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Submissions from 2017

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Clarence Thomas the Questioner, RonNell Andersen Jones and Aaron L. Nielson
(January 1, 2017)

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Amoral Machines, Or: How Roboticists Can Learn to Stop Worrying and Love the Law, Bryan Casey
(July 31, 2017)

Introduction:

The media and academic dialogue surrounding high-stakes decisionmaking by robotics applications has been dominated by a focus on morality. But the tendency to do so while overlooking the role that legal incentives play in shaping the behavior of profit-maximizing firms risks marginalizing the field of robotics and rendering many of the deepest challenges facing today’s engineers utterly intractable. This Essay...


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After Flint: Environmental Justice As Equal Protection, David A. Dana and Deborah Tuerkheimer
(January 17, 2017)

Introduction:

In this essay, Professors Dana and Tuerkheimer conceptualize Flint as an archetypical case of underenforcement—that is, a denial of the equal protection of laws guaranteed by the U.S. Constitution. Viewed as such, the inadequacy of environmental regulation can be understood as a failure that extends beyond the confines of Flint; a failure that demands a far more expansive duty to protect vulnerable populations.


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Local Democracy on the Ballot, Joshua A. Douglas
(May 29, 2017)

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Excessive Lethal Force, Melissa Hamilton
(April 17, 2017)

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The Public Defender’s Pin: Untangling Free Speech Regulation in the Courtroom, Michael Kagan
(March 6, 2017)

Introduction:

In this essay, Professor Kagan asserts that recent disputes in Ohio and Nevada about whether lawyers should be allowed to wear “Black Lives Matter” pins in open court expose a fault line in First Amendment law. Lower courts have generally been unsympathetic to lawyers who display political symbols in court. But, Kagan argues, it would go too far suggest that free speech has no relevance in courtrooms. This essay argues for a way to strike a balance.


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Human Trafficking and Pornography: Using the Trafficking Victims Protection Act to Prosecute Trafficking for the Production of Internet Pornography, Allison J. Luzwick
(April 6, 2017)

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Dismantling the Unitary Electoral System? Uncooperative Federalism in State and Local Elections, Michael T. Morley
(February 18, 2017)

Introduction:

In this essay, Professor Morley explains that states generally conduct their elections in a “unitary” manner, applying many of the same rules, requirements, and procedures to races for offices at all levels of government. Morley argues that the unitary status of American elections has evolved into a convention: a principle that people expect to limit government officials’ discretion, despite not...


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Discovering Forensic Fraud, Jennifer D. Oliva and Valena E. Beety
(September 12, 2017)

Submissions from 2016

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Police Stories, Helen A. Anderson
(August 6, 2016)

Introduction:

In this essay, Anderson explores how the police narrative is told in appellate opinions, in light of changing police stories seen in the media. In recent years, video recordings of police violence have upended the traditional narrative of police heroism. The videos have led to discussions of police accountability, yet the controversies surrounding these incidents have also served to highlight...


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Protection for Families: New Standards Developing in Asylum Law, Jillian Blake
(October 22, 2016)

Introduction:

Fear of persecution based on one’s family ties has long been considered a basis for asylum in the United States. Recently, however, the scope of that protection has come under dispute and, as a result, may be expanding. In this Essay, Blake argues for a more expansive interpretation of these asylum claims, recognizing family-based persecution even when persecutors have multiple motives for targeting their victim.


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The Death Penalty and the Fifth Amendment, Joseph Blocher
(July 15, 2016)

Introduction:

In this essay, Blocher considers recent developments that have given new hope to those seeking constitutional abolition of the death penalty. Some supporters of the death penalty continue to argue, as they have since Furman v. Georgia, that the death penalty is constitutional because the Fifth Amendment explicitly contemplates it. The appeal of this argument is obvious, but Blocher argues...


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War by Legislation: The Constitutionality of Congressional Regulation of Detentions in Armed Conflicts, Christopher M. Ford
(June 25, 2016)

Introduction:

In this essay, Ford considers provisions of the 2016 National Defense Authorization Act (NDAA) which place restrictions on the disposition of detainees held in Guantánamo Bay. These provisions raise substantial separation of powers issues regarding the ability of Congress to restrict detention operations of the Executive. These restrictions, and similar restrictions found in earlier NDAAs, specifically implicate the Executive's powers...


