Excessive Speech, Civility Norms, and the Clucking Theorem

by Barak Y. Orbach and Frances R. Sjoberg

The classic free-speech axiom is that the cure for bad speech is more speech. This Article considers the possible social costs of speech, focusing on speech strategies that impede and degrade change, even if the speech […]

Law, Strategy, and Competitive Advantage

by Robert C. Bird

Firms aggressively seek a competitive advantage over rivals. A voluminous body of strategy scholarship has identified numerous sources of competitive advantage. Yet, the notion that law may be a source of […]

Disappearing Parents: Immigration Enforcement and the Child Welfare System

by Nina Rabin

This Article presents original empirical research that documents systemic failures of the federal immigration enforcement and state child welfare systems when immigrant parents in detention and deportation […]

Rethinking the Indefinite Detention of Sex Offenders

by Fredrick E. Vars

Thousands of sex offenders in the United States are being held indefinitely under civil commitment programs. The analysis in this Article suggests that none (or precious few) belong there. Specifically, in a large […]

Baseball’s Accidental Racism: the Draft, African-American Players, and the Law

by Shepherd Bailey and George B. Shepherd

Major League Baseball has recently experienced two puzzling upheavals. First, the number of foreign players has grown, to twenty-eight percent of all players. At the same time, the fraction of African-American […]

Caution on Exhaustion: the Courts’ Misinterpretation of the Idea’s Exhaustion Requirement for Claims Brought by Students Covered by Section 504 of the Rehabilitation Act and the ADA but Not by the Idea […]

by Peter J. Maher

The Individuals with Disabilities Education Act ("IDEA ") expressly allows students with disabilities eligible under the IDEA to bring civil actions against their school districts not only for violations of the IDEA but also for violations of […]

A Right Is Born: Celebrity, Property, and Postmodern Lawmaking

by Mark Bartholomew

This Article challenges the standard account of the creation of the right of publicity. In legal literature, the prevailing narrative is of the right of publicity being intimately linked to the commodification of […]

Inventing Norms

by William Hubbard

Patent law strives to promote the progress of technology by encouraging invention. Traditionally, scholars contend that patent law achieves this goal by creating financial incentives to invent in the form of […]

Remix Without Romance

by Thomas W. Joo

A dominant argument in intellectual property scholarship asserts that technologies such as digital copying empower individuals to participate in the making of culture. Such participation involves individuals appropriating cultural material, “remixing” it with other […]

The Growing Consumer Exposure to Nanotechnology in Everyday Products: Regulating Innovative Technologies in Light of Lessons from the Past

by Katharine A. Van Tassel and Rose H. Goldman

Nanoparticles are very small particles that are engineered using innovative technologies to be one to one hundred nanometers in size. Just how small is small? In comparison, a human hair is 80,000 nanometers […]

The Nature and Nurture of Violence: Early Intervention Services for the Families of Maoa-Low Children as a Means to Reduce Violent Crime and the Costs of Violent Crime

by Jennifer Brooks-Crozier

In 1993, scientist Hans Brunner discovered that several male members of a large Dutch family who exhibited behaviors such as impulsive aggression, arson, and attempted rape possessed a mutant copy of the MAOA gene, the gene that […]

Citizens United and the Ineluctable Question of Corporate Citizenship

by Amy J. Sepinwall

As a result of the Supreme Court's decision in Citizens United, corporations and individuals now enjoy the same rights to spend money on advertisements supporting or opposing candidates for office. Those concerned about the role of money in politics have much to decry about the decision. But the […]

Defending the Rule of Law: Reconceptualizing Guantanamo Habeas Attorneys

by Laurel E. Fletcher with Alexis Kelly & Zulaikha Aziz

An explosive video released in spring 2010, by Elizabeth Cheney, accused the Obama Administration of hiring "terrorist" lawyers to guide national security. The so-called "al Qaeda Seven" had represented or advocated for the rights of […]

