The Stanford Law Review is a legal publication run by Stanford Law School students since 1948, providing expert legal scholarship, analysis, and commentary.
SLR ONLINE • RECENT POSTS
by Jane Yakowitz Bambauer
The U.S. Supreme Court will soon determine whether a trained narcotics dog’s sniff at the front door of a home constitutes a Fourth Amendment search. The case, Florida v. Jardines, has privacy scholars abuzz because it presents two possible shifts in Fourth Amendment jurisprudence. First, the Court might expand the physical spaces rationale from Justice Scalia’s majority opinion in United States v. Jones. A favorable outcome for Mr. Jardines could reinforce that the home is a formidable privacy fortress, protecting all information from government detection unless that information is visible to the human eye. Alternatively, and more sensibly, the Court may choose to revisit its previous dog sniff cases, United States v. Place and Illinois v. Caballes. [...]
May 09, 2012
64 Stan. L. Rev. Online 131
by Lee Petherbridge & Jason Rantanen
On September 16, 2011, President Obama signed into law the Leahy-Smith America Invents Act. It embodies the most substantial legislative overhaul of patent law and practice in more than half a century. Commentators have begun the sizable task of unearthing and calling attention to the many effects the Act may have on the American and international innovation communities. Debates have sprung up over the consequences to inventors small and large, and commentators have obsessed over the Act’s so-called “first-to-file” and “post-grant review” provisions. Lost in the frenzy to understand the consequences of the new Act has been the demise of patent law’s “best mode” requirement. [...]
April 25, 2012
64 Stan. L. Rev. Online 125
How should the legal system adjust to our evolving and oftentimes conflicting expectations of privacy? Experts weigh in on this important question in areas ranging from political data to government searches in this 2012 Symposium Issue. [...]
by Nan D. Hunter
There is a concern among supporters of marriage equality, especially those in the legal academy, that the decision of the Ninth Circuit in Perry v. Brown was too good to be true or, perhaps, too clever to be sustainable. Judges Reinhardt and Hawkins crafted a decision that struck down Proposition 8 with reasoning that applies only to California. All but ignoring Judge Walker’s far-reaching trial court opinion in Perry v. Schwarzenegger, they grounded their analysis in an application of heightened rational basis scrutiny, derived from Romer v. Evans, that emphasized the significance of taking away an important right from an unpopular minority. [...]
March 19, 2012
64 Stan. L. Rev. Online 111
Responses
by Scott J. Shackelford
The Cybersecurity Act of 2012, which was recently introduced in the Senate Homeland Security and Governance Affairs Committee, is the latest legislative attempt to enhance the nation’s cybersecurity. If enacted, the bill would grant new powers to the Department of Homeland Security (DHS) to oversee U.S. government cybersecurity, set “cybersecurity performance requirements” for firms operating what DHS deems to be “critical infrastructure,” and create “exchanges” to promote information sharing. In its current form, the bill is a useful step in the right direction but falls short of what is required. Fundamentally the bill misconstrues the scale and complexity of the evolving cyber threat by defining critical infrastructure too narrowly and relying too much on voluntary incentives and risk mitigation strategies. The Act might improve on the status quo, but it will not foster genuine and lasting cybersecurity. [...]
March 08, 2012
64 Stan. L. Rev. Online 106
Essays
SLR PRINT • LATEST ISSUE
by Brian Galle
Externalities are one of the most fundamental market failure justifications for government action, and Pigouvian taxes and subsidies are standard tools for correcting them. Even so, neither the legal nor the economic literature offers any comprehensive account of when policymakers should prefer taxes to subsidies or vice versa. This Article takes up that task. Prior efforts to distinguish between “carrots” and “sticks” have generally been limited to the context of pollution regulation, and I show here that even those efforts are incomplete. [...]
April 2012
64 Stan. L. Rev. 797
Article
by Dan M. Kahan, David A. Hoffman, Donald Braman, Danieli Evans & Jeffrey J. Rachlinski
"Cultural cognition" refers to the unconscious influence of individuals' group commitments on their perceptions of legally consequential facts. We conducted an experiment to assess the impact of cultural cognition on perceptions of facts relevant to distinguishing constitutionally protected "speech" from unprotected "conduct." Study subjects viewed a video of a political demonstration. [...]
April 2012
64 Stan. L. Rev. 851
Article
by Adriaan Lanni & Adrian Vermeule
This paper identifies two distinctive features of ancient constitutional design that have largely disappeared from the modern world: constitution-making by single individuals and constitution-making by foreigners. We consider the virtues and vices of these features, and argue that under plausible conditions single founders and outsider founders offer advantages over constitution-making by representative bodies of citizens, even in the modern world. [...]
April 2012
64 Stan. L. Rev. 907
Article
by Dotan Oliar
Should the law secure to copyright owners control over new technological uses of their works? Or should the law leave technological innovators free to explore and exploit such uses? The greater the control afforded to copyright owners, the greater the incentive to produce content, but also the greater the disincentive to produce better technologies to enjoy it. [...]
April 2012
64 Stan. L. Rev. 951
Article
by Jonathan Abel
States use judicial conduct commissions to discipline judges who misbehave, but there is a large disparity among commissions in the number of disciplinary actions they take. What makes some commissions more prone to mete out discipline than others? [...]
April 2012
64 Stan. L. Rev. 1021
Note
by Julia Lees Allen
This Note analyzes the effectiveness of derivatives clearinghouses in decreasing systemic risk upon a counterparty default. The analysis first explains how a derivatives clearinghouse can successfully reduce systemic risk by analyzing LCH.Clearnet's management of the Lehman default in 2008. Next, the analysis demonstrates that if a clearinghouse could not manage a default and became insolvent, systemic risk would greatly increase. [...]
April 2012
64 Stan. L. Rev. 1079
Note
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