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Lupu, Tuttle, and Singling Out Religion, Andrew Koppelman
(September 14, 2016)

Introduction:

In this essay, Koppelman reviews Secular Government, Religious People by Ira C. Lupu and Robert W. Tuttle. Lupu and Tuttle offer a timely examination of how and where religious liberty and American law intersect. Koppelman offers his take and places the book within the scholarship on religious liberty.


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What Lurks Below Beckles, Leah M. Litman and Shakeer Rahman
(November 2, 2016)

Introduction:

In this essay, Litman and Rahman argue that if the Supreme Court grants habeas relief in this month’s Beckles v. United States, then it should spell out certain details about where a Beckles claim comes from and who such a claim benefits. Those details are not essential to the main question raised in the case, but the federal habeas statute...


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Submissions from 2015

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Restoring the Fact/Law Distinction in Patent Claim Construction, J. Jonas Anderson and Peter S. Menell
(April 20, 2015)

Introduction:

Two decades ago, the Supreme Court sought to promote more effective, transparent patent litigation in Markman v. Westview Instruments by ruling that “the construction of a patent, including terms of art within its claim, is exclusively within the province of the court.” In so doing, the Court removed interpretation of patent claims from the black box of jury deliberations by...


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The Curious Case of Cell Phone Location Data: Fourth Amendment Doctrine Mash-Up, Monu Bedi
(October 29, 2015)

Introduction:

In the essay, Professor Bedi discusses a prominent issue in Fourth Amendment jurisprudence: whether an individual's cell phone location data is constitutionally protected. The emergence of this data and law enforcement's attempts to utilize it have raised new questions about the reach of the third-party and public disclosure doctrines, which have traditionally rendered the Fourth Amendment inapplicable to seemingly similar...


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Hidden Racial Bias: Why We Need to Talk with Jurors About Ferguson, Patrick C. Brayer
(February 23, 2015)

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The Ferguson v. JONAH Verdict and a Path Towards National Cessation of Gay-to-Straight "Conversion Therapy", Peter R. Dubrowski
(December 31, 2015)

Introduction:

In the essay, Dubrowski analyzes Ferguson v. JONAH, a landmark 2015 decision in which a New Jersey court held --- for the first time --- that homosexuality is not a disease or mental disorder as a matter of law. Based on this pretrial ruling, a civil jury unanimously found JONAH (a conversion therapy clinic) its co-directors and its chief counselor...


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The #Ferguson Effect: Opening the Pandora’s Box of Implicit Racial Bias in Jury Selection, Sarah Jane Forman
(February 23, 2015)

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SOX on Fish: A New Harm of Overcriminalization, Todd Haugh
(January 29, 2015)

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The Value of Uncertainty, Cathy Hwang and Benjamin P. Edwards
(August 17, 2015)

Introduction:

In the aftermath of the financial crisis, the federal courts have heard arguments in contract disputes involving billions of dollars worth of securitized financial products—yet it is not clear that the federal courts have subject matter jurisdiction over these cases. In this Essay, we advance possible explanations for why parties to default disputes do not raise this possible jurisdictional defect.


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Race Matters in Jury Selection, Peter A. Joy
(February 23, 2015)

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Who Are You Calling Irrational?, Aneil Kovvali
(October 5, 2015)

Introduction:

In the review, Kovvali discusses and critiques certain philosophical underpinnings of "nudges." Nudges are small interventions that change the context in which decisions are made, thus encouraging individuals to make specific choices. Using an analogy to voting paradoxes, Kovvali shows that nudges exploit a type of irrationality that results when citizens attempt to reconcile inconsistent objectives, and concludes that while...


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The Intratextual Independent “Legislature” and the Elections Clause, Michael T. Morley
(January 19, 2015)

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The Intratextual Independent “Legislature” and the Elections Clause, Michael T. Morley
(January 19, 2015)

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Prosecuting Online Threats After Elonis, Michael Pierce
(October 20, 2015)

Introduction:

In the essay, Mr. Pierce discusses what, exactly, the government must prove before it can, consistent with the First Amendment, prosecute someone who posts threatening messages on Facebook. Last Term, a divided Court wrestled with this issue in Elonis v. United States, reversing the defendant's conviction but leaving an important question unanswered: does the government need to prove that a...


