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Submissions from 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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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...


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Submissions from 2010

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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...


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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...


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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...


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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...


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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...


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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,...


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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...


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An Empirical Study of the Role of the Written Description Requirement in Patent Examination, Dennis Crouch
(May 16, 2010)

Introduction:

An en banc Federal Circuit recently confirmed that § 112 of the Patent Act, as properly interpreted, includes a written description requirement that is separate and distinct from the enablement requirement. The written description and enablement doctrines both encourage applicants to fully disclose their inventions, but the doctrines respectively focus on proof that the patentee (1) has possession of the...


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Procreation, Harm, and the Constitution, Carter Dillard
(July 22, 2010)

Introduction:

This Essay provides relatively novel answers to two related questions: First, are there moral reasons to limit the sorts of existences it is permissible to bring people into, such that one would be morally prohibited from procreating in certain circumstances? Second, can the state justify a legal prohibition on procreation in those circumstances using that moral reasoning, so that the...


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Salazar v. Buono: The Cross Between Endorsement and History, Mary Jean Dolan
(September 14, 2010)

Introduction:

The striking image of a white cross on stark rock, silhouetted against the desert sky, now symbolizes not only Christianity and, arguably, World War I military sacrifice, but also the equally dramatic, prolonged saga of the Salazar v. Buono litigation. The photos invoke the most recent Supreme Court battle in the legal and cultural war to define religion’s role in...


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The Intersection of Constitutional Law and Civil Procedure: Review of Wholesale Justice—Constitutional Democracy and the Problem of the Class Action Lawsuit, Douglas G. Smith
(March 31, 2010)

Introduction:

Much ink has been spilled over the class action device. Commentators have thoroughly analyzed both the plain language and intent behind the federal rules authorizing the aggregation of claims in a single lawsuit as well as the policy implications of the class action in both theory and practice. Seldom does a work break new ground in a field that has...


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The Intersection of Constitutional Law and Civil Procedure: Review of Wholesale Justice—Constitutional Democracy and the Problem of the Class Action Lawsuit (Part II), Douglas G. Smith
(April 5, 2010)

Introduction:

In the first portion of this Essay, I reviewed Professor Martin Redish’s theory that the application of Federal Rule of Civil Procedure 23 in modern class action practice is unconstitutional. Professor Redish argues that modern class action procedures violate absent class members’ due process rights by sweeping large numbers of individual plaintiffs into litigation without their explicit consent. I then...


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The Effect of Legal Professionalization on Moral Reasoning: A Reply to Professor Vischer and Professor Wendel, Michael Hatfield
(March 8, 2010)

Introduction:

I am grateful to Professor Vischer and Professor Wendel for their responses to my essay, Professionalizing Moral Deference; I learned a great deal from each piece. I also appreciate their patience in enduring my finalization of the essay and am indebted to them both for their personal indulgence and intellectual stimulation.

The aim of my earlier essay was to open...


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The Riddle Underlying Refusal-to-Deal Theory, Michael Jacobs and Alan Devlin
(June 20, 2010)

Introduction:

May a dominant firm refuse to share its intellectual property (IP) with its rivals? This question lies at the heart of a highly divisive, international debate concerning the proper application of the antitrust laws. In this short Essay, we consider a profound, yet previously unaddressed, incongruity underlying the controversy. Specifically, why is it that monopolists refuse to share their IP,...


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Heterosexuality and Military Service, Zachary A. Kramer
(April 11, 2010)

Introduction:

The Kentucky National Guard’s 940th Military Police Company is based in Walton, Kentucky, just south of the Kentucky-Ohio border. In November 2004, in anticipation of its deployment to Iraq, the 940th was mobilized and stationed at Fort Dix, New Jersey. Love was in the air at Fort Dix that fall. While the 940th was preparing for its year of service...


