On Mass Patent Aggregators

By: David L. Schwartz


Response to: Mark A. Lemley & A. Douglas Melamed, Missing the Forest for the Trolls, 113 Colum. L. Rev. 2117 (2013).


The debate about patent trolls is everywhere. From the op-ed pages of The Wall Street Journal and ...READ MORE

Borrowing by Any Other Name: Why Presidential “Spending Cuts” Would Still Exceed the Debt Ceiling

Neil H. Buchanan* and Michael C. Dorf**


On multiple occasions since mid-2011, the United States has come perilously close to exhausting its borrowing authority under a statutory limit commonly called the “debt ceiling.” In prior work, we argued that, in the event ...READ MORE

The Contraception Mandate Debate: Achieving a Sensible Balance

 Alan E. Garfield*

A slew of secular for-profit businesses have sued seeking exemptions from the contraception mandate and many have succeeded in obtaining preliminary injunctions. This Essay explains why courts have found these claims credible under the Religious Freedom Restoration Act ...READ MORE


Windsor, Animus, and the Future of Marriage Equality

Susannah W. Pollvogt*



By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.1

Justice Scalia is certain that the reasoning of the majority ...READ MORE

Policing the Immigration Police: ICE Prosecutorial Discretion and the Fourth Amendment

Jason A. Cade*




A persistent puzzle in immigration law is how the removal adjudication system should respond to the increasing prevalence of violations of noncitizens’ constitutional rights by arresting officers. Scholarship in this area has focused on judicial suppression of unconstitutionally ...READ MORE

Windsor, Federalism, and Family Equality

Courtney G. Joslin*




On June 26, 2013, the Supreme Court issued its opinion in United States v. Windsor.1 In a 5-4 decision authored by Justice Kennedy, the Court held that section 3 of the Federal Defense of Marriage Act (DOMA)2 is unconstitutional.3 Advocates had ...READ MORE


Applying Miranda’s Public Safety Exception to Dzhokhar Tsarnaev: Restricting Criminal Procedure Rights by Expanding Judicial Exceptions


Joanna Wright*




When the Federal Bureau of Investigation (FBI) finally apprehended Dzhokhar Tsarnaev, the only surviving suspect in the April 15, 2013, Boston Marathon Bombing, he was suffering from a gunshot wound and taken directly to the hospital, where he drifted ...READ MORE

The S&P Litigation and Access to Federal Court: A Case Study in the Limits of Our Removal Model

Gil Seinfeld*




On June 6, 2013, the United States Judicial Panel on Multidistrict Litigation (the MDL panel) ordered the consolidation of fifteen actions filed by state attorneys general (AGs) against the Standard & Poor’s rating agency (S&P) for its role in ...READ MORE

Just Enough

Lee Anne Fennell*

Response to: Brian Angelo Lee, Just Undercompensation: The Idiosyncratic Premium in Eminent Domain, 113 Colum. L. Rev. 593 (2013).


Does the constitutional measure of just compensation—fair market value—unfairly undercompensate those whose property is taken through eminent domain? The question ...READ MORE


Ham Sandwich Nation: Due Process When Everything Is a Crime

Glenn Harlan Reynolds*


Prosecutorial discretion poses an increasing threat to justice. The threat has in fact grown more severe to the point of becoming a due process issue. Two recent events have brought more attention to this problem. One involves the ...READ MORE

Coordination Reconsidered

Richard Briffault*


At the heart of American campaign finance law is the distinction drawn by the Supreme Court in Buckley v. Valeo between contributions and expenditures.1 According to the Court, contributions may be limited because they pose the dangers of corruption and the ...READ MORE

Lessons on Terrorism and “Mistaken Identity” from Oak Creek, with a Coda on the Boston Marathon Bombings

 Dawinder S. Sidhu*




On Sunday, August 5, 2012, Wade Michael Page opened fire on worshippers at a Sikh temple1 in Oak Creek, Wisconsin, killing six people and ending his own life after exchanging gunshots with responding police officers.2 Incidents of this sort naturally ...READ MORE


South Carolina’s “Evolutionary Process”


Ellen D. Katz*

Part of the Columbia Law Review’s 2012-2013 Election Law Sidebar Essay Series


When Congress first enacted the Voting Rights Act (VRA) in 1965, public officials in South Carolina led the charge to scrap the new statute. Their brief to ...READ MORE

Beyond “Perfection”: Can the Insights of Perfecting Criminal Markets Be Put to Practical Use?

Caren Myers Morrison*

Response to: David Michael Jaros, Perfecting Criminal Markets, 112 Colum. L. Rev. 1947 (2012), available here.


David Jaros’s thought-provoking new Article, Perfecting Criminal Markets,1 sheds light on a heretofore unappreciated effect of our obsession with criminalization: that merely by ...READ MORE

Bargaining in the Shadow of the Debt Ceiling: When Negotiating over Spending and Tax Laws, Congress and the President Should Consider the Debt Ceiling a Dead Letter

Neil H. Buchanan* and Michael C. Dorf**

  If the debt ceiling is inconsistent with existing spending and taxing laws, what must the President do? In earlier work, we argued that when Congress creates a “trilemma”—making it impossible for the President to ...READ MORE


Class Actions All the Way Down

Sergio J. Campos*


Response to: Michael D. Sant’Ambrogio & Adam Zimmerman, The Agency Class Action, 112 Colum. L. Rev. 1992 (2012).



In his review of Kill Bill Volume I, Roger Ebert describes the film as “kind of brilliant,” and then proceeds to ...READ MORE

Some Pluralism About Pluralism: A Comment on Hanoch Dagan’s “Pluralism and Perfectionism in Private Law”

Jedediah Purdy*

Response to: Hanoch Dagan, Pluralism and Perfectionism in Private Law, 112 Colum. L. Rev. 1409 (2012).


Hanoch Dagan is among “those who think it advantageous to get as much ethics into the law as they can,” in the phrase of ...READ MORE

“Recognizing Race” and the Elusive Ideal of Racial Neutrality

David A. Strauss*

Response to: Justin Driver, Recognizing Race, 112 Colum. L. Rev. 404 (2012).



In 1960, Louisiana enacted a statute requiring that the race of any candidate for office be listed on the ballot opposite the candidate’s name.1 In Anderson v. Martin,2 the ...READ MORE


Nullifying the Debt Ceiling Threat Once and for All: Why the President Should Embrace the Least Unconstitutional Option

Neil H. Buchanan* & Michael C. Dorf**


I. Introduction


In August 2011, Congress and the President narrowly averted economic and political catastrophe, agreeing at the last possible moment to authorize a series of increases in the national debt ceiling.1 This respite, unfortunately, was merely ...READ MORE

The Purpose-Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing

Colin Miller*


Under the doctrine of forfeiture by wrongdoing, a party who successfully engages in conduct designed to render a prospective witness unavailable at trial forfeits his objection to the admission of hearsay statements made by that witness. Typically, this forfeiture ...READ MORE