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Academic

The Legal Workshop

Legal scholarship published in the print editions of the law reviews and law journals of the following law schools: University of Chicago, Stanford, New York University, Cornell, Duke, Georgetown, and Northwestern.
By Law Students

Post Frequency: 6.5/day

Last Entry: April 21, 2017 at 06:21:46

The Rights of Immigrants: An Optimal Contract Framework

Posted on February 15, 2010
It is bedrock policy that the government can treat citizens and noncitizens differently. Virtually no one believes that noncitizens should have the right to vote or to run for office. Many noncitizens?including tourists, business people, and the spouses of certain visa holders?do not even have the right to work or… Read More »

Paying-To-Play in Securities Class Actions: A Look at Lawyers? Campaign Contributions

Posted on February 12, 2010
Congress enacted the Private Securities Litigation Reform Act of 1995 (PSLRA) to reduce plaintiffs? lawyers? influence in securities class actions. The PSLRA?s presumption that the class member with the largest financial interest would be named lead plaintiff was meant to ensure that the class, not a law firm, would be… Read More »

Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights to Keep and Bear Arms and Defend Life

Posted on February 10, 2010
Owning a stun gun or Taser is a crime in seven states and several cities. Carrying irritant sprays, such as pepper spray or Mace, is probably illegal in several jurisdictions. Even possessing irritant sprays at home is illegal in Massachusetts if you?re not a citizen...

Death Ineligibility and Habeas Corpus

Posted on February 08, 2010
The Supreme Court has recently declared several categories of prisoners, such as juvenile and mentally retarded offenders, to be categorically ineligible for capital punishment under the Eighth Amendment. If these ?death ineligible? offenders nonetheless sit on death row with procedurally defective habeas corpus petitions, can the writ be used to… Read More »

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Doctors Who Want Their Medical Malpractice Exculpatory Agreements Enforced Should Use Confidential Contracts

Posted on February 05, 2010
Whether patients should be able to contract out of the malpractice system has been a hotly debated subject in law and economics and health law literature. Advocates of patient choice argue that if the cost of having the option to bring a malpractice suit truly outweighs the benefit to a… Read More »

Rights Clash: How Conflicts Between Gay Rights and Religious Freedoms Challenge the Legal System

Posted on February 03, 2010
That some religious beliefs clash with the gay rights movement is undeniable. When these interests conflict in the form of litigation and both sides adopt the rhetoric of rights, the resulting rights clash challenges the United States legal system?s ability to come to a principled result...

Promoting Civil Rights Through Proactive Policing Reform

Posted on February 01, 2010
Preventing police misconduct often requires changing the department in which it arises, but police departments have proved largely resistant to legal efforts to reform them. A promising federal law, 42 U.S.C. § 14141, permits the Justice Department to sue police departments that are engaged in a ?pattern or practice? of… Read More »

Tracing Basis Through Virtual Spaces

Posted on January 29, 2010
With the rise of virtual worlds and the generation of income with significant real-world value within them, debate has erupted regarding whether or how best to tax such income. A consensus exists for the proposition that those who ?cash out,? i.e., convert virtual wealth to real-world wealth, should be taxed… Read More »

Preemption of Local Regulations Beyond Lozano v. City of Hazleton: Reconciling Local Enforcement with Federal Immigration Policy

Posted on January 27, 2010
In 1986, Congress enacted ?a comprehensive scheme prohibiting the employment of illegal aliens in the United States.? Recently, many municipalities have taken matters into their own hands because of dissatisfaction over federal enforcement of these employment regulations...

Of Christmas Trees and Corpus Christi: Ceremonial Deism and Change in Meaning Over Time

Posted on January 25, 2010
Lately, it seems that the Supreme Court has taken a strong interest in the question whether, and under what circumstances, religious speech and symbolism are constitutionally permissible in government-sponsored settings. Last Term, in Pleasant Grove City v...

Delaware?s Shrinking Half-Life

Posted on January 22, 2010
Corporate law academics have long sought to fully understand the process of state corporate lawmaking. For decades the debate was premised upon strong, ongoing state-to-state competition, with sharp disagreement on the directionality of that competition...

Protecting Them from Themselves: The Persistence of Mutual Benefits Arguments for Sex and Race Inequality

Posted on January 20, 2010
Defenders of sex and race inequality often contend that women and people of color are better off with fewer rights and opportunities. This claim straddles substantive debates that are rarely considered together, linking such seemingly disparate disputes as the struggles over race-based affirmative action, antiabortion laws, and marital rape exemptions...

Ricci v. DeStefano: End of the Line or Just Another Turn on the Disparate Impact Road?

Posted on January 18, 2010
Reports of the death of Title VII?s disparate impact theory of discrimination in the wake of Ricci v. DeStefanomay be exaggerated. Widely praised and widely criticized in the newspapers and the blogosphere, Ricci is the latest, but not the last, chapter in a long-running feud between Congress and the Supreme Court regarding… Read More »

Varieties of New Legal Realism: Can a New World Order Prompt a New Legal Theory?

