Year: 2018
You are Not Cordially Invited: How Universities Maintain First Amendment Rights and Safety in the Midst of Controversial On-Campus Speakers
Alyson R. Hamby
Against a backdrop of national political turmoil, universities have experienced volatile reactions from their student bodies and outsiders in protest of the inflammatory speakers that schools host on their campuses. This Note discusses the tension between First Amendment protections and tort liability in the context of higher education. Specifically, it focuses on the interplay between…
Dec 2018
Untangling Horne; Resuscitating Nollan
Mark Kelman
Not atypically, the Supreme Court in Horne interprets the canonical Nollan narrowly as a case about developer exactions. Viewed that way, Nollan does not speak to the issue in Horne: the raisins that the government took from the owners were not surrendered in exchange for explicit permission to engage in an activity the government either…
Dec 2018
Wrongful Termi(gay)tion: A Comparative Analysis of Employment Non-Discrimination Laws and LGBTQ+ Workplace Protections in South Africa and the United States
Jared Ham, B.A., Cornell University, 2015; J.D., Cornell Law School, 2019
Every American deserves the freedom and opportunity to dream the same dreams, chase the same ambitions, and have the same shot at success[.] A growing number of Americans recognize that their LGBT[Q+] family members, friends, and neighbors deserve to be treated like everyone else in the United States. Yet today in America, in the majority…
Nov 2018
Making State Civil Procedure
Zachary D. Clopton
State courts matter. Not only do state courts handle more than sixty times the number of civil cases as federal courts, but they also represent an important bulwark against the effects of federal procedural retrenchment. Yet state courts and state procedure are notably absent from the scholarly discourse. In order to evaluate state procedure—and in…
Nov 2018
Will Delaware be Different? An Empirical Study of TC Heartland and the Shift to Defendant Choice of Venue
Ofer Eldar, Associate Professor, Duke University School of Law; Research Fellow, Duke Innovation & Entrepreneurship Initiative.
Neel U. Sukhatme, Associate Professor, Georgetown University Law Center; Affiliated Faculty, Georgetown McCourt School of Public Policy.
Why do some venues evolve into litigation havens while others do not? Venues might compete for litigation for various reasons, like enhancing their judges’ prestige and increasing revenues for the local bar. This competition is framed by the party that chooses the venue. Whether plaintiffs or defendants primarily choose venue is crucial because, we argue,…
Nov 2018
Remote Control: Treaty Requirements for Regulatory Procedures
Paul Mertenskötter & Richard B. Stewart
Modern trade agreements have come to include many and varied obligations for domestic regulation and administration. These treaty-based commitments aim primarily to improve the freedom of firms to operate in the global economy by aligning the ways in which governments regulate markets and private actors engage governments through administrative law. They therefore strike at the…
Nov 2018
Don’t Take Me Out to That Ballpark: State Action, Government Speech, and Chief Wahoo After Matal
Robert H. Hendricks
Close your eyes and imagine yourself driving to a concert. On the way, you pass a car bearing a license plate with the image of a Confederate flag. You pause, and ask . . . Did the state approve that license plate? Does the state endorse the use of the Confederate flag? You keep driving….
Sep 2018
A Jury of Your [Redacted]: The Rise and Implications of Anonymous Juries
Leonardo Mangat
Since their relatively recent beginnings in 1977, anony- mous juries have been used across a litany of cases: organ- ized crime, terrorism, murder, sports scandals, police killings, and even political corruption. And their use is on the rise. An anonymous jury is a type of jury that a court may empanel in a criminal trial;…
Sep 2018
Preferencing Educational Choice: The Constitutional Limits
Derek W. Black
Rapidly expanding charter and voucher programs are es tablishing a new education paradigm in which access to tradi tional public schools is no longer guaranteed. In some areas, charter and voucher programs are on a trqjectory to phase out traditional public schools altogether. This Article argues that this trend and its effects violate the constitutional…
Sep 2018
Justiciability, Federalism, and the Administrative State
Zachary D. Clopton
Article III provides that the judicial power of the United States extends to certain justiciable cases and controversies. So if a plaintiff bringing a federal claim lacks constitutional standing or her dispute is moot under Article III, then a federal court should dismiss. But this dismissal need not end the story. This Article suggests a…
Sep 2018
The End of Bargaining in the Digital Age
Saul Levmore & Frank Fagan
Bargaining is a fundamental characteristic of many markets and legal disputes, but it can be a source of inefficiency. Buyers often waste resources by searching for information about past prices, where a seller already holds that information. A second—and novel—source of social loss is that some buyers will avoid otherwise beneficial bargains and sellers with…
Sep 2018
Too Big to Supervise: The Rise of Financial Conglomerates and the Decline of Discretionary Oversight in Banking
Lev Menand
The authority of government officials to define and elimi- nate “unsafe and unsound” banking practices is one of the oldest and broadest powers in U.S. banking law. But this authority has been neglected in the recent literature, in part because of a movement in the 1990s to convert many supervisory judgments about “safety and soundness”…
Sep 2018
Honesty Without Truth: Lies, Accuracy, and the Criminal Justice Process
Lisa Kern Griffin, Candace M. Carroll and Leonard B. Simon Professor of Law, Duke University School of Law.