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Rethinking the Order of Battle in Constitutional Torts: A Reply to John Jeffries, Nancy Leong
(November 22, 2010)

Introduction:

The Supreme Court’s decision in Pearson v. Callahan ended an eight-year experiment in the adjudication of qualified immunity claims. That experiment began with Saucier v. Katz, in which the Court held that lower courts mustdecide whether a government officer violated a plaintiff’s constitutional rights before addressing the question of whether the government officer was entitled to immunity. The Court’s rationale...


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Salazar v. Buono and the Future of the Establishment Clause, Christopher C. Lund
(September 19, 2010)

Introduction:

Commentators often complain that Establishment Clause jurisprudence is incoherent and unprincipled. That accusation usually seems overwrought—perhaps we should not expect so much consistency from a Court that decides only the cases that come before it, holds multiple values, operates with continually changing personnel, and gives significant but unquantifiable weight to precedent. Yet of the areas of Establishment Clause litigation, this...


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Accelerating AI, John O. McGinnis
(April 19, 2010)

Introduction:

Recently, Artificial Intelligence (AI) has become a subject of major media interest. For instance, last May the New York Times devoted an article to the prospect of the time at which AI equals and then surpasses human intelligence. The article speculated on the dangers that such an event and its “strong AI” might bring. Then in July, the Times discussed...


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Crossing Over: Why Attorneys (and Judges) Should Not be Able to Cross-Examine Witnesses Regarding Their Immigration Statuses for Impeachment Purposes, Colin Miller
(February 28, 2010)

Introduction:

You are sitting in an empty bar (in a town you’ve never before visited), drinking a Bacardi with a soft-spoken acquaintance you barely know. After an hour, a third individual walks into the tavern and sits by himself, and you ask your acquaintance who the new man is. “Be careful of that guy,” you are told. “He is a man...


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Symposium: The Future of Law and Development, Part V, John Ohnesorge and Veronica L. Taylor
(January 24, 2010)

Introduction:

There are enough questions on the table to get us going, so I’ll focus on responding to some of them. First, to an issue raised by Salil Mehra and Tom Ginsburg, I generally follow the approach taken by Trubek and Santos in The New Law and Economic Development. Their approach defines the field (“doctrine”) of Law and Development to encompass...


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McDonald v. Chicago: Which Standard of Scrutiny Should Apply to Gun-Control Laws?, Lawrence Rosenthal and Joyce Lee Malcolm
(October 27, 2010)

Introduction:

In this debate, Professors Rosenthal and Malcolm debate the standard of scrutiny that the Supreme Court should apply to restrictions on the Second Amendment in the wake of its recent decision, McDonald v. City of Chicago. Professor Rosenthal begins Part I by noting the importance of gun-control laws to police; he considers a lower standard of scrutiny necessary to allow...


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Pleasant Grove City v. Summum: Monuments, Messages, and the Next Establishment Clause, Lisa Shaw Roy
(February 14, 2010)

Introduction:

The facts of Pleasant Grove City v. Summum are well known by now: Summum, a small religious group, argued that Pleasant Grove City violated the Free Speech Clause of the First Amendment when it refused to display Summum’s monument in the city’s Pioneer Park, which already contained fifteen other monuments, including a Ten Commandments display. Summum’s unlikely claim won in...


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Salazar v. Buono: The Perils of Piecemeal Adjudication, Lisa Shaw Roy
(September 30, 2010)

Introduction:

The recent U.S. Supreme Court decision in Salazar v. Buono, a case involving a Latin cross placed on federal land in the Mojave Desert by the Veterans of Foreign Wars, approaches what many would assume to be the central issue in the case from an oblique. Does the Mojave Desert cross, sitting atop Sunrise Peak in a federal park preserve,...


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A Personal Constitution, Michael Serota
(December 7, 2010)

Introduction:

Today’s law school graduates face two disturbing trends in the professional world. Each is well known, but neither is openly discussed in the law school setting. First, lawyers suffer from chronic professional dissatisfaction. Approximately one out of every four lawyers is dissatisfied with her job. Second, this dissatisfaction exacts an extraordinarily high price on lawyers, the legal profession, and society...