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Crazy in Alabama: Judicial Process and the Last Stand Against Marriage Equality in the Land of George Wallace, Howard M. Wasserman
(July 12, 2015)

Introduction:

On June 26, 2015, the Supreme Court of the United States ruled in Obergefell v. Hodges that prohibitions on same-sex marriage violate the Fourteenth Amendment. In hindsight, the decision seems inevitable, the culmination of a precisely two-year race towards marriage equality that began with the Court’s 2013 invalidation of the federal Defense of Marriage Act on June 26, 2013. Federal...


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Legal and Psychological Considerations in Adolescents' End-of-Life Choices, Molly J. Walker Wilson
(August 31, 2015)

Introduction:

In this essay, Professor Wilson reflects on the manner in which the law treats adolescents who are faced with end-of-life decisions. She begins by surveying the legal framework underlying end-of-life choices at the state and federal levels. She then discusses two decisionmakers - adolescents and adults - and the behavioral traits and biases that animate each when end-of-life decisions arise....


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Submissions from 2014

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The Curious Case of Legislative Prayer: Town of Greece v. Galloway, Ian Bartrum
(February 20, 2014)

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Of Bitcoins, Independently Wealthy Software, and the Zero-Member LLC, Shawn Bayern
(April 10, 2014)

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Inventing Around Copyright, Dan L. Burk
(September 19, 2014)

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How Not to Apply Actavis, Michael A. Carrier
(December 8, 2014)

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Patent Imperialism, Bernard Chao
(October 6, 2014)

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“Single Point of Entry”: The Promise and Limits of the Latest Cure for Bailouts, John Crawford
(November 26, 2014)

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The CEO and the Hydraulics of Campaign Finance Deregulation, Sarah Jane C. Haan
(July 10, 2014)

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The Motivating Force of a Bonus Pool, and Other Objections, Claire A. Hill
(April 24, 2014)

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Ties that Bind? The Questionable Consent Justification for Hosanna-Tabor, Jessie Hill
(November 19, 2014)

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Party-Based Corruption and McCutcheon v. FEC, Michael S. Kang
(March 19, 2014)

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Abidor v. Napolitano: Suspicionless Cell Phone and Laptop “Strip” Searches at the Border Compromise the Fourth and First Amendments, Adam Lamparello and Charles E. MacLean
(May 9, 2014)

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Is Resistance to Foreign Law Rooted in Racism?, Sheldon Bernard Lyke
(August 13, 2014)

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Choice of Counsel and the Appearance of Equal Justice Under Law, Wesley M. Oliver
(May 16, 2014)

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Mini-DOMAs as Political Process Failures: The Case for Heightened Scrutiny of State Anti-Gay Marriage Amendments, Steve Sanders
(June 30, 2014)

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Silence Is Golden: Moments of Silence, Legislative Prayers, and the Establishment Clause, Eric Segall
(March 7, 2014)

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Populist Outrage, Reckless Empirics: A Review of Failing Law Schools, Michael Simkovic and Frank McIntyre
(February 3, 2014)

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Constitutional Purpose and the Anti-corruption Principle, Zephyr Teachout
(February 14, 2014)

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Forced Decryption as Equilibrium—Why It’s Constitutional and How Riley Matters, Dan Terzian
(September 5, 2014)

Submissions from 2013

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Erie's International Effect: A Reply, Donald Earl Childress III
(June 6, 2013)

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Erie's International Effect: A Reply, Donald Earl Childress III
(June 16, 2013)

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DOMA's Ghost and Copyright Reversionary Interests, Brad A. Greenberg
(October 2, 2013)

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The Moonscape of Tax Equality: Windsor and Beyond, Anthony C. Infanti
(October 16, 2013)

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The Dog Days of Fourth Amendment Jurisprudence, Kit Kinports
(August 23, 2013)

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Why Scalia Should Have Voted to Overturn DOMA, Andrew Koppelman
(November 12, 2013)

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Catch TwentyWu The Oral Argument in Fisher v. University of Texas and the Obfuscation of Critical Mass, Sheldon Bernard Lyke
(April 7, 2013)

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Chief Justice Roberts's Individual Mandate: The Lawless Medicine of NFIB v. Sebelius, Gregory P. Magarian
(July 1, 2013)

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It's Time for an Immigration Jury, Daniel I. Morales
(July 17, 2013)

