Blog

Publication Type: Article

November 15th, 2017 | Issue 1 Volume 96

Privatization and State Action

It’s an absurd and astonishing fact about current constitutional law that it still hasn’t answered, and can’t answer, the most basic questions about privatization. We know the ratio between American soldiers and American private military contractors in the Iraq war: one to one.[1] We know the Central Intelligence Agency (CIA) used such contractors to interrogate—and […]

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November 15th, 2017 | Issue 1 Volume 96

Beyond the Bully Pulpit

Abstract The President’s words play a unique role in American public life. No other figure speaks with the reach, range, or authority of the President. The President speaks to the entire population, about the full range of domestic and international issues we collectively confront, and on behalf of the country to the rest of the […]

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November 10th, 2017 | Online Edition

Data Extraterritoriality

 Introduction Data’s intangibility poses significant difficulties for determining where data is located. The problem is not that data is located nowhere,[1] but that it may be located anywhere, and at least parts of it may be located nearly everywhere. And access to data does not depend on physical proximity. These implications of data’s intangibility challenge […]

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May 16th, 2017 | Issue 6 Volume 95

Abortion: A Woman’s Private Choice

Chemerinsky and Goodwin, believing that Roe was “unquestionably correct in its conclusion” but that its progeny—cases that shifted the law to the undue burden test and toward upholding restrictions on abortion—were misguided, assert that abortion is best regarded under the Constitution as a private choice for each woman. Their article begins by explaining what they […]

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May 16th, 2017 | Issue 5 Volume 95

Pennoyer Was Right

Pennoyer v. Neff has a bad rap. As an original matter, Pennoyer is legally correct. Compared to current doctrine, it offers a more coherent and attractive way to think about personal jurisdiction and interstate relations generally. To wit: The Constitution imposes no direct limits on personal jurisdiction. Jurisdiction isn’t a matter of federal law, but […]

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April 13th, 2017 | Issue 5 Volume 95

Trauma and the Welfare State: A Genealogy of Prostitution Courts in New York City

At least since the early twentieth century, informal specialized prostitution courts have tried to double as social welfare agencies. For this reason, prostitution courts illustrate in particularly explicit ways how public welfare administration and criminal court administration share similar ideas and practices and how these ideas and practices reinvent themselves over time. Cohen’s Article traces […]

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April 13th, 2017 | Issue 5 Volume 95

Liberty in Loyalty: A Republican Theory of Fiduciary Law

Conventional wisdom holds that the fiduciary duty of loyalty is a prophylactic rule that serves to deter and redress harmful opportunism. This idea can be traced back to the dawn of modern fiduciary law in England and the United States, and it has inspired generations of legal scholars to attempt to explain and justify the […]

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April 05th, 2017 | Issue 4 Volume 95

Federalism and State Democracy

Schleicher’s Article addresses the consequences of second-order elections—voting occuring in state and local elections that merely reflects voter preferences about the President and Congress with little or no variation based on the performance or promises of state officeholders and candidates—for federalism doctrine, policy making, and theory. First, it argues that virtually all of the ends […]

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March 30th, 2017 | Issue 3 Volume 95

Public-Private Cybersecurity

Eichensehr explores the line between public and private cybersecurity functions and provides a descriptive account of the public-private cybersecurity system. Her Article first highlights the relative roles of the U.S. government and private sector in four important contexts related to international cybersecurity threats: disrupting networks of infected computers used by transnational-criminal groups, remediating software vulnerabilities […]

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March 30th, 2017 | Issue 3 Volume 95

Ensuring Responsibility: Common Article 1 and State Responsibility for Non-State Actors

This Article explores the ways in which states work with non-state actors to accomplish their military and political objectives, with particular concern for states who use non-state actors as a proxy to violate international law. The authors recognize that existing international law doctrines on state responsibility for such behavior leaves an accountability gap, fails to […]

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January 12th, 2017 | Issue 2 Volume 95

Constitutional Archetypes

Law contends as an empirical matter that constitutional narratives of the state boil down to a combination of three basic archetypes—namely, a liberal archetype, a statist archetype, and a universalist archetype. The liberal archetype is closely identified with the common law tradition and views the state as a potentially oppressive concentration of authority in need […]

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January 12th, 2017 | Issue 2 Volume 95

Immigrant Protective Policies in Criminal Justice

Eagly argues that protective gaps for immigrants in local criminal justice policies have evolved against a backdrop of an incomplete set of organizing principles for advancing such policies. The justifications most often put forth by advocates, scholars, and policymakers in favor of protective criminal justice policies are community policing, immigrant integration, and budgetary constraints. Each […]

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January 12th, 2017 | Issue 2 Volume 95

The Invisible Revolution in Plea Bargaining: Managerial Judging and Judicial Participation in Negotiations

King and Wright, in the most comprehensive study of judicial participation in plea negotiations since the 1970s, reveal a stunning array of new procedures that involve judges routinely in the settlement of criminal cases. Interviewing nearly one hundred judges and attorneys in ten states, they found that what once were informal, disfavored interactions have quietly, […]

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January 12th, 2017 | Issue 2 Volume 95

The Brave New Path of Energy Federalism

For much of the past eighty years, courts have fixated on dual sovereignty as the organizing federalism paradigm under New Deal-era energy statutes. Dual sovereignty’s reign emphasized a jurisdictional “bright line,” a fixed and legalistic boundary between federal and state regulators. Rossi explores how three recent Supreme Court decisions limit dual sovereignty’s role as the […]

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December 20th, 2016 | Issue 1 Volume 95

The Surprising Resilience of the Patent System

Mark Lemley states that the patent system “seems in the midst of truly dramatic change.” Despite this, Lemley finds that “something curious has happened to the fundamental characteristics of the patent ecosystem during this period: very little.” Lemley explores this surprising result, first by reviewing the changes to the patent system in the past thirty-five […]

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December 20th, 2016 | Issue 1 Volume 95

What Are Tax Havens and Why Are They Bad?

