Archive: 2012

Judicial Backlash or Just Backlash? Evidence from a National Experiment


By: David Fontana & Donald Braman


When the Supreme Court decides a controversial issue, does it generate a distinctive public backlash? Or would a similar decision by Congress generate a similar reaction? Surprisingly, although these questions pervade debates over constitutional law, ...READ MORE

Stock Unloading and Banker Incentives


By: Robert J. Jackson, Jr.


Congress has directed federal regulators to oversee banker pay. For the first time, these regulators are now scrutinizing the incentives of risk-takers beyond the bank’s top executives. Like most public company managers, these bankers are increasingly ...READ MORE

Unions, Corporations, and Political Opt-Out Rights After Citizens United


By: Benjamin I. Sachs


Citizens United upends much of campaign finance law, but it maintains at least one feature of that legal regime: the equal treatment of corporations and unions. Prior to Citizens United, that is, corporations and unions were equally constrained in ...READ MORE


Due Process and “the Worst of the Worst”: Mental Competence in Sexually Violent Predator Civil Commitment Proceedings

By: John L. Schwab


Sexually Violent Predator (“SVP”) civil commitment statutes have been adopted by a number of states and by the federal government. The statutes provide for the indefinite post-incarceration detention of individuals whom the state determines have a strong ...READ MORE

Whose Applicable Guideline Range Is It Anyway? Examining Whether Nominal Career Offenders Can Receive Sentence Modifications Based on Retroactive Reductions in the Crack Cocaine Guidelines


By: Evan R. Kreiner


The recent reductions in the guideline range for federal crack cocaine offenses have spurred tens of thousands of motions for sentence modifications under 18 U.S.C. § 3582(c)(2) by individuals sentenced pursuant to the old, harsher crack cocaine ...READ MORE


The Unending Search for the Optimal Infringement Filter

By Sonia K. Katyal and Jason M. Schultz

Response to: Lital Helman & Gideon Parchomovsky, The Best Available Technology Standard, 111 Colum. L. Rev. 1194 (2011)

Access-to-Justice Analysis on a Due Process Platform

By Ronald A. Brand

Response to: Christopher A. Whytock & Cassandra Burke Robertson, Forum Non Conveniens and the  Enforcement of Foreign Judgments, 111 Colum. L. Rev. 1444 (2011)


Federalism as a Safeguard of the Separation of Powers


By: Jessica Bulman-Pozen


States frequently administer federal law, yet scholars have largely overlooked how the practice of cooperative federalism affects the balance of power across the branches of the federal government. This Article explains how states check the federal executive in ...READ MORE


The Indefensible Duty to Defend

  By: Neal Devins & Saikrishna Prakash


Modern Justice Department opinions insist that the executive branch must enforce and defend laws. In the first article to systematically examine Department of Justice refusals to defend, we make four points. First, the duties ...READ MORE

Benefit Corporations: How to Enforce a Mandate to Promote the Public Interest


By: Briana Cummings


A new trend has emerged within the past decade: corporations that seek to turn a profit while affirmatively promoting the public interest. To accommodate this trend, six states have recently enacted legislation creating the benefit corporation, a for-profit ...READ MORE

On Avoiding Avoidance, Agenda Control, and Related Matters

By: Henry Paul Monaghan


Legal scholars have long posited that, heuristically at least, two basic adjudicatory models—the dispute resolution model and the law declaration model—compete for the Court’s affection along a wide spectrum of issues. The former focuses upon judicial resolution ...READ MORE


“Knowingly” Ignorant: Mens Rea Distribution in Federal Criminal Law After Flores-Figueroa

  By: Leonid (Lenny) Traps


The Supreme Court has repeatedly and emphatically disfavored applying strict liability to ambiguous elements of federal criminal statutes. The presumption against strict liability has been most pronounced where the statute at issue contains a mens rea ...READ MORE

A Federal Baseline for the Right to Vote

By John M. Greabe



The Supreme Court’s Accidental Revolution? The Test for Permanent Injunctions

By: Mark. P. Gergen, John M. Golden & Henry E. Smith


A brusque opinion by the U.S. Supreme Court in a patent case has launched a revolution in the law of equitable remedies. The Court’s opinion in eBay Inc. v. MercExchange, ...READ MORE

The Article II Safeguards of Federal Jurisdiction

By: Tara Leigh Grove


Jurisdiction stripping has long been treated as a battle between Congress and the federal judiciary. Scholars have thus overlooked the important (and surprising) role that the executive branch has played in these jurisdictional struggles. This Article seeks ...READ MORE


Recognizing Race

By: Justin Driver


Judges habitually decide whether to identify individuals racially within the context of judicial opinions. Yet this practice, which this Essay labels “recognizing race,” has thus far gone virtually unexplored by legal scholars. The dearth of scholarly attention to ...READ MORE

Reframing the Right: Using Theories of Intangible Property to Target Honest Services Fraud After Skilling

By: Brette M. Tannenbaum


Few federal criminal statutes have been as widely charged—and widely criticized—as the honest services statute, 18 U.S.C. § 1346. Primarily, this is because federal prosecutors have used the statute to charge corrupt officials with mail or wire ...READ MORE