts; and (3) criminal prosecution of embezzlement and larceny from joint accounts. This Article makes three novel claims: first, in light of widespread acceptance of payable-on-death accounts, joint accounts no longer serve any useful function outside marriage; second, that joint account ownership disputes are frequent and expensive to litigate; and third, that most depositors who open joint accounts do not understand the attendant risks. It then reports findings from an original empirical field test in which funds supplied by the authors were used to open a series of joint accounts to document onboarding procedures currently used by banks for new accounts. That study revealed that bank clerks provide little to no information about lifetime ownership rights during the onboarding process, that written account agreements (provided only after the initial deposit) are generally silent regarding the rights of joint depositors as against each other, and that some banks fail to provide any written disclosures at all. The Article concludes with a menu of reform options designed to deter depositors from using joint bank accounts except within marriage.
The title of this Article-The Second Patent Bargain-references a maxim that many students are taught in introductory intellectual property and patent law classes. Issuance of a patent constitutes a "bargain with the public": In exchange for time-limited exclusive rights in an invention, an inventor agrees to disclose the invention and teach the public how to make and use it.
Public faith in the U.S. Supreme Court is plummeting and one of the major reasons has been the stumbling way that individual Justices in recent years have handled requests that, because of the appearance of bias, they should recuse themselves from participating in a series of high-profile cases before the Court. The Court's November 2023 inaugural publication of a written substantive code of ethics on when recusal is warranted is plainly an important, though limited, step in the right direction. What is still missing, however, is a procedure for applying those substantive guidelines in individual matters to provide the public with at least some bare assurance that the guidelines are not mere lip service. Substantive criteria absent procedural regularity for their administration is an illusory promise.
Syringe service programs ("SSPs") and drug-checking equipment such as fentanyl test strips are powerful tools to respond to the opioid epidemic. SSPs distribute sterile needles and other harm reduction supplies to decrease the spread of diseases. They also offer linkages to treatment facilities. Drug-checking equipment allows people to know whether a substance is adulterated with potent substances, such as fentanyl. Under Iowa's drug paraphernalia law, Iowa Code section 124.414, both SSPs and drug-checking equipment are prohibited. This Note argues that Iowa should amend its drug paraphernalia law to expressly allow SSPs and drug-checking equipment. This Note also argues that Iowa should fund these harm reduction resources and proactively lower barriers to accessing them.
Increasingly, pregnancy loss, especially stillbirth, is ending with arrest. Anticriminalization efforts are often focused on repealing the "fetal personhood" laws that encouraged or enabled the arrests. This Article argues, however, that repealing the laws is, at best, an incomplete solution, doing little to address the inclinations underlying criminalization. Anticriminalization efforts must instead be more holistic. First, a focus is needed on rewriting the dominant cultural scripts that lead to suspicion and blame after stillbirth-scripts that stillbirth is exceedingly rare (it's not, it's surprisingly common), and that good mothers grieve appropriately (again no, the script ignores the influence of trauma). Second, anticriminalization efforts must include a push to standardize medical care for stillbirth, leaving less room for bias-influenced variable care. Both awareness of the realities of pregnancy loss and standardized medical care can help alleviate health care providers' inclination to call the police. Finally, repealing fetal personhood laws is not only an incomplete solution, but also harmful. Repealing these laws devalues the lived experience of those whose unborn children are killed by tortious or criminal actors, a perspective that is often lost within the push to protect abortion rights. Instead of repeal, the legal inapplicability to pregnant people must be affirmed, and private causes of action can be created to empower those whose pregnancy loss ends in criminalization.
