Print Issues

Volume 61, Issue 3


The Functions of Standing

by  Heather Elliott

The doctrine of standing is said to vindicate the separation of powers guaranteed by the structure of the Constitution. But “separation of powers” is not monolithic, and the Supreme Court has used standing doctrine to promote at least three separation-of-powers functions for the courts: (1) hearing only cases possessing sufficient concrete adversity to make them…


The Myth of the Generalist Judge

by  Edward K. Cheng

Despite the frequent rhetoric celebrating the generalist judge, do judges really practice the generalist ideal? This Article empirically tests this question by examining opinion assignments in the federal courts of appeals from 1995-2005. It reveals that opinion specialization is a regular part of circuit court practice, and that a significant number of judges indeed specialize…


Soft Law

Lessons from Congressional Practice
by  Jacob E. Gersen & Eric A. Posner

Soft law consists of rules issued by lawmaking bodies that do not comply with procedural formalities necessary to give the rules legal status yet nonetheless influence the behavior of other lawmaking bodies and of the public. Soft law has been much discussed in the literatures on international law, constitutional law, and administrative law, yet congressional…


Legislative Threats

by  Guy Halfteck

This Article introduces a theory of legislative threats that not only pierces the fundamental construction of the legal system as a social regulatory institution but, more fundamentally, shows that the conventional wisdom on the role of the legal system in achieving and maintaining social order cannot explain how modern social control actually works. Contrary to…


Punitive Damages, Remunerated Research, and the Legal Profession

by  Shireen A. Barday

A sociology professor is sitting in his office one day when he receives an unsolicited call from a representative of a large corporation facing a devastating punitive damages award. The caller says that the corporation is "exploring . . . whether it's feasible to get something published in a respectable academic journal, talking about what…


The Right of Confrontation, Ongoing Emergencies, and the Violent-Perpetrator-at-Large Problem

by  Scott G. Stewart

Recent judicial and scholarly treatment of the Confrontation Clause pays remarkably little attention to confrontation's purposes. This would not be particularly problematic if the confrontation right reduced to a mechanical rule. If, for example, the clause meant simply that out-of-court statements are inadmissible at trial whenever the declarant is not on the stand and subject…