Essay Confederate Statute Removal by Aneil Kovvali on October 28, 2017 Certain state governments have adopted statutes that are designed to prevent city governments from eliminating memorials to Confederate forces and leaders. Critics of these controversial statutes generally focus on the moral issue of preserving statues honoring white supremacy. This Essay highlights a different set of concerns: These statutes suppress the speech of cities while compelling… Volume 70 (2017-2018)
Essay The Words Under the Words by Patrick Barry on August 31, 2017 The words lawyers choose can change the decisions people make. Psychologists call the mechanics of this change “framing.” They’ve found, for example, that more people will decide to have a surgery if they are told that the “survival rate is 90%” than if they are told that the “mortality rate is 10%”—even though a survival… Volume 70 (2017-2018)
Essay Government Hacking to Light the Dark Web Risks to International Relations and International Law? by Orin S. Kerr & Sean D. Murphy on July 24, 2017 Introduction Government hacking is everywhere. Hackers working for the Russian government broke into computers run by the Democratic National Committee and stole e-mails relating to the 2016 Presidential election. Hackers traced to the Chinese government broke into U.S. government computers and copied personnel files of over 22 million employees. North Korean hackers intruded into Sony… Volume 70 (2017-2018)
Response Continuities, Ruptures, and Causation in the History of American Legal Culture by Amalia D. Kessler on July 13, 2017 Henry Vanderlyn, an antebellum lawyer from the small town of Oxford, New York, whom I discuss in Inventing American Exceptionalism, kept a daily diary for a thirty-year period and was in the habit of regaling visitors with selected readings from his collected thoughts. Confident that his visitors eagerly attended to his every word, Vanderlyn never… Volume 70 (2017-2018)
Book Review Exploring the Origins of America’s ‘Adversarial’ Legal Culture by Edward A. Purcell, Jr. on July 13, 2017 Introduction Amalia D. Kessler’s Inventing American Exceptionalism is a tour de force of historical imagination, analysis, and synthesis. Asking fresh questions that open new vistas of understanding, her book illustrates some of the complex ways that social factors shape legal thinking on matters ranging from arcane procedural technicalities to fundamental institutional assumptions. Changing social and… Volume 70 (2017-2018)
Book Review The Lawyer/Judge as Republican Hero by Mark Tushnet on July 13, 2017 Introduction Inventing American Exceptionalism tells a two-sided story. On one side is the replacement of the distinctive inquisitorial processes of equity courts with the adversarial ones of common-law courts. The equity courts relied heavily on taking testimony in writing and in secret, freezing the record so that parties could not shape their evidence in light… Volume 70 (2017-2018)
Book Review Contextualizing Inventing American Exceptionalism by Richard White on July 13, 2017 Amalia Kessler’s Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800-1877 is a stunning legal history that is even richer than the author may have intended. I would not have thought that an analysis of the oral adversarial tradition in American law could provide the larger insights that her book does. This is… Volume 70 (2017-2018)
Book Review Introduction Book Review Symposium on Inventing American Exceptionalism by Bernadette Meyler on July 13, 2017 How, when, and why did Americans become convinced both that our system of civil justice is adversarial through and through and that adversarialism is normatively desirable? Professor Amalia Kessler’s highly engaging and dauntingly erudite new book, Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800-1877, locates the answer to these questions in a… Volume 70 (2017-2018)
Essay Transformative Use in Software by Clark D. Asay on May 22, 2017 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,… Volume 70 (2017-2018)
Essay A Better Way to Revive Glass-Steagall by John Crawford on May 22, 2017 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,… Volume 70 (2017-2018)
Essay ‘Cadillac Compliance’ Breakdown by Todd Haugh on April 7, 2017 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… Volume 69 (2016-2017)
Symposium - 2017- Gorsuch Before the Robe Judge Neil M. Gorsuch by Mark C. Hansen on March 12, 2017 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?)… Volume 69 (2016-2017)
Symposium - 2017- Gorsuch A Personal Reflection on Judge Neil M. Gorsuch from a Former Colleague by Michael W. McConnell on March 12, 2017 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… Volume 69 (2016-2017)
Symposium - 2017- Gorsuch Mainstream Jurisprudence and Some First Amendment Problems Judge Neil M. Gorsuch on Free Expression by Brian C. Baran & Nathaniel Rubin on March 12, 2017 Introduction On the 2016 campaign trail, then-candidate Donald Trump promised he would pick a Supreme Court nominee in the mold of the late Justice Antonin Scalia. To this end, President Trump narrowed his candidate shortlist to three federal appellate judges who had the approval of the Heritage Foundation and Federalist Society, and whom the press… Volume 69 (2016-2017)
Symposium - 2017- Gorsuch Judge Gorsuch and Free Exercise by Sean R. Janda on March 12, 2017 Introduction This Essay examines how Judge Gorsuch, if confirmed, would approach religious freedom cases. It first looks at two free exercise cases Judge Gorsuch has participated in. Then it extracts principles from those cases and from his other writings that help explain how a Justice Gorsuch might contextualize religious freedom claims. Finally, it applies those… Volume 69 (2016-2017)
Symposium - 2017- Gorsuch Judge Gorsuch and the Establishment Clause by James Y. Xi on March 12, 2017 Introduction The proper meaning of the Establishment Clause has sharply divided the Court for decades. Nowhere is this more obvious than in cases dealing with the constitutionality of religious displays. The Court has held that it is unconstitutional, for example, for a city to display a holiday crèche (a Nativity scene) if it stands alone.… Volume 69 (2016-2017)
Symposium - 2017- Gorsuch Judge Gorsuch and the Fourth Amendment by Sophie J. Hart & Dennis M. Martin on March 12, 2017 Introduction Before Justice Scalia, pragmatic balancing tests dominated the Court’s Fourth Amendment doctrine. But by 2008, Justice Scalia had succeeded in reframing the Court’s analysis. In an opinion joined by seven other Justices, he wrote: “In determining whether a search or seizure is unreasonable, we begin with history. We look to the statutes and common… Volume 69 (2016-2017)
Symposium - 2017- Gorsuch Restraint and the Rights of Criminal Defendants Judge Gorsuch on the Sixth Amendment by Abbee Cox & Katherine Moy on March 12, 2017 Introduction Whatever openness to the claims of criminal defendants Supreme Court nominee Judge Neil Gorsuch may have displayed in his Fourth Amendment decisions finds no counterpart in his opinions touching on Sixth Amendment rights. In each of the four cases in which Judge Gorsuch has dissented on Sixth Amendment grounds, his desired holding would have… Volume 69 (2016-2017)
Symposium - 2017- Gorsuch Judge Gorsuch and the Future of Immigration Deference by Matthew Sellers on March 12, 2017 Introduction If the first couple of months of the Trump Administration are any guide, immigration will be front and center before the Supreme Court in coming terms. How a future Justice Gorsuch might rule on the thorny questions of administrative law, due process, and executive power that these cases raise will turn on how much… Volume 69 (2016-2017)
Symposium - 2017- Gorsuch Judge Gorsuch and Civil Rights A Restrictive Reading by Maria Buxton, Hannah Kieschnick & Robyn D. Levin on March 12, 2017 Introduction Upon the announcement of his nomination to the United States Supreme Court, Judge Gorsuch said that “[a] judge who likes every outcome he reaches is very likely a bad judge . . . stretching for results he prefers rather than those the law demands.” This notion is central to his jurisprudence. Judge Gorsuch hews closely to a… Volume 69 (2016-2017)