Iowa's prison system desperately needs intervention. The population of older adults in Iowa's prisons is growing at a rapid rate and threatens to overwhelm the system unless there is a solution. These individuals are contributing to prison overcrowding: The state prisons are over capacity by twenty percent on average with no end in sight. In the next few short years, it's projected that Iowa will reach ten thousand incarcerated individuals- the highest prison population the State has ever seen. Unless action is taken to release these older incarcerated individuals, already poor prison conditions will continue to worsen. The costs to the State to treat those older inmates who require specialty health care services, like hospice, are on the rise, too. This Note argues that Iowa needs compassionate release. This commonplace program that exists in every state except Iowa holds potential to remedy Iowa's overcrowding issue and rising carceral health care costs, while also promoting humanitarian ideals throughout the State.
The text of the U.S. Constitution is a result of a political compromise that granted Congress the authority to define the jurisdiction of all inferior federal courts and the appellate jurisdiction of the Supreme Court. Although important scholarship has explored the parameters under which Congress may exercise this authority, few studies have examined congressional use of federal jurisdiction-stripping provisions as part of a larger statutory framework designed to control the administrative state. This Article provides a theoretical and empirical account of the circumstances that motivate Congress to restrict the jurisdiction of federal courts to review administrative action. Notably, Congress engages in jurisdiction stripping in this context to accommodate uncertainty regarding how legislative delegation to the executive branch will result in real-world outcomes. Using empirical data on the jurisdiction-stripping provisions included in all significant legislation enacted after the passage of the Administrative Procedure Act through 2016, this Article demonstrates that Congress constructs judicial review based on three things: political influence, political uncertainty, and ideology. Specifically, Congress is more likely to strip federal courts of their ability to review the final administrative actions of the same agencies that are protected by statute from political review. These findings have profound implications for those who consider the constitutional context in which the administrative state operates.
Manufacturers that promote unapproved "off-label" uses of their drugs and devices can cause harm to patients by encouraging providers to prescribe these products unsafely. Examples of this phenomenon are increasingly in the news, as patients injured by off-label uses of drugs like Botox sue manufacturers that promote them. Yet these claims often fail because the current legal framework is ill-equipped to deal with this problem. In some cases, for example, the First Amendment stymies lawsuits by protecting manufacturers' promotional speech. In others, the doctrine of preemption blocks claims because federal law regulating drugs or devices conflicts with state law that imposes liability on manufacturers. The result is problematic: Manufacturers that cause injuries to patients by promoting off-label uses may be immune from liability. This Article proposes a solution: a new theory of liability-off-label inducement- that makes a manufacturer liable when its promotion induces a provider to negligently prescribe, administer, or use its drug or device off-label. In other words, manufacturers actively encouraging off-label uses that constitute and result in negligent medical care should be liable for the injuries they cause. While tort law supplies the framework for the theory, intellectual property law provides additional support for why it should apply to manufacturers that promote unsafe off-label uses of drugs and devices. Courts have adapted inducement in intellectual property law to address new social problems, such as widespread infringement enabled by file-sharing software. To respond to the harms posed by off-label promotion, courts should do the same with tort law. Manufacturers actively encouraging off-label uses that constitute and result in negligent medical care should be liable for many of the same policy reasons distributors of software are liable for encouraging consumers to infringe intellectual property using their products. After describing the theory, it demonstrates how three different formulations of it could apply to a recent case. The Article then explains how off-label inducement overcomes constitutional and doctrinal obstacles that frustrate traditional attempts to hold manufacturers responsible for harms they cause through off-label promotion. Using this theory to hold manufacturers responsible for the harm they cause by promoting unsafe off-label uses can help to reduce injuries, improve care, and compensate injured patients.
