This Reply addresses the responses by Professors David Bernstein and Jed Shugerman to our essay Asymmetric Constitutional Hardball. Bernstein’s response, we argue, commits the common fallacy of equating reciprocity with symmetry: assuming that because constitutional hardball often “takes two” to play, both sides must be playing it in a similar manner. Shugerman’s response, on the other hand, helps combat the common fallacy of equating...
CLR Forum
The “constitutional hardball” metaphor used by legal scholars and political scientists illuminates an important phenomenon in American politics, but it obscures a crisis in American democracy. In baseball, hardball encompasses legitimate tactics: pitching inside to brush a batter back but not injure, hard slides, hard tags. Baseball fans celebrate hardball. Many of the constitutional hardball maneuvers previously identified by scholars have...
Introduction In his important article, Criminal Justice, Inc., Professor John Rappaport identifies the establishment of a new and novel institution: a private company retained by retail stores to dispose of cases involving shoplifting claims. Still in its infancy, this new development has spawned two private for-profit, specialist companies since 2010: the Corrective Education Company (CEC) […]
Introduction American party politics may be as nationally competitive as they have ever been, but at the same time they are perhaps as unresponsive to average citizens as they have been in a long time. It is this paradox that Professor Tabatha Abu El-Haj creatively interrogates in her essay, Networking the Party: First Amendment Rights […]
Introduction On October 27, 2016, Casey Camp-Horinek was arrested for praying. The State of North Dakota claims that she was arrested for trespass, rioting, and endangerment by fire, but Camp-Horinek was acting out of a religious duty to protect the purity of Lake Oahe. This Comment will discuss whether the enforcement of these laws against […]
This Response addresses Professors Joseph Fishkin and David Pozen’s Asymmetric Constitutional Hardball. Fishkin and Pozen argue that Republicans have engaged in “asymmetric constitutional hardball” since 1993. This Response accepts the authors’ contention that Republicans have increasingly engaged in constitutional hardball but casts doubt on the purported asymmetry.
Part I questions whether one of the authors’ primary examples...
Introduction According to the opinions in In re Trados (Trados) and In re Nine Systems (Nine Systems), both cases involved the peculiar corporate law equivalent of a burglary in which nothing was stolen. In Trados, the board of directors—composed mostly of representatives from venture capital (VC) firms holding preferred stock—voted in favor of a $60 million merger […]
Introduction Partisan gerrymandering has a lengthy history, as political parties in power have repeatedly sought to construct electoral districts in ways that disfavor the minority party and ensure majority-party dominance. While more recently it appears that Republicans have reaped more of the benefits of partisan gerrymandering, over the past fifty years, each major political party, […]
Introduction “[T]he majority has chosen the winners by turning the First Amendment into a sword, and using it against workaday economic and regulatory policy. Today is not the first time the Court has wielded the First Amendment in such an aggressive way. And it threatens not to be the last. Speech is everywhere—a part of […]
The harmless error doctrine is beset with problems, both theoretical and practical. In Harmless Error and Substantial Rights, recently published in the Harvard Law Review, Professor Daniel Epps proposes a reconceptualization of constitutional criminal procedure rights that is designed to address these problems. Epps argues that those constitutional criminal procedure rights that are capable of being violated by prosecutors...