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Symposium: The Future of Law and Development, Part IV, D. Daniel Sokol and Daniel Kaufmann
(January 10, 2010)

Introduction:

This Symposium has been a wonderful forum for identifying a number of challenges that Law and Development will face going forward. Like many of the contributors, I have thought about these issues as both an academic and as a practitioner/government adviser. I have concluded that the Law and Development movement suffers from both an inability to get good results (if...


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Why More Antitrust Immunity for the Media Is a Bad Idea, Maurice E. Stucke and Allen P. Grunes
(November 14, 2010)

Introduction:

The U.S. newspaper industry specifically and traditional media industries generally are in transition. In response to declining audiences and advertising revenue, many traditional media firms have laid off journalists and cut back on news. With their financial difficulties, some traditional media firms have called for greater leniency under the federal antitrust laws. Newspaper owners and journalists have called for greater...


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Evolutionary Due Process, Louis J. Virelli III
(January 17, 2010)

Introduction:

The issue of evolution instruction in American public schools is becoming increasingly complex, both legally and politically. Until recently, the controversy over whether and how to teach evolution in public school science classes has been singularly focused on the constitutional limits of government support for religion under the First Amendment’s Establishment Clause. Current measures in Louisiana and Texas, however, represent...


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Submissions from 2009

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Lessons Learned from Forest Grove School District v. T.A.: How the Supreme Court Can Refine the Approach to Private School Tuition Reimbursement Under the IDEA, Courtney Rachel Baron
(May 24, 2009)

Introduction:

On April 28, 2009, the Supreme Court heard oral argument in Forest Grove School District v. T.A., a case that addresses a deeply contested issue in special education litigation. Reviewing the Ninth Circuit’s decision in Forest Grove, the Court will decide whether the Individuals with Disabilities Education Act (IDEA) entitles parents to reimbursement for their child’s private school education if...


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Combating Midnight Regulation, Jack M. Beermann
(February 5, 2009)

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Missing the Mark: An Overlooked Statute Redefines the Debate over Statutory Interpretation, William S. Blatt
(October 11, 2009)

Introduction:

Scholars have long debated the merits of various theories for interpreting statutes. On one side, textualists argue for close adherence to text. On the other side are those who interpret statutes by reference to legislative intent.

At the center of this debate is the seminal 1891 Supreme Court case Church of the Holy Trinity v. United States. That case considered...


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Property and Speech in Summum, Joseph Blocher
(August 16, 2009)

Introduction:

City of Pleasant Grove v. Summum is, by its own reckoning, a case about government speech under the Free Speech Clause of the First Amendment. Even so, most commentary has justifiably focused on the decision’s implications for another part of the First Amendment: the Establishment Clause. This brief Article addresses yet another feature of Summum—what itdraws from, and says about,...


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Keeping the Label Out of the Case, Pearson Bownas and Mark Herrmann
(April 20, 2009)

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Eight Is Enough, Naomi R. Cahn and Jennifer R. Collins
(May 10, 2009)

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Who Decides What Number of Children is "Right"?, June Carbone
(September 6, 2009)

Introduction:

I agree with Professors Cahn and Collins that “eight is enough.” I am perhaps more skeptical than they are about assisting Nadya Suleman, a mother who already has six children, to have more. I wonder whose funds financed fertility treatments for a single, unemployed mom on disability benefits, and, perhaps even more critically, who will fund the children’s ongoing care....


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Remand and Appellate Review Issues Facing the Supreme Court in Carlsbad Technology, Inc. v. HIF BIO, Inc., Deborah J. Challener and John B. Howell III
(March 9, 2009)

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Interrogations and the Guiding Hand of Counsel: Montejo, Ventris, and the Sixth Amendment's Continued Vitality, Ben G. Cohen, Bidish J. Sarma, and Robert J. Smith
(April 3, 2009)

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St. George Tucker's Lecture Notes, the Second Amendment, and Originalist Methodology: A Critical Comment, Saul Cornell
(March 2, 2009)

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Symposium: The Future of Law and Development, Part III, Kevin Davis, Adam Feibelman, Brian Z. Tamanaha, and Yuka Kaneko
(November 22, 2009)

Introduction:

I would like to take up Anna Gelpern’s invitation to define the study of Law and Development broadly and to reject the presumption that the inquiry will focus narrowly on the law-related projects of bilateral aid agencies and international organizations.

