Publication Type: Response

November 30th, 2023 | Online Edition

Substance In and Out of Procedure

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 […]

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October 04th, 2023 | Online Edition

Distorting the Purposes of Multidistrict Litigation: Reflections on Noll and Zimmerman

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. […]

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April 25th, 2023 | Online Edition

The Internet and the Dormant Commerce Clause: A Reply to Goldsmith and Volokh

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 […]

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March 09th, 2023 | Online Edition

The Real Problem with Plea Bargaining

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 […]

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November 29th, 2022 | Online Edition

Habeas Myths, Past and Present

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 […]

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November 29th, 2022 | Online Edition

First in Time; First is Right: Comments on Levitin’s Poison Pill

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 […]

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November 09th, 2022 | Online Edition

Mission Creep in Newborn Screening and DNA Forensics

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 […]

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July 31st, 2022 | Online Edition

Building Better Compliance

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; […]

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April 26th, 2022 | Online Edition

Balancing: A Response to Professor Jonathan Macey, Fair Credit Markets: Using Household Balance Sheets to Promote Consumer Welfare

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 […]

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March 24th, 2022 | Online Edition

Personalized Class Actions

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 […]

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December 02nd, 2021 | Online Edition

Criminal Immunity and Schrödinger’s President: A Response to Prosecuting and Punishing Our Presidents

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 […]

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November 30th, 2021 | Online Edition

Storming Zuckerberg’s Castle

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 […]

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May 06th, 2021 | Online Edition

A Radical Restructuring? A Response to Bell and Parchomovsky, Restructuring Copyright Infringement, 98 Texas. L. Rev. 679 (2020)

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 […]

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March 31st, 2021 | Online Edition

Questions for “The Questionable Objectivity of Fourth Amendment Law”

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 […]

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November 23rd, 2020 | Online Edition

A Negotiation Class: A New, Workable, and (Probably) Lawful Idea

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 […]

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April 08th, 2020 | Online Edition

Digital Internment

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 […]

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March 29th, 2020 | Online Edition

Perfecting Issue Preservation

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 […]

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July 18th, 2019 | Online Edition

Beyond Cross-Examination: A Response to Cheng and Nunn

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 […]

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June 03rd, 2019 | Online Edition

The Foreign Founding: Rights, Fixity, and the Original Constitution

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 […]

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May 03rd, 2019 | Online Edition

The Privilege Against Cellphone Incrimination

  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

What Am I Really Saying When I Open My Smartphone? A Response to Orin S. Kerr

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 […]

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April 02nd, 2019 | Online Edition

FEMA for Finance

“[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 […]

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March 12th, 2019 | Online Edition

Steering White-Collar Enforcement

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 […]

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December 23rd, 2018 | Online Edition

Torturing Without a Parachute

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 […]

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October 17th, 2018 | Online Edition

Having It Both Ways

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 […]

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May 18th, 2018 | Online Edition

A Long-Standing Debate

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. […]

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May 18th, 2018 | Online Edition

Feminism and the Tournament

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 […]

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February 21st, 2018 | Online Edition

The Culture of CEO Pay

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 […]

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February 20th, 2018 | Online Edition

Prostitution/Human Trafficking Courts

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 […]

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January 13th, 2018 | Online Edition

Fetal Rights in the Trump Era

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 […]

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January 13th, 2018 | Online Edition

Potential Life In The Doctrine

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 […]

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January 13th, 2018 | Online Edition

Abortion in a Post-Truth Moment

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] […]

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January 25th, 2017 | Online Edition

The Story of Land

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

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