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Volume 65, Issue 1


Removal as a Political Question

by  Aziz Z. Huq

When should courts be responsible for designing federal administrative agencies? In Free Enterprise Fund v. Public Company Accounting Oversight Board, the Supreme Court invalidated one specific mechanism that Congress employs to insulate agencies from presidential control. Lower federal courts have discerned wider implications in the decision’s linkage of presidential power to remove agency officials with democratic accountability. Applied robustly, the Free Enterprise…


Putting Desert in its Place

by  Christopher Slobogin & Lauren Brinkley-Rubinstein

Based on an impressive array of studies, Paul Robinson and his coauthors have developed a new theory of criminal justice, which they call “empirical desert.” The theory asserts that, because people are more likely to be compliant with a legal regime that is perceived to be morally credible, a criminal justice system that tracks empirically derived lay views about…


A Clinic’s Place in the Supreme Court Bar

by  Jeffrey L. Fisher

The past several years have witnessed the emergence of a new phenomenon: clinics in law schools that litigate cases in the Supreme Court. Although some commentators have written about the pedagogical goals and benefits of such clinics, no one yet has written about their public interest mission. This Article takes up that task. It begins by empirically testing, for…


Counterfactual Contradictions

Interpretive Error in the Analysis of AEDPA
by  Amy Knight Burns

Courts routinely engage in counterfactual analysis—considering what might have been, had things been different—in a variety of legal contexts (such as determining causation for tort claims and establishing damages). But in the last two Terms, the Supreme Court has issued several opinions restricting the use of counterfactual reasoning in the context of federal habeas corpus review of state criminal convictions…