November 14th, 2024 | Online Edition
Separation-of-powers scholars and the Supreme Court are obsessed with administrative discretion these days. Essentially, discretion is “the power to choose between two or more courses of action, each of which is thought of as permissible.”[1] Agencies exercise discretion when they engage in behavior that is not specified by or falls outside the requirements of the […]
November 30th, 2023 | Online Edition
Introduction Robert Bone is a leading member of an influential generation of scholars who transformed the study of civil procedure. With dazzling fluency in economics,[1] history,[2] jurisprudence,[3] and more, Professor Bone has approached the subject with unmatched rigor and integrity. He is also uncommonly open-minded, he invariably treats colleagues of all sorts with respect, and […]
October 04th, 2023 | Online Edition
The January 2023 Texas Law symposium on multidistrict litigation (“MDLs”) brought together an amazing group of scholars, whose papers and commentary encompassed empirical inquiry on the uses of MDLs in federal complex litigation, policy analysis, and normative discussion. Together these papers constitute an important contribution to the literature on approaches to resolving large-scale mass litigation. […]
May 22nd, 2023 | Online Edition
Introduction Linda Jellum provides a powerful analysis of the status of the exhaustion process for the SEC administrative judiciary and more broadly of the entire administrative judiciary.[1] Many of her arguments are telling and on point. I disagree with a number of her technical and statutory arguments, and even more so the consequences of her […]
April 25th, 2023 | Online Edition
Introduction In State Regulation of Online Behavior: The Dormant Commerce Clause and Geolocation,[1] Jack Goldsmith and Eugene Volokh pose the following question: “When does the Dormant Commerce Clause preclude states from regulating internet activity . . . ?”[2] Their answer: [T]he constitutionality of such state regulation should generally turn on the feasibility of geolocation—the extent […]
March 09th, 2023 | Online Edition
Most criminal law professors hate plea bargaining. While the precise reasons for their dislike may differ, they are nearly united in their condemnation of the practice. In his article, Plea Bargaining’s Uncertainty Problem, Professor Jeffrey Bellin takes aim at several of the common criticisms of plea bargaining, seeking to isolate the problem or problems that […]
November 29th, 2022 | Online Edition
Introduction History is high-stakes narrative, so myths can be stubborn things. And because myths validate social practices, how they’re embraced or disputed can depend on who’s talking. Habeas corpus is a site of particularly energetic mythmaking, for its history is long and it is an instrument of great political power. In The Myth of the […]
November 29th, 2022 | Online Edition
Adam Levitin has made a career of being a first mover. He was, for example, among the first to raise concerns about crypto bankruptcies[1] and fintech “rent-a-charters;”[2] and early to consider deeply the tension inherent in the notion that bankruptcy courts, subject to an elaborate statutory scheme, could also be “courts of equity.”[3] His new […]
November 09th, 2022 | Online Edition
During the Somali Civil War, several major newspapers cited concerns about “mission creep” with respect to the military’s involvement in Operation Restore Hope. The project was a humanitarian effort to protect relief agencies’ food-distribution operations and feed starving children in Somalia.[1] One journalist warned that “[m]ission creep—the temptation commanders feel to chase success and perhaps […]
July 31st, 2022 | Online Edition
After about twenty years in the advertising business, multimillionaire Chester Bowles embarked on an extraordinary career in public service. From the 1940s through the 1960s, Bowles held a string of leadership positions in government: the administrator of the Office of Price Administration; director of the Office of Economic Stabilization; Governor of Connecticut; Ambassador to India; […]
April 26th, 2022 | Online Edition
Introduction In Fair Credit Markets: Using Household Balance Sheets to Promote Consumer Welfare,[1] Professor Jonathan Macey offers a new approach to regulating consumer loans. Invoking a “hypothetical balance sheet”[2] as the centerpiece of his proposal, Macey argues that it is possible for regulators to “distinguish between harmful, abusive lending and beneficial, welfare-enhancing lending.”[3] With the […]
March 24th, 2022 | Online Edition
Algorithms and artificial intelligence (AI) are changing our world in profound ways. They are introducing previously unthinkable products and services and affecting our daily lives in many ways. The AI revolution is taking center stage also in law, but among legal academics, the primary interest is not how to introduce robotic methods to law, especially […]
