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Submissions from 2010

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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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Building Antitrust Agency Capacity in Context, Salil Mehra
(January 12, 2009)

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Quick Off the Mark? In Favor of Empowering the President-Elect, Nina A. Mendelson
(April 6, 2009)

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Summum and the Establishment Clause, Bernadette Meyler
(August 24, 2009)

Introduction:

Chief Justice Roberts: [T]he more you say that the monument is Government speech to get out of the first, free speech—the Free Speech Clause, the more it seems to me you’re walking into a trap under the Establishment Clause. If it’s Government speech, it may not present a free speech problem, but what is the Government doing speaking—supporting the Ten...


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Imperfect Oaths, the Primed President, and an Abundance of Constitutional Caution, Bruce Peabody
(June 14, 2009)

Introduction:

Presidential inaugurations frequently invite widespread civic celebration, the broad rhetoric of an incoming Chief Executive, and traditions stretching back for decades and even centuries. The inaugural ceremonies of January 20, 2009 offered all this and something more: a set of important constitutional puzzles radiating from Barack Obama’s imperfect recitation of his oath of office.

At 12:04 p.m., Mr. Obama attempted...


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Symposium: The Future of Law and Development, Part II, Mariana Prado, Susan D. Franck, and John Cioffi
(November 1, 2009)

Introduction:

My comments will be mostly connected to Tom’s third question, relating to the future, and I would like to start by responding to Salil Mehra. I generally agree that there is an excessive focus on replicable “tools” and “best practices” in Law and Development studies, but I think there are a lot of questions to be asked regarding Mehra’s suggestion...


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The Synergy of Early Offers and Medical Explanations/Apologies, Christopher J. Robinette
(May 17, 2009)

Introduction:

Medical malpractice law has been subjected to strong criticism by both medical and legal commentators. It has been challenged as inefficient, inaccurate, and even counterproductive. Although many reforms have been proposed, most tend to benefit one group—either physicians or patients—to the exclusion of the other. Professor Jeffrey O’Connell’s “early offers” proposal provides a reform of the system that is beneficial...


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A Lawyer's Worst Nightmare: The Story of a Lawyer and His Nurse Clients Who Were Both Criminally Charged Because the Nurses Resigned En Mass, Mitchell H. Rubinstein
(January 19, 2009)

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Lost in Space: Laurence Tribe's Invisible Constitution, Eric J. Segall
(March 23, 2009)

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A Team Production Approach to Corporate Law and Board Composition, Bernard S. Sharfman and Steven J. Toll
(February 16, 2009)

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Ricci v. DeStefano: End of the Line or Just Another Turn on the Disparate Impact Road?, Charles A. Sullivan
(November 29, 2009)

Introduction:

Reports of the death of Title VII’s disparate impact theory of discrimination in the wake of Ricci v. DeStefano may be exaggerated. Widely praised and widely criticized in the newspapers and the blogosphere, Ricci is the latest, but not the last, chapter in a long-running feud between Congress and the Supreme Court regarding disparate impact.

As the Supreme Court summarized...


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Privatizing and Publicizing Speech, Nelson Tebbe
(August 9, 2009)

Introduction:

When should we allow governments to deploy private-law rules in order to circumvent public-law obligations? Two cases this year call that question to mind. They ask the Supreme Court to explore interactions between property law and constitutional rules concerning free speech and antiestablishment.

On the one hand, the Court recently handed down Pleasant Grove City v. Summum, which involved a...


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Senate Termination of Presidential Recess Appointments, Seth Barrett Tillman
(January 5, 2009)

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Terminating Presidential Recess Appointments: A Reply to Professor Brian C. Kalt, Seth Barrett Tillman
(January 5, 2009)

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Professionalizing Moral Engagement (A Response to Michael Hatfield), Robert K. Vischer
(June 22, 2009)

Introduction:

In Professionalizing Moral Deference, Michael Hatfield argues that the way we form lawyers “begins with moral desensitization,” a technique that teaches future lawyers “to override [their] moral intuition.” In making his case, Hatfield offers the infamous torture memos as Exhibit A, but they may not be the best vehicle for proving his thesis. As the work of John Yoo shows,...


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The Mother's Milk of Politics is Corrupting Absolutely, Dan Walker
(March 16, 2009)

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Deference to Clients and Obedience to Law: The Ethics of the Torture Lawyers (A Response to Professor Hatfield), W. Bradley Wendel
(August 2, 2009)

Introduction:

In the early months of the Obama administration, we are learning a great deal more about the previous administration’s program of using “enhanced interrogation techniques” on alleged al-Qaeda detainees. On April 16, 2009, the new administration released to the public several memos, prepared by lawyers at the Office of Legal Counsel (“OLC”) in the administration of George W. Bush, dealing...


