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Volume 69, Issue 5


Textualism and the Fourteenth Amendment

by  Jonathan F. Mitchell

Modern Fourteenth Amendment doctrine is difficult to square with constitutional text. The text of the Equal Protection Clause, for example, makes no distinction between racial classifications and other discriminatory practices; it requires equal protection of the laws for every “person” within a state’s jurisdiction. Nor does the text require equal treatment or equal rights; it…


The Positive U-Turn

by  Charles L. Barzun

Theories of legal interpretation have taken a “positive turn” in recent years. Some scholars have argued that disputes over how to interpret statutes and the Constitution should be resolved by looking to the social facts that determine what our positive law requires. Most of the commentary on the positive turn has focused on the substantive…


Expanding the Periphery and Threatening the Core

The Ascendant Libertarian Speech Tradition
by  Morgan N. Weiland

Though scholars have identified the expanding scope of First Amendment speech doctrine, little attention has been paid to the theoretical transformation happening inside the doctrine that has accompanied its outward creep. Taking up this overlooked perspective, this Article uncovers a new speech theory: the libertarian tradition. This new tradition both is generative of the doctrine’s…


The Emerging Constitutional Law of Prison Gerrymandering

by  Michael Skocpol

Most prisoners in the United States are counted where they are incarcerated for the purposes of legislative redistricting. This practice—which critics label “prison gerrymandering”—inflates the representation of mostly white, rural prison host communities at the expense of the urban and minority communities from which prisoners disproportionately hail. A battle to reform the practice has intensified…


Revisiting Turner v. Rogers

by  Ashley Robertson

This Note examines the practical consequences of the Supreme Court’s decision in Turner v. Rogers. In 2011, the Supreme Court held that there is no constitutional right to counsel for parents who face civil contempt for failure to pay child support. Although those parents face incarceration, the Court believed that “substitute procedural safeguards” could adequately…

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Read the Stanford Law Review Online’s Nominee Spotlight on Judge Neil M. Gorsuch, analyzing twelve areas of his jurisprudence.

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Recent Online Essays

Transformative Use in Software

Introduction Fair use is copyright law’s most important defense against claims of copyright infringement. Major corporations depend on it to pursue a variety of technological innovations; universities rely on it for a number of educational purposes; and innovative parties frequently resort to it in creating works that build upon the creativity of others. In short,…

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A Better Way to Revive Glass-Steagall

Introduction The financial crisis of 2007-2008 repeatedly forced regulators to face terrible choices between risking catastrophic contagion by letting particular firms or markets fail, and intervening to bail them out. One explanation of why these dilemmas arose was that financial firms were “too big to fail.” Nearly a decade after the onset of the crisis,…

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‘Cadillac Compliance’ Breakdown

Introduction The recent defeat device scandal at Volkswagen, in which VW engineers created and installed a computer algorithm to cheat emissions testing on over eleven million automobiles, brings together two things I spend time thinking about: white collar crime and cars. While that may seem like an odd combination, VW’s troubles happen to marry my…

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Before the Robe

Judge Neil M. Gorsuch

The Honorable Neil M. Gorsuch was not the distinguished silver-haired jurist we see now when he walked through the doors of our start-up law firm in the fall of 1995. He was, like the other supremely talented young lawyers we hired to help us build a practice in the attorney-infested (or should I say shark-infested?)…

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A Personal Reflection on Judge Neil M. Gorsuch from a Former Colleague

I served with Judge Neil Gorsuch on the Court of Appeals for the Tenth Circuit for over three years, before I left the bench to teach constitutional law at Stanford. I sat with him in about fifty cases. Sometimes we disagreed, strongly. More often, we agreed. I want to share my impressions of Judge Gorsuch…

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Featured Topic in the Law

Deference to Agency Interpretations

With upcoming Supreme Court cases, recent bills, and the new Supreme Court nomination, judicial deference to agency interpretations has come under scrutiny. Here are a few pieces from the Stanford Law Review archives on the issue.

Constitutional Administration

Refugee Roulette

Refugee Roulette in an Administrative Law Context

Inside Agency Statutory Interpretation