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The Conscious Curriculum: From Novice Towards Mastery in Written Legal Analysis and Advocacy, Sarah O. Schrup and Susan E. Provenzano
(September 19, 2013)

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A Visual Guide to United States v. Windsor: Doctrinal Origins of Justice Kennedy's Majority Opinion, Colin Starger
(November 3, 2013)

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The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout, Seth Barrett Tillman
(April 2, 2013)

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Dispatches from the Trenches of America's Great Gun Trust Wars, Lee-ford Tritt
(November 27, 2013)

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The Definite Article: The D.C. Circuit's Redefinition of Recess Appointments, Jeff VanDam
(July 31, 2013)

Submissions from 2012

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Moderating Mayo, Bernard Chao
(July 29, 2012)

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Originalism and the "Individual Mandate": Rounding Out the Government's Case for Constitutionality, Dan T. Coenen
(June 18, 2012)

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The Contraception Mandate, Caroline Mala Corbin
(November 27, 2012)

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Why Congress Did Not Think About the Constitution When Enacting the Affordable Care Act, Neal Devins
(March 15, 2012)

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Reviving National Muffler: Analyzing the Effect of Mayo Foundation on Judicial Deference as Applied to General Tax Authority Guidance, Matthew H. Friedman
(August 31, 2012)

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Erie's International Effect, Michael Steven Green
(December 31, 2012)

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Grutter's Denouement: Three Templates from the Roberts Court, Ellen D. Katz
(October 7, 2012)

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A Tort Statute, with Aliens and Pirates, Eugene Kontorovich
(August 13, 2012)

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The Bin Laden Exception, Erik Luna
(February 21, 2012)

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A Modest Memoir: Justice Stevens's Supreme Court Life, Laura Krugman Ray
(June 1, 2012)

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Revisiting "Special Needs" Theory Via Airport Searches, Alexander A. Reinert
(February 9, 2012)

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Affirmative Action, Justice Kennedy, and the Virtues of the Middle Ground, Allen Rostron
(July 19, 2012)

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Gifts, Offices, and Corruption, Zephyr Teachout
(July 8, 2012)

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Citizens United and the Scope of Professor Teachout's Anti-Corruption Principle, Seth Barrett Tillman
(April 20, 2012)

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Justifying Diversity in the Federal Judiciary, Carl Tobias
(April 9, 2012)

Submissions from 2011

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The Constitutional Politics of the Tea Party Movement, Richard Albert
(March 27, 2011)

Introduction:

The Tea Party movement and its constitutional vision for the United States is perhaps the hottest topic in American public law today. The rising tide of popular support for the Tea Party movement has transformed what was once cast aside as a fleeting faction into a formidable force in American politics—one that could augur significant consequences for the contours of American constitutional law in the years ahead.


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When May a President Refuse to Defend a Statute? The Obama Administration and DOMA, Carlos A, Ball
(October 28, 2011)

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The Tea Party, the Constitution, and the Repeal Amendment, Randy Barnett
(April 5, 2011)

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Religion and Race: The Ministerial Exception Reexamined, Ian Bartrum
(December 28, 2011)

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Religious Freedom, Church–State Separation, and the Ministerial Exception, Thomas C. Berg, Kimberlee Wood Colby, Carl H. Esbeck, and Richard W. Garnett
(December 22, 2011)

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Sacrificing Quantity for Quality: Better Focusing Prosecutors’ Scarce Resources, Stephanos Bibas
(November 21, 2011)

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Physician, Heal Thyself: Discretion and the Problem of Excessive Prosecutorial Caseloads, a Response to Adam Gershowitz and Laura Killinger, Josh Bowers
(November 21, 2011)

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The Crime Victim’s Expanding Role in a System of Public Prosecution: A Response to the Critics of the Crime Victims’ Rights Act, Paul G. Cassell and Steven Joffee
(January 2, 2011)

Introduction:

The American criminal justice system is often envisioned as one in which public prosecutors pursue public prosecutions on behalf of the public—leaving no room for crime victims’ involvement. However, state and federal statutes and state constitutional amendments have challenged this vision. Perhaps the best example of such a challenge comes from the Crime Victims’ Rights Act (“CVRA”), a federal statute passed by Congress in 2004 that guarantees victims a series of rights in federal criminal proceedings.