Focusing on “lying” is a natural response to uncertainty but too narrow of a concern. Honesty and truth are not the same thing and conflating them can actually inhibit accuracy. In several settings across investigations and trials, the criminal justice system elevates compliant statements, misguided beliefs, and confident opinions while excluding more complex evidence. Error…
Sep 2018
The Curious Case of Wellbutrin: How the Third Circuit Mistook Itself for the Supreme Court
Michael A. Carrier
FTC v. Actavis11. 570 U.S. 136 (2013). was one of the most important antitrust cases of the modern era. In one fell swoop, the Supreme Court ensconced antitrust’s role in analyzing settlements by which brand firms pay generics to delay entering the market. The Court underscored the harms presented by large and unjustified payments and…
Aug 2018
Prioritizing Privacy in the Courts and Beyond
Babette Boliek, Associate Professor of Law at Pepperdine University School of Law, J.D. Columbia University School of Law, Ph.D. Economics University of California, Davis.
Big data has affected American life and business in a variety of ways—inspiring both technological development and industrial change. However, the legal protections for a person’s right to his or her own personal information have not matched the growth in the collection and aggregation of data. These legal shortcomings are exacerbated when third party privacy interests…
Jul 2018
“Mob-Legislating”: JASTA’s Addition to the Terrorism Exception to Foreign Sovereign Immunity
Rachael E. Hancock
On September 28, 2016, a politically divided United States Senate overrode President Barack Obama’s veto for the first and only time in a particularly decisive vote: 97–1.11. Mohammed Cherkaoui, The U.S. JASTA: An Asset or a Liability for America Abroad?, AL JAZEERA (Dec. 28, 2016, 13:38 Mecca), … Continue reading The joint effort was the culmination of a ten-year…
Jul 2018
Antitrust and the Design of Production
Herbert Hovenkamp, James G. Dinan University Professor, Penn Law and Wharton Business, University of Pennsylvania
Both economics and antitrust policy have traditionally distinguished “production” from “distribution.” The former is concerned with how products are designed and built, the latter with how they are placed into the hands of consumers. Nothing in the language of the antitrust laws suggests much concern with production as such. Although courts do not view it…
Jul 2018
What is Discriminatory Intent?
Aziz Z. Huq, Frank and Bernice J. Greenberg Professor of Law, University of Chicago Law School.
The Constitution’s protection of racial and religious groups is organized around the concept of discriminatory intent. But the Supreme Court has never provided a crisp, single definition of ‘discriminatory intent’ that applies across different in stitutions and public policy contexts. Instead, current jurisprudence tacks among numerous, competing conceptions of unconstitutional intent. Amplifying the doctrine’s complexity, the Court…
Jul 2018
What Juries Really Think: Practical Guidance for Trial Lawyers
Amy J. St. Eve, United States District Judge, United States District Court for the Northern District of Illinois; Adjunct Professor, Northwestern Law School.
Gretchen Scavo, Learning & Development Lead—Disputes, Winston & Strawn LLP. Ms. Scavo previously clerked for Judge St. Eve and was formerly a Partner at Winston & Strawn LLP.
What do juries really think about lawyers? What makes jurors tick? What do lawyers do that irritates jurors? What can lawyers do better in the courtroom from the jury’s perspective? These are the questions at the heart of this article, which provides useful insight gleaned from more than 500 jurors who served in federal district…
Mar 2018
The Attorney‑Client Privilege, Client Confessions and Wrongful Convictions: Immunity as a Statutory Solution
Richard E. Myers II, Henry Brandis Distinguished Professor of Law, University of North Carolina School of Law, rmyers@email.unc.edu.
Attorneys face a serious personal dilemma when a client confesses that he or she committed the crime for which someone else has been wrongfully convicted. If they do nothing, a wrongful conviction stands. If they come forward, their client faces the prospect of a new criminal conviction. Professional ethics require them to maintain all privileges…
Jan 2018