Disappearing Legal Black Holes and Converging Domains: Changing Individual Rights Protection in National Security and Foreign Affairs

By:  Andrew Kent

 

This Essay attempts to describe what is distinctive about the way the protection of individual rights in the areas of national security and foreign affairs has been occurring in recent decades. Historically, the right to protection under the ...READ MORE

The Problem of Voter Fraud

By: Michael D. Gilbert

 

Voter-identification laws (“voter ID laws”) have provoked a fierce controversy in politics and public law. Supporters claim that such laws deter fraudulent votes and protect the integrity of American elections. Opponents, on the other hand, argue that ...READ MORE

The Freedom of Business Association

By:  James D. Nelson

 

Across the First Amendment, the distinction between for-profit businesses and nonprofit organizations is in trouble. In recent years, courts have rejected this distinction in the context of free-speech challenges to campaign-finance restrictions and free-exercise claims to obtain ...READ MORE

 

Catalogs

By:  Gideon Parchomovsky & Alex Stein

 

It is a virtual axiom in the world of law that legal norms come in two prototypes: rules and standards. The accepted lore suggests that rules should be formulated to regulate recurrent and frequent behaviors, ...READ MORE

Risky Arguments in Social-Justice Litigation: The Case of Sex Discrimination and Marriage Equality

By:  Suzanne B. Goldberg

 

This Essay takes up the puzzle of the risky argument or, more precisely, the puzzle of why certain arguments do not get much traction in advocacy and adjudication even when some judges find them to be utterly ...READ MORE

Narrowing Precedent in the Supreme Court

By:  Richard M. Re

 

“Narrowing” occurs when a court declines to apply a precedent even though, in the court’s own view, the precedent is best read to apply. In recent years, the Roberts Court has endured withering criticism for narrowing in ...READ MORE

 

Toward a Constitutional Review of the Poison Pill

By:  Lucian A. Bebchuk & Robert J. Jackson, Jr.

 

We argue that the state-law rules governing poison pills are vulnerable to challenges based on preemption by the Williams Act. Such challenges, we show, could well have a major impact on the ...READ MORE

Free Speech and Guilty Minds

By:  Leslie Kendrick

 

It is axiomatic that whether speech is protected turns on whether it poses a serious risk of harm—in Holmes’s formulation, a “clear and present danger.” If this is correct, then the state of mind, or intent, of the ...READ MORE

Protecting Reliance

By:  Victor P. Goldberg

 

Reliance plays a central role in contract law and scholarship. One party relies on the other’s promised performance, its statements, or its anticipated entry into a formal agreement. Saying that reliance is important, however, says nothing ...READ MORE

 

Contracting Around Citizens United

By:  Ganesh Sitaraman

 

The Supreme Court’s decision in Citizens United v. FEC is widely considered a major roadblock for campaign finance reform, and particularly for limiting third party spending in federal elections. In response to the decision, commentators, scholars, and activists have ...READ MORE

Can We Do Better by Ordinary Investors? A Pragmatic Reaction to the Dueling Ideological Mythologists of Corporate Law

By:  Leo E. Strine, Jr.

 

In his essay, The Myth That Insulating Boards Serves Long- Term Value, Professor Lucian Bebchuk draws a stark dichotomy between so-called “insulation advocates” and proponents of shareholderdriven direct democracy. This Essay begins by rejecting this crude ...READ MORE

The Real World of Cost-Benefit Analysis: Thirty-Six Questions (and Almost as Many Answers)

By:  Cass R. Sunstein

 

Some of the most interesting discussions of cost-benefit analysis focus on exceptionally difficult problems, including catastrophic scenarios, “fat tails,” extreme uncertainty, intergenerational equity, and discounting over long time horizons. As it operates in the actual world of ...READ MORE

 

Copyright Infringement Markets

By:  Shyamkrishna Balganesh

 

Should copyright infringement claims be treated as marketable assets? Copyright law has long emphasized the free and independent alienability of its exclusive rights. Yet, the right to sue for infringement—which copyright law grants authors in order to render ...READ MORE

Legal Diversification

By:  Kelli A. Alces

 

The greatest protection investors have from the risks associated with capital investment is diversification. This Essay introduces a new dimension of diversification for investors: legal diversification. Legal diversification of investment means building a portfolio of securities that ...READ MORE

The Myth That Insulating Boards Serves Long-Term Value

By:  Lucian A. Bebchuk

 

According to an influential view in corporate law writings and debates, pressure from shareholders leads companies to take myopic actions that are costly in the long term, and insulating boards from such pressure serves the long-term interests ...READ MORE

 

Trial by Preview

By:  Bert I. Huang

 

It has been an obsession of modern civil procedure to design ways to reveal more before trial about what will happen during trial. Litigants today, as a matter of course, are made to preview the evidence they ...READ MORE

Presidential Power, Historical Practice, And Legal Constraint

By:  Curtis A. Bradley & Trevor W. Morrison

 

The scope of the President’s legal authority is determined in part by historical practice. This Essay aims to better understand how such practice-based law might operate as a constraint on the presidency. In ...READ MORE

The Upside of Losing

By:  Ben Depoorter

 

Conventional understanding in legal reform communities is that time and resources are best directed toward legal disputes that have the highest chance of success and that litigation is to be avoided if it is likely to establish or ...READ MORE

 

The New Textualism and Normative Canons

By: William N. Eskridge, Jr.

In Reading Law, Justice Scalia and his coauthor, Professor Bryan Garner, promise that text-based statutory interpretation can be rendered more predictable and constraining if 57 “valid canons” are followed. Admiring the enterprise, this Review maintains that ...READ MORE

Malpractice Mobs: Medical Dispute Resolution in China

  By: Benjamin L. Liebman

 

China has experienced a surge in medical disputes in recent years, on the streets and in the courts. Many disputes result in violence. Quantitative and qualitative empirical evidence of medical malpractice litigation and medical disputes in ...READ MORE