Tax Compliance and Norm Formation Under High-Penalty Regimes

by Susan C. Morse

Skepticism about the potential of moral appeals relating to tax compliance for example, as applied to large groups of individual taxpayers outside a wartime context-has resulted in the absence of a theory about how government […]

The Evolving Temporality of Lawmaking

by Andrew J. Wistrich

Conventional wisdom suggests that law is past-oriented. That view always has been incomplete and is no longer as accurate as it once was. In fact, law always has been more future-oriented than is widely […]

(Re)Forming the Jury: Detection and Disinfection of Implicit Juror Bias

by Anna Roberts

This Article investigates whether one of the most intractable problems in trial procedure can be ameliorated through the use of one of the most striking discoveries in recent social science. The intractable problem is selecting a fair jury. Current doctrine fails to address the fact that jurors […]

Apologies as Intellectual Property Remedies: Lessons from China

by Xuan-Thao Nguyen

It is a frequent refrain that "the world is shrinking." In this same vein, the global influence of China is clearly rising. Chinese businesses are becoming more prominent in the global market, and as such, the influence […]

Fail-Safe Federalism and Climate Change: the Case of U.S. and Canadian Forest Policy

by Blake Hudson

Recent research demonstrates the difficulties that federal systems of government may present for international treaty formation, a prime example being legally binding treaties aimed at harnessing global forests to regulate climate change. Some federal constitutions […]

The New Victims of the Old Anti-Catholicism

by Christopher C. Lund

Santayana once said that those who cannot remember the past are condemned to repeat it, the implication being that we can avoid future mistakes by paying better attention to past ones. Perhaps this is so. Or perhaps it is as George […]

Suffering in Silence: Asylum Law and the Concealment of Political Opinion as a Form of Persecution

by Peter J. Smith

In order to be granted asylum in the United States, an applicant has to show that she has suffered persecution, or has a well-founded fear of persecution, on account of race, religion, nationality, membership in a […]

The Ethics of Health Reform: Why We Should Care About Who Is Missing Coverage

by Norman Daniels

I want to bring a somewhat different perspective to the discussion of recent U.S. health reform from the focus of this Symposium. My field is in justice and health policy. I'm not a lawyer, and I'm not going to try to […]

The Framers’ Federalism and the Affordable Care Act

by Steven D. Schwinn

Federalism challenges to the Affordable Care Act ("ACA") are inspired by the relatively recent resurgence in federalism concerns in the Supreme Court's jurisprudence. Thus, ACA opponents seek to leverage the […]

Some Thoughts on Health Care Exchanges: Choice, Defaults, and the Unconnected

by Brendan S. Maher

One feature of the ACA that appealed to observers across the political spectrum was the creation of health insurance "exchanges." Among other things, exchanges are intended to aid consumers in making simple and […]

Human Enhancement and Experimental Research in the Military

by Efthimios Parasidis

For over a century the US. military has conducted and sponsored cutting-edge medical and technological research. While such projects have often resulted in transformative innovations, in a number of instances […]

On Slippery Constitutional Slopes and the Affordable Care Act

by Stewart Jay

The Patient Protection and Affordable Care Act is one of the most significant laws ever passed by Congress. It is aimed at a social problem of the first order, the spiraling costs of health care and the millions of […]

The Affordable Care Act and Tax Policy

by Stephen Utz

The Affordable Care Act fails to coordinate the impact of tax burdens on individuals with the global aim of extending the availability of health care insurance. The price of private health insurance depends in this […]

Access Without Limits? Revisiting Barriers and Boundaries After the Affordable Care Act

by Michael J. DeBoer

In the United States, the understanding of health care and relationships in the health care and health insurance settings has evolved over the last century. In the past, care for one's own health and the relationships between physicians and patients, hospitals and […]

Breaking the Cycle of “Unequal Treatment” with Health Care Reform: Acknowledging and Addressing the Continuation of Racial Bias

by Ruqaiifah Yearby

Since the Civil War access to health care in the United States has been racially unequal. This racially unequal access to health care remains even after the passage of Title VI of the Civil Rights Act of 1964 ("Title VI") […]

