Hobby Lobby: Its Flawed Interpretive Techniques and Standards of Application

By: Kent Greenawalt*




At the end of June 2014, the Supreme Court decided one of the most publicized controversies of decades. In a decision covering two cases, widely referred to as Hobby Lobby,[1] the Court held that closely held for-profit corporations, based ...READ MORE

A Strategic Legal Challenge to the Unforeseen Anticompetitive and Racially Discriminatory Effects of Baseball’s North American Draft

By: Stephen F. Ross* & Michael James, Jr.**




Major League Baseball (MLB) has honored a single player by retiring his number for every club. Absent special commemorations, no player will wear the number “42” in honor of the man who broke the ...READ MORE

Fair Housing Litigation After Inclusive Communities: What’s New and What’s Not

By: Robert G. Schwemm

  On June 25, 2015, the Supreme Court held in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. (Inclusive Communities or ICP )[1] that parts of the federal Fair Housing Act (FHA)[2] include a disparate-impact standard of ...READ MORE


One-off or a Sign of Things to Come? In Re Cuozzo and the Scope of the United States Patent and Trademark Office’s Rulemaking Authority

By: Allyson E. Mackavage*



  The America Invents Act[1] (AIA) provided the first comprehensive reform of patent law since the modern patent act was passed in 1952.[2] It was the product of many compromises, and its effect on the balance of power between ...READ MORE

Judges on Demand: The Cognitive Case for Cameras in the Courtroom

By: Jordan M. Singer*


In 2011, the federal district courts began a pilot program to record and post full-length videos from selected civil proceedings. The program was deliberately structured to preserve the quality and integrity of ongoing adjudication. Three-and-a-half years in, ...READ MORE

Residual Impact: Resentencing Implications of Johnson’s Potential Ruling on ACCA’s Constitutionality

By: Leah M. Litman*

  In January 2015, the Supreme Court directed the parties to brief and argue an additional question in Johnson v. United States: “Whether the residual clause in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii), ...READ MORE


Corporate Social Responsibility in the Night-Watchman State

By: Stephen M. Bainbridge*


When any Chief Justice of the Delaware Supreme Court speaks on a corporate law topic, lawyers and academics who toil in that doctrinal vineyard listen.[1] When that Chief Justice is Leo Strine, they listen especially closely. The “well-respected”[2] Chief ...READ MORE

Negotiating Federalism and the Structural Constitution: Navigating the Separation of Powers Both Vertically and Horizontally

By: Erin Ryan *


Response to: Aziz Z. Huq, The Negotiated Structural Constitution, 114 Colum. L. Rev. 1595 (2014).


This Essay explores the emerging literature on the negotiation of structural constitutional governance, to which Professor Aziz Huq has made an important contribution in ...READ MORE

Free Speech and Speaker’s Intent: A Reply to Kendrick

By: Larry Alexander*


Response to: Leslie Kendrick, Free Speech and Guilty Minds, 114 Colum. L. Rev. 1255 (2014).


I have argued that a speaker’s mental state with respect to whether her words will cause harms that the government can legitimately seek to ...READ MORE


The Shadowy Contours of Bankruptcy Resistant Investments

By: Jared A. Ellias**


Response to: Douglas G. Baird & Anthony J. Casey, No Exit? Withdrawal Rights and the Law of Corporate Reorganizations, 113 Colum. L. Rev. 1 (2013).


Baird and Casey recently argued in favor of contractual innovations that allow lenders ...READ MORE

Gender Diversity and Same-Sex Marriage

By: Ian Farrell* & Nancy Leong**




Opponents of same-sex marriage have recently adopted a curious new argument. The argument goes something like this. The Supreme Court has held that diversity is a compelling state interest in institutions of higher education. Opposite-sex marriage ...READ MORE


McCutcheon Calls for a National Referendum on Campaign Finance (Literally)

By: Andrew Tutt*


In McCutcheon v. FEC, the Supreme Court tightened First Amendment limits on Congress’s authority to regulate campaign financing. McCutcheon ostensibly left in place the old regime that allows campaign-finance regulation so long as it strikes at quid pro quo ...READ MORE

Not Helping: How Congressional Tinkering Harms Victims During the Post-Trial Phase of a Court-Martial

By: Zachary D Spilman*





Congress made many changes to the Uniform Code of Military Justice1 (UCMJ) in the National Defense Authorization Act for Fiscal Year 2014.2 Among these are two changes to Article 60 of the UCMJ that address the participation of victims ...READ MORE

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