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habeas

Essay

Regulating Through Habeas

A Bad Incentive for Bad Lawyers?
by  Doug Lieb  

The most important—and most heavily criticized—provisions of the Antiterrorism and Effective Death Penalty Act restricted federal courts’ ability to hear habeas petitions and grant relief to prisoners. But the 1996 law also included another procedural reform, now tucked away in a less-traveled corner of the federal habeas statute. It enables a state to receive fast-track…

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64SLRO152

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Discrimination, Preemption, and Arizona’s Immigration Law

A Broader View
by  Lucas Guttentag  

The Supreme Court is expected to decide within days whether Arizona’s controversial immigration enforcement statute, S.B. 1070, is unconstitutional. Arizona’s law is widely condemned because of the discrimination the law will engender. Yet the Court appears intent on relegating questions of racial and ethnic profiling to the back of the bus, as it were. That…

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money-crisis

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The Money Crisis

How Citizens United Undermines Our Elections and the Supreme Court
by  Russ Feingold  

As we draw closer to the November election, it becomes clearer that this year’s contest, thanks to the Supreme Court’s 2010 Citizens United decision, will be financially dominated by big money, including, whether directly or indirectly, big money from the treasuries of corporations of all kinds. Without a significant change in how our campaign finance…

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aca

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Health Care and Constitutional Chaos

Why the Supreme Court Should Uphold the Affordable Care Act
by  Eric Segall & Aaron E. Carroll  

The Supreme Court’s decision on the constitutionality of the Affordable Care Act (ACA) will likely be handed down on the last day of this year’s term. If the Court finds that the ACA—either in whole or in part—violates the Constitution, the health care industry will be shaken to its core. And, no matter what legal…

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dogsniff

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How the War on Drugs Distorts Privacy Law

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…

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memoriam-best-mode

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In Memoriam Best Mode

by  Lee Petherbridge & Jason Rantanen  

On September 16, 2011, President Obama signed into law the Leahy-Smith America Invents Act (“AIA” or “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…

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animus-thick-thin_0

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Animus Thick and Thin

The Broader Impact of the Ninth Circuit Decision in Perry v. Brown
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…

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cyber-security

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In Search of Cyber Peace

A Response to the Cybersecurity Act of 2012
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…

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brownstones

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Physical and Regulatory Takings

One Distinction Too Many
by  Richard A. Epstein  

At this moment, it looks as though the law of eminent domain takings is in a quiet phase, as the Supreme Court has not recently taken any major case that examines the foundations of the field. One apparently settled area of takings jurisprudence deals with rent control, where the Court provides only scant protection to…

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wedding-rings

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The Ninth Circuit’s Perry Decision and the Constitutional Politics of Marriage Equality

by  William N. Eskridge Jr.  

In Perry v. Brown, the Ninth Circuit ruled that California’s Proposition 8 violates the Equal Protection Clause. Reacting to the state supreme court’s recognition of marriage equality for lesbian and gay couples, Proposition 8 was a 2008 voter initiative that altered the state constitution to “restore” the “traditional” understanding of civil marriage to exclude same-sex…

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abandoned-basketball

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The 2011 Basketball Lockout

The Union Lives to Fight Another Day—Just Barely
by  William B. Gould IV  

Sports in 2011 was synonymous with labor-management relations, which became contentious in two of the three sports in which collective bargaining agreements expired—football and basketball. The National Basketball Association (NBA or the owners), for its part, made it clear that it would utilize a lockout as a means of economic pressure to obtain the kind…

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leaving-iraq

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The Iraq War, the Next War, and the Future of the Fat Man

by  Stephen L. Carter  

When the last American combat troops departed Iraq in December, they left behind a disordered democracy that may not survive, along with a great deal of ethical confusion. The invasion of Iraq in 2003 represented the apotheosis of “anticipatory” self-defense—the theory that the use of armed force can be justified to prevent an attack that…

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health-care-cases

Essay

How to Reach the Constitutional Question in the Health Care Cases

by  Daniel J. Hemel  

Although the Supreme Court has agreed to hear three suits challenging the 2010 health care reform legislation, it is not at all clear that the Court will resolve the constitutional questions at stake in those cases. Rather, the Justices may decide that a Reconstruction-era statute, the Tax Anti-Injunction Act (TA-IA), requires them to defer a…

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at-sign-seized

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Don’t Break the Internet

by  Mark Lemley, David S. Levine & David G. Post  

Two bills now pending in Congress—the PROTECT IP Act of 2011 (Protect IP) in the Senate and the Stop Online Piracy Act (SOPA) in the House—represent the latest legislative attempts to address a serious global problem: large-scale online copyright and trademark infringement. Although the bills differ in certain respects, they share an underlying approach and…

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drones-eye-view

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The Drone as Privacy Catalyst

by  M. Ryan Calo  

Associated today with the theatre of war, the widespread domestic use of drones for surveillance seems inevitable. Existing privacy law will not stand in its way. It may be tempting to conclude on this basis that drones will further erode our individual and collective privacy. Yet the opposite may happen. Drones may help restore our…

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statue-of-liberty-sunset

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Sweet Home Alabama?

Immigration and Civil Rights in the “New” South
by  Kevin R. Johnson  

In the next few weeks, the Supreme Court will decide whether to review the constitutionality of Arizona’s high-profile immigration enforcement effort, known popularly as S.B. 1070. Arizona’s law is simply the tip of the iceberg. State legislatures have passed immigration enforcement laws over the last few years at breakneck speed, and, generally speaking, have attempted…

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crashing-stock

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Misconceptions About Lehman Brothers’ Bankruptcy and the Role Derivatives Played

by  Kimberly Summe  

On November 4, 2011, Lehman Brothers’ creditors voted on Lehman Brothers’ liquidation plan, with approval from the bankruptcy court to follow on December 6, 2011. In the three years since the bankruptcy of Lehman Brothers, which was the largest bankruptcy filing in U.S. history, Congress enacted the Dodd-Frank Act to prevent the failure of another…

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arab-spring_0

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Constitutions as Peace Treaties

A Cautionary Tale for the Arab Spring
by  Allen S. Weiner  

The December 2010 self-immolation of 26-year-old Tunisian Mohamed Bouazizi, a desperate response to the debilitating lack of economic opportunities for Tunisia’s youth and the pervasive sense of humiliation engendered by the state’s corrupt and degrading treatment of its citizens, tapped into deep popular frustration in Tunisia and throughout the Middle East. It sparked a series…

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holding-prison-bars

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California’s De Facto Sentencing Commissions

by  Robert Weisberg  

The concept of a sentencing commission as a mechanism for governance of a jurisdiction’s criminal justice system has achieved great prominence in recent years and been the subject of much important commentary. In light of California’s recent passage of A.B. 109, legislation that drastically overhauls the state’s sentencing and correctional systems, now is an ideal…

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