I am interested in the relationship between law on the one hand and, on the other hand, development (however defined),...


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The Permanent and Presidential Transition Models of Political Party Policy Leadership, David Fontana
(February 23, 2009)

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The LDS Church, Proposition 8, and the Federal Law of Charities, Brian Galle
(February 9, 2009)

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Law Upside Down: A Critical Essay on Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., Franklin A. Gevurtz
(March 30, 2009)

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Intellectual Property Rights: The View from Competition Policy, Shubha Ghosh
(February 2, 2009)

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Symposium: The Future of Law and Development, Part I, Tom Ginsburg, Salil Mehra, Katharina Pistor, and Anna Gelpern
(October 19, 2009)

Introduction:

Welcome to the Law and Development blog symposium! We are thrilled to have a fantastic array of participants lined up and trust that the discussion will be lively. In our call for participation, we asked people to reflect on the diverse conceptions of “law and development” and to take the opportunity to think about the directions the field is headed....


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Seeing It, Knowing It, Elizabeth M. Glazer
(December 6, 2009)

Introduction:

In When Obscenity Discriminates, I argued that the First Amendment’s obscenity doctrine has generated discriminatory collateral effects against gays and lesbians, and that those collateral effects generate a need to refine the obscenity doctrine in light of the Supreme Court’s decision in Lawrence v. Texas. In his response, If Obscenity Were to Discriminate, Professor Barry McDonald agrees with my essay’s...


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Mitigating Dysfunctional Deference Through Improvements in Board Composition and Board Effectiveness, Marc Goldstein
(May 4, 2009)

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Thoughts on the Churn Law, Michael Halley
(September 27, 2009)

Introduction:

A grand alliance is forming, and new trenches are being dug on the old and hallowed battleground of the Constitution. Waving the stars and stripes of “constitutional design,” and richly equipping themselves with the weaponry of reason, scholars like Richard Fallon, Sanford Levinson, and Jack Balkin have taken the field to determine “what provisions for judicial review (if any) ought...


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Professionalizing Moral Deference, Michael Hatfield
(June 1, 2009)

Introduction:

As I write this Essay, legal memoranda about torture, once again, are headline news. This Essay considers these memoranda. However, this Essay does not address the legality of torture or the legal limits of interrogation or even if lawyers who provide bad advice on these issues should be punished. Instead, this Essay uses what has come to light about the...


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Keeping Recess Appointments in Their Place, Brian C. Kalt
(January 5, 2009)

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Keeping Recess Appointments in Their Place, Brian C. Kalt
(January 5, 2009)

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Keeping Tillman Adjournments in Their Place: A Rejoinder to Seth Barrett Tillman, Brian C. Kalt
(January 5, 2009)

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Why We Should Ignore the "Octomom", Kimberly D. Krawiec
(September 20, 2009)

Introduction:

Few familiar with the story of Nadya Suleman­­—a single, low-income, California mother of six who recently gave birth to octuplets conceived through in vitro fertilization (IVF)—do not instinctively react with outrage. Fourteen children (or even one) are a daunting number under the best of conditions, and the conditions surrounding the Suleman births are far from ideal. Yet, as the old...


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Keeping the Government's Religion Pure: Pleasant Grove City v. Summum, Christopher C. Lund
(July 26, 2009)

Introduction:

In January, the Supreme Court decided Pleasant Grove City v. Summum. Summum, a religious organization, sought the right to put up a permanent monument of its Seven Aphorisms—its version of the Ten Commandments—in a local city park. At the time, the park had about fifteen other monuments, including a traditional Ten Commandments display. But this was a Free Speech case,...


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