In this book review, Conor Clarke consider’s Gabriel Zucman’s new book, The Hidden Wealth of Nations: The Scourge of Tax Havens. Clarke first summarizes and explains Zucman’s central findings for a legal audience, then situates those findings against the backdrop of two long-running debates in international taxation—what is a tax haven, and why are they […]

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May 19th, 2016 | Issue 6 Volume 94

Banker Loyalty in Mergers and Acquisitions

When investment banks advise on merger and acquisition (M&A) transactions, are they fiduciaries of their clients, gatekeepers for investors, or simply arm’s-length counterparties with no other-regarding duties?  Scholars have generally treated M&A advisors as arm’s-length counterparties, putting faith in the power of contract law and market constraints to discipline errant bank behavior.  In this Article, […]

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May 19th, 2016 | Issue 6 Volume 94

Enforcement Discretion at the SEC

The Dodd-Frank Wall Street Reform Act allowed the Securities and Exchange Commission (SEC) to bring almost any claim that it can file in federal court to its own administrative law judges (ALJs). In this Article, Professor David Zaring evaluates the SEC’s new ALJ policy both qualitatively and quantitatively, offering an in-depth perspective on how formal […]

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April 25th, 2016 | Issue 5 Volume 94

Incomplete Designs

Many legal rules are designed to address the imperfections of real-world institutions. Rules of justiciability and deference, statutes setting administrative deadlines, multinational treaties that protect foreign nationals—all are designed, at least to a degree, to minimize and correct the limitations of courts, agencies, and self-interested states at making the decisions the law requires of them. […]

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April 25th, 2016 | Issue 5 Volume 94

Owning Red: A Theory of Indian (Cultural) Appropriation

In a number of recent controversies, from sports teams’ use of Indian mascots to the federal government’s desecration of sacred sites, American Indians have lodged charges of “cultural appropriation” or the unauthorized use by members of one group of the cultural expressions and resources of another.  While these and other incidents make contemporary headlines, American […]

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April 25th, 2016 | Issue 5 Volume 94

Presumption of Innocence or Presumption of Mercy?: Weighing Two Western Modes of Justice

American criminal law has a deep commitment to the presumption of innocence.  Yet at the same time, American criminal justice is, by international standards, extraordinarily harsh.  Professor Whitman addresses this troubling state of affairs.  He contrasts the American approach with the approach of the inquisitorial tradition of continental Europe.  Inquisitorial justice, it argues, has a less […]

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March 27th, 2016 | Issue 4 Volume 94

Redundancy: When Law Repeats Itself

In this Article, Professor John M. Golden explores the puzzle of legal anti-redundancy and examines how legal doctrine can be designed to obtain important benefits from redundancy while substantially mitigating anti-redundancy concerns.  He analyzes redundancy and anti-redundancy as general legal phenomena, illustrates their interaction through detailed examples from patent law, and suggests how redundancy and anti-redundancy […]

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March 10th, 2016 | Issue 3 Volume 94

If You Can’t Beat ’Em, Join ’Em? How Sitting by Designation Affects Judicial Behavior

Judges, lawyers, and scholars have long decried the high reversal rate district courts face in patent cases. Many have suggested greater district court specialization as a solution, and Congress in 2011 enacted legislation to promote such specialization. In this Article, Professors Lemley and Miller investigate the impact of a novel measure of a judge’s experience […]

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March 10th, 2016 | Issue 3 Volume 94

Institutional Flip-Flops

Many people vigorously defend particular institutional judgments on such issues as the filibuster, recess appointments, executive, privilege, federalism, and the role of courts. Though these judgments are defended with great intensity and conviction, some of them turn out to be exceedingly fragile, in the sense that their advocates are prepared to change their positions as […]

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March 10th, 2016 | Issue 2 Volume 94

Other People’s Papers

The third party doctrine permits the government to collect consumer records without implicating the Fourth Amendment. The doctrine strains the reasoning of all possible conceptions of the Fourth Amendment and is destined for reform. So far, scholars and jurists have advanced proposals using a cramped analytical model that attempts to balance privacy and security. They […]

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March 10th, 2016 | Issue 2 Volume 94

The Arbitration Bootstrap

Arbitration clauses have become ubiquitous. Arbitration clauses require consumers and employees to waive their rights to bring litigation in court, leaving private arbitration as their only avenue to seek redress for violations of any law, including consumer protection laws, antitrust law, and anti-discrimination laws. The arbitration process is less protective of consumers and employees in […]

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March 09th, 2016 | Issue 1 Volume 94

Property as Institutions for Resources: Lessons from and for IP

The idea of property in land as the paradigm case of property exercises despotic dominion over property thinking. From the perspective of evolving political economy, however, a land-centric model of property makes very little sense. Property institutions coordinate access to resources, and so it is reasonable to expect them to differ in ways that respond […]

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March 09th, 2016 | Issue 1 Volume 94

Do Laws Have a Constitutional Shelf Life?

Times change. A statute passed today may seem obsolete tomorrow. Does the Constitution dictate when a law effectively expires? In Shelby County v. Holder, the 2013 decision that invalidated a provision of the Voting Rights Act, the Court seems to answer that question in the affirmative. Although rational and constitutional when written, the Court held […]

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