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Scribble Scrabble, the Second Amendment, and Historical Guideposts: A Short Reply to Lawrence Rosenthal and Joyce Lee Malcolm, Patrick J. Charles
(February 20, 2011)

Introduction:

In a recent article Professors Lawrence Rosenthal and Joyce Lee Malcolm provided an intriguing debate over the standard of scrutiny that should be applied to restrictions on the Second Amendment in the wake of McDonald v. City of Chicago. This Article sets forth to illuminate two aspects of that debate. The first is Professor Rosenthal’s concern on the constitutionality of...


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The Irony of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, Caroline Mala Corbin
(October 31, 2011)

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The Obama Administration’s Decisions to Enforce, but Not Defend, DOMA § 3, Robert J. Delahunty
(October 10, 2011)

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Rethinking Extraordinary Circumstances, Scott Dodson
(November 8, 2011)

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A Pro-Congress Approach to Arbitration and Unconscionability, Stephen E. Friedman
(October 3, 2011)

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Can Popular Constitutionalism Survive the Tea Party Movement?, Jared A. Goldstein
(April 14, 2011)

Introduction:

The sudden emergence and prominence of the Tea Party movement raises important questions about the role of the Constitution in popular politics. More than any political movement in recent memory, the Tea Party movement is centrally focused on the meaning of the Constitution. Tea Party supporters believe that the nation is facing a crisis because it has abandoned the Constitution, and they seek to restore the government to what they believe are its foundational principles.


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Unconscionability Wars, David Horton
(August 22, 2011)

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Act III of the Ministerial Exception, Paul Horwitz
(December 7, 2011)

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State Law Holocaust-Era Art Claims and Federal Executive Power, Jennifer Anglim Kreder
(May 24, 2011)

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Hosanna-Tabor and Supreme Court Precedent: An Analysis of the Ministerial Exception in the Context of the Supreme Court's Hands-Off Approach to Religious Doctrine, Samuel J. Levine
(November 14, 2011)

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If We Have an Imperfect Constitution, Should We Settle for Remarkably Timid Reform? Reflections Generated by the General Phenomenon of “Tea Party Constitutionalism” and Randy Barnett’s Particular Proposal for a “Repeal Amendment”, Sanford Levinson
(March 27, 2011)

Introduction:

There is, of course, no single template for “Tea Party Constitutionalism,” given that it is a large, somewhat inchoate movement that inevitably contains different, often conflicting, strains. As someone from Texas, I am tempted to focus on some of the more extreme ideas associated with various politicians wishing to take advantage of the anger projected by many Tea Partiers toward...


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How Goliath Won: The Future Implications of Dukes v. Wal-Mart, Suzette M. Malveaux
(September 3, 2011)

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So How Did We Get Into This Mess? Observations on the Legitimacy of Citizens United, Alexander Polikoff
(February 11, 2011)

Introduction:

How did the American body politic allow business corporations to threaten members of Congress by saying, credibly, “Do what we want or we’ll bury you!”?

On January 21, 2010, the Supreme Court’s 5-4 decision in Citizens United v. Federal Election Commission interpreted the U.S. Constitution’s First Amendment to permit corporations to spend unlimited amounts of money to support or oppose...


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Dodd-Frank, International Remittances, and Mobile Banking: The Federal Reserve’s Role in Enabling International Economic Development, Colin C. Richard
(March 9, 2011)

Introduction:

International remittances—"cross-border person-to-person payments of relatively low value" sent primarily by international migrants to family members in developing countries—alleviate poverty, support entrepreneurship, and foster the development of financial systems. Until recently, aside from prohibitions on financial interactions with countries such as Cuba or Burma, U.S. regulators have only indirectly addressed these monetary transfers. The Dodd-Frank Wall Street Reform and Consumer...


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Do Violent Video Games Harm Children? Comparing the Scientific Amicus Curiae “Experts” in Brown v. Entertainment Merchants Association, Deana Pollard Sacks, Brad J. Bushman, and Craig A. Anderson
(May 27, 2011)

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The Tea Party Movement and Popular Constitutionalism, Ilya Somin
(April 19, 2011)

Introduction:

The rise of the Tea Party movement followed a period during which many academic students of constitutional law focused on “popular constitutionalism”: the involvement of public opinion and popular movements in influencing constitutional interpretation. Many of these scholars argue that popular constitutional movements have a beneficial impact on constitutional law, and some even contend that popular constitutionalism should supplant judicial...


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