December 02nd, 2021 | Online Edition
Introduction In his article, Prosecuting and Punishing Our Presidents, Saikrishna Prakash argues that sitting presidents have no constitutional protection from being arrested, prosecuted, and incarcerated while in office.[1] He depicts the constitutional case for immunity—which he concedes is “orthodoxy” and “[t]he received wisdom”[2]—as an empty vessel, conjured by people with skewed, wishful readings of the […]
November 30th, 2021 | Online Edition
Introduction A company’s server is its castle, Richard Epstein once declared.[1] Because of this, anyone sending an email to that server needs permission to enter. Within its own logic, this seems incontrovertible, but it depends on a few logical steps worth unpacking. It begins with the premise that a man’s home is his castle. (The […]
September 29th, 2021 | Online Edition
Introduction In Pointing Guns,[1] Joseph Blocher, Sam Buell, Jacob Charles, and Darrell Miller present a disturbing challenge for criminal law and for society at large. People keep pointing guns at each other. These gun brandishings may be illegal assaults or legal acts of self-defense. It is hard ex post to determine the difference, and ex […]
May 06th, 2021 | Online Edition
Introduction In Restructuring Copyright Infringement, Abraham Bell and Gideon Parchomovsky call for a “radical reform in the way copyright law assigns liability.”[1] The authors propose to split copyright infringement into three distinct categories—inadvertent, standard, and willful—and to tailor the remedies offered to the copyright holder in each case. Under this system, the inadvertent infringer would […]
March 31st, 2021 | Online Edition
Introduction In his insightful article, The Questionable Objectivity of Fourth Amendment Law, Orin Kerr challenges the Supreme Court’s repeated assertions that its Fourth Amendment jurisprudence is driven by objective standards in order to “promote[] evenhanded, uniform enforcement of the law.”[1] Rather, in the descriptive part of the article, Professor Kerr points to a number of […]
November 23rd, 2020 | Online Edition
Introduction In their forthcoming article, The Negotiation Class: A Cooperative Approach to Class Actions Involving Large Stakeholders,[1] Professors Francis E. McGovern and William B. Rubenstein have created a new way to solve a major problem in a proceeding with a very large number of plaintiffs suing for money damages in a situation that can sensibly […]
April 08th, 2020 | Online Edition
In Korematsu, Hirabayashi, and the Second Monster,[1] Eric L. Muller explores whether Korematsu v. United States[2] is dead post-Trump v. Hawaii,[3] and whether by failing to strike down Hirabayashi v. United States,[4] the “mother”[5] of Korematsu and a “second monster”[6] lives on. This brief response Essay contends that answering these questions first demands grasping how […]
March 29th, 2020 | Online Edition
Introduction John Langbein famously observed that Americans “live under a criminal procedure for which we have no adequate theory.”[1] If any more evidence for that point is needed, Darryl Brown provides it in his article, Does It Matter Who Objects? Rethinking the Burden to Prevent Errors in Criminal Process.[2] In particular, Brown’s target is the […]
July 18th, 2019 | Online Edition
In their thoughtful and important article, Beyond the Witness: Bringing A Process Perspective to Modern Evidence Law, Ed Cheng and Alex Nunn make a convincing case that existing evidence law’s focus on witnesses is antiquated and wrongheaded.[1] As they explain, modern proof consists increasingly of evidence that involves standardized processes rather than what the authors […]
June 03rd, 2019 | Online Edition
Anyone today who wishes to understand the American Founding must first come to terms with a central fact: By our lights, it is a foreign world.[1] To properly understand how and what people thought back then requires considerable abstraction and conceptual translation. It demands a willingness to look beneath surface-level familiarity by attending to, rather […]
May 03rd, 2019 | Online Edition
The standard approach to the problem of compelled decryption of cellphones has been to treat cellphones like glorified lockboxes. The contents are assumed to be the equivalent of private papers, leaving only the passcode subject to dispute. Orin Kerr has helpfully labeled this dichotomy as the “treasure” versus the “key.”[1] Much of the debate […]
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April 04th, 2019 | Online Edition