This Note discusses Iowa Code sections 717A.3B and 727.8A, which limit false statements made to obtain videos of, employment at, and access to animal agriculture facilities. These laws, often called "ag-gag" laws, provide civil and criminal penalties for obtaining pictures, videos, and other media inside of animal agriculture facilities and have caused a federal circuit split when assessing their constitutionality under the First Amendment. The Fourth, Ninth, and Tenth Circuits have held similar ag-gag laws violate the First Amendment, but the Eighth Circuit recently held that Iowa's provisions are constitutional in two 2024 cases titled Animal Legal Defense Fund v. Reynolds. This Note will provide a background on the animal rights movement, starting with Upton Sinclair's The Jungle. Although the movement began with public health concerns because of poor conditions at animal agriculture facilities in the early twentieth century, the movement has grown into concerns over the ethical treatment of animals. Undercover tactics used by prominent animal rights groups, like People for the Ethical Treatment of Animals and the Animal Legal Defense Fund, have led to several states adopting ag-gag laws, with a wave in the 1990s and another wave within the last decade. This Note then discusses how the Eighth Circuit differed from other circuits in their analysis of Iowa's laws and provides several solutions and potential workarounds for animal rights groups and attorneys representing them, both in Iowa and across the country. For advocates of animal rights groups, ensuring an adequate pleading of the facts regarding the group's activities is essential. The circuit split and question of constitutionality will likely only be resolved through a Supreme Court decision on these laws. Although a decision is unlikely to happen in the near future, animal rights groups should focus on working with employees of animal agriculture facilities to protect against abuse as well as ensure proper measures are taken for the health and safety of consumers.
The Fair Credit Reporting Actprovidesremediesforindividuals who have been injured by a credit reporting agency's negligence. These negligence claims generally require showing that an agency has not followed reasonable procedures to ensure the maximum possible accuracy of the information they receive and distribute. However, many plaintiffs do not have access to the kinds of evidence necessary to bring such a claim and withstand summary judgment. Some courts have theorized the common law doctrine res ipsa loquitur-"the thing speaks for itself"-is an adequate remedy for this issue, allowing a jury to infer negligence based on circumstantial evidence. This Note argues that courts should recognize this doctrine in the Fair Credit Reporting Act context to sufficiently serve Congress's intent to protect consumers. Absent such recognition, Congress should amend the Fair Credit Reporting Act to explicitly permit jury inferences of negligence.
The twenty-first century is set to see a departure from traditional enforcement of U.S. immigration policy. In recent years, states have forced courts to more clearly define the constitutional bounds of federalism. But since the Supreme Court decided Arizona v. United States in 2012, several states have pushed the principle that immigration law falls squarely under the powers of the federal government by sending their National Guard to the southern border. In doing so, the border becomes a hodgepodge of militarized units without the specific skill set to facilitate border crossings. Migrants, both legal and illegal, also become stigmatized in their communities. This Note analyzes how future proceedings in federal courts will be critical to regaining the pride and strength from being "a nation of immigrants."Additionally, this Note will argue how careful legislative planning may prevent states from exploiting loopholes that allow them to take federal policy matters into their own hands.
Iowa's newly adopted constitutional right to bear arms was expressly aimed at firearms. The language, however, reaches all arms, including cold weapons like knives. With several cold weapons statutes extant at the time of amendment, their tradition is implicated in the right. At least three competing theories vie for how to apply strict scrutiny to defend that right. This Note argues that state history and tradition should inform the scope of the right, with a full-blooded strict scrutiny guarding the right's extent. Congruent with Iowa's traditions, that may now mean some statutes are unconstitutional.
In this Article, we examine whether regulation is needed to protect investors in private equity. We do this by analyzing the performance of de-SPAC transactions that solicited private investment. These private investments in public equity are known as PIPEs. Because PIPE returns are publicly available, we are empirically able to determine whether the limited PIPE investors are getting a fair deal in these investments. We find that de-SPAC investors lose about forty-five percent of their investment within two years of the de-SPAC transactions. Furthermore, we find that almost all these losses are limited to those cases when the SPAC sponsors resort to PIPE financing, losing about fifty-five percent of their value abnormally. Hence, our evidence suggests that limited private-fund investors suffer substantial and systematic losses when they make PIPE investments in de-SPAC transactions. Our evidence at least partially justifies the SEC's new rules regarding the regulation of the private funds industry. Moreover, the need to address this matter has become more urgent in light of the August 7, 2025, executive order further opening pension funds' access to private equity markets, thus also exposing the retirement investments of retail investors to these risks.
