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Programming code abstract technology background of software deve

Essay

Transformative Use in Software

by  Clark D. Asay  

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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manhattan office building

Essay

A Better Way to Revive Glass-Steagall

by  John Crawford  

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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Old Cadillac Eldorado

Essay

‘Cadillac Compliance’ Breakdown

by  Todd Haugh  

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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Neil Gorsuch

Essay

Before the Robe

Judge Neil M. Gorsuch
by  Mark C. Hansen  

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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Byron White United States Courthouse in Denver

Essay

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

by  Michael W. McConnell  

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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Closeup of First Amendment to the United States Constitution

Mainstream Jurisprudence and Some First Amendment Problems

Judge Neil M. Gorsuch on Free Expression
by  Brian C. Baran & Nathaniel Rubin  

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…

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Essay

Judge Gorsuch and Free Exercise

by  Sean R. Janda  

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…

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Woman with Bible

Essay

Judge Gorsuch and the Establishment Clause

by  James Y. Xi  

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.…

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Police dog. Policeman with a German shepherd on duty.

Essay

Judge Gorsuch and the Fourth Amendment

by  Sophie J. Hart & Dennis M. Martin  

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…

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Decorative Scales of Justice in the Courtroom

Essay

Restraint and the Rights of Criminal Defendants

Judge Gorsuch on the Sixth Amendment
by  Abbee Cox & Katherine Moy  

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…

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Statue of Liberty

Essay

Judge Gorsuch and the Future of Immigration Deference

by  Matthew Sellers  

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…

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Essay

Judge Gorsuch and Civil Rights

A Restrictive Reading
by  Maria Buxton, Hannah Kieschnick & Robyn D. Levin  

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…

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Close-up of a police officer’s service revolver

Essay

Judge Gorsuch on Qualified Immunity

by  Shannon M. Grammel  

Introduction In the wake of Tenth Circuit Judge Neil Gorsuch’s nomination to the Supreme Court, there has been much buzz about his 2016 dissent in a case involving a seventh grader arrested for burping during gym class. The Tenth Circuit shielded the arresting officer from suit, granting him qualified immunity. Judge Gorsuch disagreed: “Respectfully, I…

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Confident Businessman Giant Towering Over City Skyline

Essay

If Goliath Falls

Judge Gorsuch and the Administrative State
by  Trevor W. Ezell & Lloyd Marshall  

Introduction When it comes to Judge Gorsuch’s views on administrative law, the focus has been on one opinion—his concurrence in Gutierrez-Brizuela v. Lynch. In addition to authoring the majority opinion, Judge Gorsuch concurred separately to air concerns over Chevron’s rule requiring courts to defer to the judgments of executive agencies. “We managed to live with…

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Monopoly in play – view from Go corner with car

Essay

Judge Gorsuch on Antitrust

by  Rachel Frank  

Introduction With a career spanning the Justice Department, private practice, and the bench, Judge Gorsuch would bring to the Supreme Court an antitrust background comparable to that of former Justice John Paul Stevens. His background demonstrates a suspicion of unilateral theories of liability and a preference for bright-line rules that points to him leading the…

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Wooden Judges Gavel And Old Law Books On Wooden Background

Essay

Justice Scalia’s Heir Apparent?

Judge Gorsuch’s Approach to Textualism and Originalism
by  Max Alderman & Duncan Pickard  

Introduction Numerous commentators argue that, if confirmed, Justice Neil Gorsuch would follow the late Justice Antonin Scalia’s signature methodological contributions: originalism and textualism. Indeed, Judge Gorsuch styles himself as a judge in Justice Scalia’s vein. In a tribute to the late Justice, he responded to Justice Scalia’s critics by arguing that “an assiduous focus on…

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Businesspeople Sitting On Chair

Essay

Rights, Facts, and Relevant Inquiries

Surveying Judge Neil M. Gorsuch’s Employment Law Jurisprudence
by  Camille E. Peeples  

Introduction What consequences will the 2016 election have for employment and labor law? President Trump’s potential policies are uncertain, especially given Andrew Puzder’s withdrawal and Alexander Acosta’s nomination as Labor Secretary. Consequently, Supreme Court nominee Judge Neil M. Gorsuch’s past Tenth Circuit decisions may be increasingly of interest. This Essay presents a brief overview of…

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USA Supreme Court Building

Essay

American Pipe Tolling, Statutes of Repose, and Protective Filings

An Empirical Study
by  David Freeman Engstrom & Jonah B. Gelbach  

I. American Pipe Tolling and the Problem of Protective Filings In American Pipe & Construction Co. v. Utah, the Supreme Court wisely rationalized class action law and policy under Rule 23 by holding that the filing of a class action complaint “suspends the applicable statute of limitations as to all asserted members of the class…

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Young boy playing Pokemon Go

Essay

Gotta Collect It All!

Surveillance Law Lessons of Pokémon Go
by  Brandon R. Teachout  

Days after the release of the mobile game Pokémon Go, a privacy flap ensued from press reports revealing that users on Apple phones who logged in through a Google account had unwittingly granted the developer, Niantic, access to their entire Google account. Moreover, the application’s (app’s) privacy policy allowed Niantic to disclose any information it…

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Self driving vehicle

Essay

A Loophole Large Enough to Drive an Autonomous Vehicle Through

The ADA’s “New Van” Provision and the Future of Access to Transportation
by  Bryan Casey  

“If it looks like a duck, and quacks like a duck, we have at least to consider the possibility that we have a small aquatic bird of the family Anatidœ on our hands.” —Douglas Adams Introduction In August 2016, Uber startled the world by announcing that its customers would soon have a small chance of…

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