In his article, Compelled Decryption and the Privilege Against Self-Incrimination,[1] Orin S. Kerr addresses a common question confronting courts: if a court orders a suspect or defendant to enter her password to open a smartphone or other device as part of a law-enforcement investigation, does that order violate the Fifth Amendment right against self-incrimination? The […]
April 02nd, 2019 | Online Edition
“[I]t is a question of when, not if, a large-scale attack succeeds.”[1] “The government cannot credibly commit to a no-bailout policy.”[2] Modern financial systems are inherently vulnerable. The conversion of savings into investment—a basic function of finance—involves substantial risk. Lenders often demand liquid, short-term, low-risk assets, and borrowers typically wish to finance projects that take […]
March 12th, 2019 | Online Edition
On one level, Miriam Baer’s fascinating article, Sorting Out White-Collar Crime,[2] is a paper about why and how Congress ought to statutorily distinguish lower-level federal fraud offenses. On another, it raises a broader question: how should federal criminal justice institutions acknowledge and respond to a latent feature of federal fraud enforcement, namely, the divergence between […]
December 23rd, 2018 | Online Edition
In a far ranging 2018 article in Texas Law Review,[1] Professor Fallon opines on the scope of the duty of subordinate Executive Branch officers to obey conflicting commands and policies emanating from the President and the federal courts, including the Supreme Court. The subject is not an easy one. It is a question which cannot […]
December 23rd, 2018 | Online Edition
Introduction In his Texas Law Review article Toward a Science of Torture? Professor Bloche addresses an important question. Along the way he makes many valuable points about the nature, study, and effects of torture generally and the CIA’s interrogational torture program in particular. In short, we agree on a great deal with the author. We […]
October 17th, 2018 | Online Edition
Introduction As titles go, “International Law in the Post-Human Rights Era” is a pretty catchy one.[1] I am not sure, however, that the claim, in its breadth of ambition, can be robustly sustained, or that it would not be more correct (although less catchy) to simply speak of “the limited impact of human rights on […]
May 18th, 2018 | Online Edition
Jed Rubenfeld’s Privatization and State Action: Do Campus Sexual Assault Hearings Violate Due Process?[1] will likely engender a great deal of controversy because of the topic it confronts—Title IX campus sexual assault hearings and due process. It likely won’t engender as much controversy for its attempt to bring clarity and principle to what is quite […]
May 18th, 2018 | Online Edition
I jumped at the opportunity to respond to Risk and Anxiety: A Theory of Data Breach Harms[1] by two of the leading lights of privacy law. I find I am hard-pressed to name two scholars who have had a greater influence on the arc of contemporary privacy law than Daniel Solove and Danielle Keats Citron. […]
May 18th, 2018 | Online Edition
Introduction Naomi Bishop, the protagonist of the 2016 film Equity, is the rare “she-wolf of Wall Street.”[1] At the beginning of the film, Bishop appears on a panel at an alumni event. She explains her career choices to the young women in the audience as follows: I like money. I do. I like numbers. I […]
May 18th, 2018 | Online Edition
As Professor Kate Shaw makes clear in her brilliant (and brilliantly timed) article on presidential speech in the courts,[1] the question is not whether a President’s own statements can and should ever be admissible against him in judicial proceedings, it’s when. Thus, whatever one thinks about judicial reliance on President Trump’s statements to prove that […]
February 21st, 2018 | Online Edition
CEO compensation is a perennial issue, and understandably so, particularly in light of how much CEOs are paid in both absolute and relative terms and given the corporate scandals that make front-page news.[1] How do we explain CEO pay? There are essentially two different narratives. Under the managerial power theory, the CEO has enormous influence […]
February 20th, 2018 | Online Edition
Introduction Amy Cohen’s genealogy examines Manhattan’s early 20th century Women’s Court, Midtown Community Court of the 1990s, and more recent Human Trafficking Intervention Courts that began operating in 2013.[1] The latter two courts are part of the modern problem-solving court movement, which seeks to address “root causes” through therapeutic means.[2] Some see this as one […]
January 13th, 2018 | Online Edition
The future of reproductive justice during the Trump era feels bleak to many of us who have been thinking, teaching, writing, lobbying, and agitating about issues related to contraception, abortion, childbirth choices, and parenting rights for years. Were the Supreme Court to reject constitutional protection for a woman’s right to terminate a pregnancy, that decision […]
