NULR Online

 

Follow

Submissions from 2016

PDF

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...


Continue reading »

PDF

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.


Continue reading »

PDF

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...


Continue reading »

PDF

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...


Continue reading »

PDF

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.


Continue reading »

PDF

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...


Continue reading »

PDF

Test PDF, Test McTest
(May 9, 2016)

Introduction:

Test


Continue reading »

Submissions from 2015

PDF

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...


Continue reading »

PDF

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...


Continue reading »

PDF

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

PDF

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...


Continue reading »

PDF

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

PDF

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

PDF

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.


Continue reading »

PDF

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

PDF

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...


Continue reading »

PDF

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

PDF

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

PDF

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...


Continue reading »

PDF

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...


Continue reading »

PDF

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....


Continue reading »

Submissions from 2014

PDF

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

PDF

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

PDF

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

PDF

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

PDF

Patent Imperialism, Bernard Chao
(October 6, 2014)

PDF

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

PDF

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

PDF

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

PDF

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

PDF

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

PDF

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)

PDF

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

PDF

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

PDF

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

PDF

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

PDF

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

PDF

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

PDF

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

Submissions from 2013

PDF

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

PDF

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

PDF

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

PDF

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

PDF

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

PDF

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

PDF

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

PDF

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

PDF

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

PDF

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

PDF

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

PDF

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

PDF

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

PDF

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

Submissions from 2012

PDF

Moderating Mayo, Bernard Chao
(July 29, 2012)

PDF

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

PDF

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

PDF

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

PDF

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)

PDF

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

PDF

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

PDF

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

PDF

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

PDF

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

PDF

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

PDF

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

PDF

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

PDF

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

PDF

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

Submissions from 2011

PDF

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.


Continue reading »

PDF

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

PDF

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

PDF

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

PDF

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)

PDF

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

PDF

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

PDF

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.


Continue reading »

PDF

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...


Continue reading »

PDF

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

PDF

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

PDF

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

PDF

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

PDF

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.


Continue reading »

PDF

Unconscionability Wars, David Horton
(August 22, 2011)

PDF

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

PDF

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

PDF

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)

PDF

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...


Continue reading »

PDF

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

PDF

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...


Continue reading »

PDF

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...


Continue reading »

PDF

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)

PDF

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...


Continue reading »

PDF

The Demise of “Drive-by Jurisdictional Rulings”, Howard M. Wasserman
(January 14, 2011)

Introduction:

In an October 2009 Term marked by several significant constitutional rulings, the Supreme Court quietly continued an important multi-term effort towards defining which legal rules properly should be called "jurisdictional." In each of four cases that considered the issue, the Court unanimously rejected a jurisdictional characterization of the challenged legal rule. These cases continue an almost uninterrupted retreat from the...


Continue reading »

Submissions from 2010

PDF

Risky Business: The Credit Crisis and Failure (Part I), Olufunmilayo B. Arewa
(May 31, 2010)

Introduction:

The credit crisis represents a watershed event for global financial markets and has been linked to significant declines in real economy performance on a level of magnitude not experienced since World War II. Recognition of the crisis in 2008 has been followed in 2009 and 2010 by a plethora of competing proposals in response to the credit crisis. The result...


Continue reading »

PDF

Risky Business: The Credit Crisis and Failure (Part II), Olufunmilayo B. Arewa
(June 6, 2010)

Introduction:

I. Regulatory Failures and Regulatory Reform

The credit crisis underscores the need for reform of regulatory and industry approaches to risk. Reframing risk should entail greater limitations on leverage and more comprehensive internal company risk management, with both external regulatory monitoring and more robust internal efforts. As a number of post-credit crisis compensation proposals have recommended, companies should also be...


Continue reading »

PDF

Risky Business: The Credit Crisis and Failure (Part III), Olufunmilayo B. Arewa
(June 13, 2010)

Introduction:

I. Consumers, Industry, and Regulatory Costs

Collection and effective analysis of financial market data may help prevent future crises. The high human costs of market crises, which may significantly affect those least well positioned to bear such costs, make prevention of future crises a high priority. This is particularly true in light of the pervasive financial market networks that characterize...


Continue reading »

PDF

Salazar v. Buono: Sacred Symbolism and the Secular State, Ian Bartrum
(September 2, 2010)

Introduction:

After oral argument, Salazar v. Buono looked like it might be a dud. As Adam Liptak observed in the New York Times, the Justices spent most of their energy pressing then-Solicitor General Elena Kagan and her opponent, Peter Eliasberg of the ACLU, on the case’s tangled procedural history, and “only Justice Antonin Scalia appeared inclined to reach the Establishment Clause...


Continue reading »

PDF

Dying for Privacy: Pitting Public Access Against Familial Interests In the Era of the Internet, Clay Calvert
(August 16, 2010)

Introduction:

I just killed my two kids. . . . I drowned them. . . . They are 2 and 4. . . . I just shot myself. . . . with a gun. . . . Please hurry.”

That was the dying declaration of 21-year-old Julia Murray on February 16, 2010, preserved for all of posterity on a 911 emergency...


Continue reading »

PDF

The Right to Exclude in the Shadow of the Cathedral: A Response to Parchomovsky and Stein, Eric R. Claeys
(January 31, 2010)

Introduction:

Reconceptualizing Trespass, by Professors Gideon Parchomovsky and Alex Stein, falls in the genre of law and economics scholarship inspired by Guido Calabresi and A. Douglas Melamed’s classic article, One View of the Cathedral (“the Cathedral”). Reconceptualizing Trespass argues that, in property torts, scholarship under the Cathedral has focused too much on damage awards with the features of Cathedral liability rules,...


Continue reading »

PDF

Mending Holes in the Rule of (Administrative) Law, Evan J. Criddle
(March 13, 2010)

Introduction:

The past decade has witnessed a surge of interest in Carl Schmitt’s controversial assertion that the rule of law inevitably bends under the demands of state necessity during national emergencies. According to Schmitt, legal norms cannot constrain sovereign discretion during emergencies because “the precise details of an emergency cannot be anticipated” in advance. The sovereign must therefore possess unfettered discretion...


Continue reading »