Posted on January 15, 2010
In 1930, during the Great Depression, Professor Karl Llewellyn declared in the Harvard Law Review that ?ferment? was abroad in the law, proclaiming ?realism? a powerful new scholarly force. In the past year, we have seen our own ferment: the world has shown us the folly of law?s most powerful… Read More »

Fairness, Disability, and Genetic Antidiscrimination

Posted on January 13, 2010
Genetic discrimination is unfair. This observation is, by all accounts, largely uncontroversial. As a result of the Genetic Information Nondiscrimination Act of 2008 (GINA), which took effect in late November, genetic discrimination is also now illegal...

Codified Canons and the Common Law of Interpretation

Posted on January 11, 2010
Statutory construction generally involves rules of thumb that are said to allow readers to draw inferences about the meaning of a particular statute. These ?canons of construction? (also known as maxims of interpretation) guide the methods and sources used in statutory interpretation and are usually deployed according to an interpreter?s… Read More »

The Democracy Canon

Posted on January 06, 2010
In the heat of the 2008 election season?following the new tradition of the 2000 and 2004 elections?candidates, political parties, and others filed new lawsuits practically every day over election law issues. In mid-September 2008, two Ohio controversies garnered national attention...

Claiming Intellectual Property

Posted on January 04, 2010
By writing a series of James Bond novels, Ian Fleming qualified for American copyright protection, pursuant to which works created by others without license and found by courts to be substantially similar to the novels would generally infringe his copyright...

The Constitutional Life of Legislative Instructions in America

Posted on January 01, 2010
Under the Articles of Confederation, state legislatures often formally instructed their federal representatives on particular votes, continuing a practice common in England and the American colonies. This occurred, to some later scholars’ dismay, even after James Madison argued that the Senate was designed to provide “a due sense of national… Read More »

The Reach of State Corporate Law Beyond State Borders: Reflections Upon Federalism

Posted on December 28, 2009
During their first year of law school, students are taught some eternal verities. One of them is that America?s federal system consists of fifty states, each governed only by its own law and not by the law of any other state. Overlying this state law tapestry is a system of… Read More »

Environmental Law as a Legal Field: An Inquiry in Legal Taxonomy

Posted on December 21, 2009
What is environmental law? When we describe a factual pattern, case, or rule as arising within environmental law, what associations do we mean to convey by that designation? What, if anything, unifies environmental law? Is environmental law a legal field, or just an amalgamation of laws arranged under a general… Read More »

Mixed Speech: When Speech Is Both Private and Governmental

Posted on December 18, 2009
Is it constitutional for a state to issue a “Say Yes to Jesus” automobile license plate? May it refuse to issue an “Aryan Nation” license plate? May it deny a “pro-choice” license plate when it has allowed a “pro-life” one? Under current free speech jurisprudence, the answer depends on whether… Read More »

Learning to Live with Unequal Justice: Asylum and the Limits to Consistency

Posted on December 14, 2009
This Article is about consistency in adjudication. I explore why consistency matters, what its determinants are, and whether it can be substantially achieved at a price that is worth paying. This Article is also about the United States asylum adjudication system...

Living Originalism

Posted on December 07, 2009
For the last several decades, the primary divide in American constitutional theory has been between those theorists who label themselves as originalists and those who do not. It is widely understood that the side that…

Beyond the Pro-Consumption Tax Consensus

Posted on December 04, 2009
For many decades in United States tax policy debate, fundamental tax reform was identified primarily with adopting a comprehensive income tax base. In the last ten or so years, it has increasingly come to denote…

Existing Uses and the Limits of Land Use Regulations

Posted on November 30, 2009
Existing uses occupy a special place in property and land use law. A use, once established, is imbued with an expectation that it may continue to exist, even in the face of regulatory change. For…

Preventing Real Takings for Imaginary Purposes: A Post-Kelo Public Use Proposal

Posted on November 27, 2009
By allowing the condemnation of private homes to make way for a “more attractive” private development, the U.S. Supreme Court in Kelo v. City of New London1 roused the fury of the libertarian legal academy and…

An Uncertain Precedent: United States v. Santos and the Possibility of a Legislative Remedy

Posted on November 25, 2009
In 2008 in United States v. Santos, the Supreme Court addressed the meaning of the term “proceeds” as used in 18 U.S.C. § 1956, part of the Money Laundering Control Act. Efrain Santos and a…

Rethinking Bivens: Legitimacy and Constitutional Adjudication

Posted on November 23, 2009
The Supreme Court’s 1971 decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics1 plays a central role in our system of constitutional remedies. Yet critics have long questioned the Bivens Court’s decision…

Internal Poison Pills: Managing the Governance Tension Between Majority and Minority Shareholders with a Novel Financial Instrument

Posted on November 20, 2009
Large corporations harbor dark corners, and these shadows shelter a daunting collection of governance concerns. There are at least three internal governance problems. First, lazy or dishonest managers might use their control of a firm’s…

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