January 13th, 2018 | Online Edition
In their article, Abortion: A Woman’s Private Choice,[1] Erwin Chemerinsky and Michele Goodwin seek to shore up the doctrinal basis for a woman’s constitutional right to end her pregnancy. While Chemerinsky and Goodwin are partly concerned about the status of abortion rights in the United States because of President Donald Trump’s promise prior to taking […]
January 13th, 2018 | Online Edition
Through Obamacare, the current Administration has promoted the notion of abortion as healthcare. We, however, affirm the dignity of women by protecting the sanctity of human life. Numerous studies have shown that abortion endangers the health and well-being of women, and we stand firmly against it. GOP Platform, 2016.[1] In Abortion: A Woman’s Private Choice,[2] […]
June 26th, 2017 | Online Edition
Professors Rimalt and Yefet respond to Dean Chemerinsky and Professor Goodwin’s recent article by arguing for a supplementary equality framing that defines the scope and substance of the right to abortion on the basis of equal treatment standards and measures the female right against other comparable male rights. PDF
June 04th, 2017 | Online Edition
Professor Moore responds to Professor Sachs’s article by exploring the conceptual, practical, and normative implications of Sachs’s proposal to return to general law. PDF
May 17th, 2017 | Online Edition
Prof. Stein responds to Prof. Rossi’s article about the federalism implications of three recent Supreme Court decisions. PDF
April 21st, 2017 | Online Edition
Prof. Chiang examines Prof. Lemley’s article on patent law and argues that Lemley’s conclusions are premature. PDF
February 21st, 2017 | Online Edition
Prof. Levinson responds to Prof. Law’s article on constitutional archetypes, and in so doing, Prof. Levinson proffers four—instead of Law’s three—archetypes for consideration. PDF
February 20th, 2017 | Online Edition
Prof. Brown responds to Prof. King and Prof. Wright’s article studying judicial participation in plea negotiations. PDF
January 25th, 2017 | Online Edition
Professor Mulligan responds to Professor Cohen’s recent article Property as Institutions for Resources, proffering her own argument regarding the role that property law has to play in resource-governance law. PDF
October 12th, 2016 | Online Edition
Professor Mark responds to Professor Zaring’s article on the administrative proceedings conducted by the Securities and Exchange Commission. PDF
September 26th, 2016 | Online Edition
Professor Tsosie responds to Professors Riley and Carpenter’s article exploring the complicated situation of protecting the use ofAmerican Indian names, symbols, and expressions. PDF
September 26th, 2016 | Online Edition
Professor DeMott responds to Professor Tuch’s article arguing that investment banks should be considered fiduciaries of their M&A clients. PDF
September 26th, 2016 | Online Edition
Professor Katz responds to Professor Whitman’s article exploring the dichotomy of the United States’s strong presumption of innocence and simultaneously harsh criminal justice system by international standards. PDF
September 26th, 2016 | Online Edition
Professor Hamburger responds to Professor Vermeule’s book review of Is Administrative Law Unlawful?, Professor Hamburger’s recent book. PDF
June 18th, 2016 | Online Edition
Professor Frankel responds to Professor Leslie’s recent article on how mandatory arbitration clauses have proliferated, benefiting big business without protecting consumers. PDF
April 29th, 2016 | Online Edition
Professor Garrett responds to Professor Whitman’s recent article on the contrast between American criminal law and the inquisitorial tradition of continental Europe. PDF
April 11th, 2016 | Online Edition
Professor Stein responds to Professor Golden’s article on overlaps in the legal system. PDF
March 09th, 2016 | Online Edition
Professor Tushnet responds to Professors Posner and Sunstein’s recent article on institutional flip-flops.
March 09th, 2016 | Online Edition
Professor Golden responds to Professors Lemley and Miller’s recent article on the effect sitting by designation on the Federal Circuit may have for a district judge’s subsequent reversal rate.
March 09th, 2016 | Online Edition
Professor Tsai responds to Professor Rana’s recent review of his book, America’s Forgotten Constitutions.
March 09th, 2016 | Online Edition
Professor Henderson responds to Professor Bambauer’s recent article on privacy law.
March 09th, 2016 | Online Edition
Ms. Gorod responds to Professor Larsen’s recent article on the concept of a “constitutional shelf life.”
March 09th, 2016 | Online Edition
Professor Roth responds to Professor Brophy’s recent review of her book, Gender and Race in Antebellum Popular Culture.