Is Marriage for Rich People? A Book Review of Ralph Richard Banks’s Is Marriage for White People?

by Nancy Leong

The rate of marriage for black Americans is lower today than it has been at any time since the end of slavery. Ralph Richard Banks, in Is Marriage for White People?, examines this reality, paying particular attention to the middle class. Banks notes that the condition of black singleness is especially problematic among middle class black […]

The Future of Gun Control Laws Post-McDonald and Heller and the Death of One-Gun-Per-Month Legislation

by Michael J. Habib

In McDonald v. Chicago, the Supreme Court incorporated the Second Amendment individual right to bear arms elucidated in District of Columbia v. Heller, and made the right applicable to state action. […]

Finding New Power in the Wind, the Earth, and the Sun: a Survey of the Regulation of Alternative Energy Generated on American Indian Reservations in the United States and First Nation Reserves in Canada

by Jessica A. R. Hamilton

Investment in renewable energy resources is becoming increasingly essential for the governments of both the United States and Canada as they search for viable alternatives to traditional, and often foreign-controlled […]

Who Decides on Security?

by Aziz Rana

Despite over six decades of reform initiatives, the overwhelming drift of security arrangements in the United States has been toward greater—not less—executive centralization and discretion. This Article explores why efforts to curb […]

Responses Republican Virtue and Expert Discourse: a Response to Professor Rana

by Joseph Margulies with Luke Herrine

In this Article, the authors note their agreement with Professor Rana's historical analysis of a major change in national security discourse and elaborate on their disagreement with his account of the theoretical […]

Who Decides on Liberty?

by Thomas P. Crocker

Whether approached as a matter of executive discretion, judicial role, or individual rights, questions about security are never far removed from questions about liberty. Tradeoffs between liberty and security often seem […]

Constructing the Threat and the Role of the Expert Witness: a Response to Aziz Rana’s Who Decides on Security?

by Wadie E. Said

Aziz Rana's article presents clearly the overlooked but crucial question of "Who Decides on Security?" Namely, is determining who or what groups constitute a threat something that we are capable of making ourselves, or must we […]

The Rise of National Security Secrets

by Sudha Setty

Professor Aziz Rana urges a broad and populist reconsideration of the idea that the administration and military are best positioned to make decisions about national security issues. This Article calls for a rethinking […]

The Pre-NSC Origins of National Security Expertise

by Gregory S. McNeal

America's contemporary security state-a massive bureaucracy staffed with military and civilian experts-is a dominant feature in current debates over national security policy. Few decisions regarding war and diplomacy […]

Confronting the Wizard of Oz: National Security, Expertise, and Secrecy

by David Cole

Aziz Rana's account of the takeover of American national security by experts, and of the public's acceptance of that state of affairs, offers an important and novel perspective on what ails us in national security today. In this Comment, I suggest that while Rana is correct to […]

Popular Constitutional Interpretation

by Michael Serota

This Essay evaluates the theory of popular constitutionalism by exploring the concept of constitutional fidelity and the practical requirements it imposes on the exercise of interpretive authority within […]

Right About Wrongs? A Review of Fried & Fried’s Because It Is Wrong and the Implications of Their Arguments on the Use of Capital Punishment

by William W. Berry III

In their recent book, Because It Is Wrong former solicitor general and Harvard Law professor Charles Fried and his son, Suffolk University philosophy professor Gregory Fried, begin with the principle that morality […]

Uploading Guilt: Adding a Virtual Records Exception to the Federal Rules of Evidence

by Allison L. Pannozzo

The creation of email and social networking websites significantly altered the practice of law. The wealth of information exchanged through emails, and postings on Facebook and MySpace has aided prosecutors, defense attorneys, and […]

Prisons: the New Mental Health System

by Christina Canales

By the middle of the twentieth century, the United States was in crisis: over half a million Americans were in state mental hospitals. Several changes, including the development of effective anti-psychotic medications and increased […]

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