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Choose the Best Answer: Organizing Climate Change Negotiation in the Obama Administration, Jonathan Zasloff
(January 26, 2009)

Submissions from 2008

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Child Rape, Moral Outrage, and the Death Penalty, Susan A. Bandes
(August 7, 2008)

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Engaging Capital Emotions, Douglas A. Berman and Stephanos Bibas
(June 16, 2008)

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Continuing the Debate About Presidential Debates, Alexander J. Blenkinsopp
(September 25, 2008)

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Bargaining in the Shadow of the European Microsoft Decision: The Microsoft-Samba Protocol License, Seldon J. Childers and William H. Page
(June 9, 2008)

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Bargaining in the Shadow of the European Microsoft Decision: The Microsoft-Samba Protocol License (Part II), Seldon J. Childers and William H. Page
(June 12, 2008)

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Sad Time: Thoughts on Jurisdictionality, the Legal Imagination, and Bowles v. Russell, Perry Dane
(January 14, 2008)

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No Third Class Processes for Foreigners, Benjamin G. Davis
(September 2, 2008)

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The Influence of Ex Parte Quirin and Courts-Martial on Military Commissions, Morris D. Davis
(September 22, 2008)

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A Comment on Rosenberg's New Edition of The Hollow Hope, Richard Delgado
(October 6, 2008)

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Heller's Future in the Lower Courts, Brannon P. Denning and Glenn Harlan Reynolds
(July 17, 2008)

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Appreciating Mandatory Rules: A Reply to Critics, Scott Dodson
(February 25, 2008)

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Congressional Polarization Due to Maximizing Political Satisfaction: Why Elhauge’s Current Enactable Preferences Default Rule Fails to Avoid the Congressional Deadlock and Polarization that Stems from Expansionist Statutory Interpretation, Timothy J. Droske
(January 28, 2008)

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The Case for Field Preemption of State Laws in Drug Cases, Richard A. Epstein
(August 21, 2008)

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Antitrust Issues Raised by the Emerging Global Internet Economy, David S. Evans
(May 5, 2008)

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Antitrust Issues Raised by the Emerging Global Internet Economy (Part II), David S. Evans
(May 12, 2008)

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Balancing Mandate and Discretion in the Institutional Design of Federal Climate Change Policy, Robert L. Glicksman
(February 11, 2008)

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Sprint/United Management Company v. Mendelsohn and Case-by-Case Adjudication of "Me Too" Evidence of Discrimination, David Gregory
(July 7, 2008)

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Military Commissions and National Security Courts After Guantánamo, Amos N. Guiora
(November 3, 2008)

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The Lecture Notes of St. George Tucker: A Framing Era View of the Bill of Rights, David T. Hardy
(December 22, 2008)

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"Too Plain for Argument?" The Uncertain Congressional Power to Require Parties to Choose Presidential Nominees Through Direct and Equal Primaries, Richard L. Hasen
(April 7, 2008)

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Instead of ENDA, A Course Correction for Title VII, Jennifer S. Hendricks
(November 10, 2008)

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Rediscovering the Law's Moral Roots, Morris B. Hoffman
(August 4, 2008)

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Honor's Constitutional Moment: The Oath and Presidential Transitions, Paul Horwitz
(December 15, 2008)

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Human Rights and Globalization: Putting the Race to the Top in Perspective, Holning Lau
(June 2, 2008)

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Introducing the New and Improved Americans with Disabilities Act: Assessing the ADA Amendments Act of 2008, Alex B. Long
(November 17, 2008)

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Diversity and Race-Neutrality, Kenneth L. Marcus
(October 13, 2008)

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If Obscenity Were to Discriminate, Barry P. McDonald
(August 28, 2008)

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The Case for a Constitutional Easement Approach to Permanent Monuments in Traditional Public Forums, Paul E. McGreal
(October 27, 2008)

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Beyond Guantánamo, Obstacles and Options, Gregory S. McNeal
(August 11, 2008)

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Beyond Guantánamo, Obstacles and Options (Part II), Gregory S. McNeal
(August 14, 2008)

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Ordeal By Innocence: Why There Should Be a Wrongful Incarceration/Execution Exception to Attorney-Client Confidentiality, Colin Miller
(July 14, 2008)

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Climate Change Legislation in Context, Hari M. Osofsky
(March 31, 2008)

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The Unavailability Requirement, Aaron R. Petty
(March 3, 2008)

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Competition and Privacy in Web 2.0 and the Cloud, Randal C. Picker
(June 28, 2008)

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The Jurisdictional Time Limit for an Appeal: The Worst Kind of Deadline—Except for All Others*, E. King Poor
(January 7, 2008)

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Crying Havoc Over the Outsourcing of Soldiers and Democracy's Slipping Grip on the Dogs of War, Joshua S. Press
(September 8, 2008)

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Hot Spots in the Legislative Climate Change Proposals, Carol M. Rose
(February 4, 2008)

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Sprint/United Management Co. V. Mendelsohn: The Supreme Court Appears to Have Punted on the Admissibility of “Me Too” Evidence of Discrimination. But Did It?, Mitchell H. Rubinstein
(April 14, 2008)

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The Significance of Sprint/United Management Company v. Mendelsohn: A Reply to Professors Gregory and Secunda, Mitchell H. Rubinstein
(July 10, 2008)

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The Many Mendelsohn “Me Too” Missteps: An Alliterative Response to Professor Rubinstein, Paul Secunda
(June 23, 2008)

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Dysfunctional Deference and Board Composition: Lessons from Enron, Bernard S. Sharfman and Steven J. Toll
(October 9, 2008)

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What Riegel Portends for FDA Preemption of State Law Products Liability Claims, Catherine M. Sharkey
(July 21, 2008)