Executive Weapons to Combat Infection of the Art Market
Over the years, the executive branch has seized Nazi loot in various ways. The seizure that launched the modern Holocaust-era art movement was that accompanying the civil forfeiture proceeding filed...
View ArticleToward a Reality-Based Constitutional Theory
Despite the alleged triumph of legal realism and the empirical turn of closely related fields such as judicial behavior, a startling number of constitutional theorists continue to approach their work...
View ArticleAmputating the Long Arm of the Law: An Analysis of the U.S. Supreme Court's...
This Article reviews the conduct and effects tests and the Supreme Court‘s decision in Morrison. It then addresses the new transactional rule‘s impact on the application of the Exchange Act‘s...
View ArticleLike Deck Chairs on the Titanic: Why Spectrum Reallocation Won't Avert the...
Skyrocketing mobile data demands caused by increasing adoption of smartphones, tablet computers, and broadband-equipped laptops will soon swamp the capacity of our nation’s wireless networks, a fact...
View ArticleBridging the Great Divide—A Response to Linda Greenhouse and Reva B. Siegel's...
This essay discusses the history of Roe v. Wade as recently addressed by Linda Greenhouse and Reva B. Siegel. Going beyond their assertions, I suggest that an additional, more encompassing inquiry...
View ArticleA Due Process Right to Record the Police
Do citizens have a right to record the actions of law enforcement officers? This topic has been the subject of considerable discussion, and no small degree of litigation, in recent years. The increase...
View ArticleSell’s Conundrums: The Right of Incompetent Defendants to Refuse...
The Supreme Court’s 2003 decision in Sell v. United States declared that situations in which the state is authorized to forcibly medicate a criminal defendant to restore competency to stand trial “may...
View ArticleTo Swear or Not to Swear: Using Foul Language During a Supreme Court Oral...
Swearing is not the first thing that comes to mind when preparing for a Supreme Court oral argument. But for lawyers arguing certain types of cases, it is something they must seriously consider. The...
View ArticleConsidering Lesbian, Gay, Transgender, and Bisexual Nominees for the Federal...
In April 2010, President Barack Obama nominated Edward DuMont to the United States Court of Appeals for the Federal Circuit, while more than one and a half years later the nominee withdrew. The...
View ArticleManagerial Judging and Substantive Law
In this Article, I examine the interface between substantive law and managerial judging. My aim is not to criticize the dominant strain of current scholarship, with its focus on endogenous values in...
View ArticleThe Role of the Judge in Non-Class Settlements
What is the role of the judge in aggregate litigation? That was the question posed to Judge Alvin Hellerstein and several panelists, including myself, at the 2012 Symposium of the Institute of Law and...
View ArticleLegislative Oversight of a Bill of Rights: A Way to Rectify Judicial Activism
The term ―judicial activism has become a common part of modern American political speech, though it remains ambiguous and can often mean many different things. It most commonly applies to judicial...
View ArticleHobby Lobby and the Zero-Sum Game
In a zero-sum game, one person’s gain is another person’s loss. Some claims under the Religious Freedom Restoration Act present such zero-sum circumstances in that easing the claimant’s religious...
View ArticleMoral Panics and Body Cameras
This Commentary uses the lens of "moral panics" to evaluate public support for equipping law enforcement with body cameras as a response and solution to events in Ferguson, Missouri in August 2014....
View ArticleEpilogue: Moral Panics and Body Cameras
This brief follow-up to Moral Panics and Body Cameras comments on in the weeks after that essay was published on the Commentaries website and what those events show about the efficacy of body cameras...
View ArticleA Taxonomy of Discretion: Refining the Legality Debate About Obama's...
With immigration reform stymied in Congress, broad executive action has been President Obama’s signature contribution to American immigration policy. These measures have drawn allegations that the...
View ArticleYoung v. United Parcel Service, Inc.: McDonnell Douglas to the Rescue?
The Pregnancy Discrimination Act of 1978 can be interpreted in two obvious ways: one interpretation requires employers to make reasonable accommodations for pregnant employees, and the other does not...
View ArticleThe Right to a Public Trial and Closing the Courtroom to Disruptive Spectators
The Sixth Amendment to the United States Constitution provides, in part, that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” Like many constitutional...
View ArticleGay Marriage and the Problem of Property
The Supreme Court’s gay marriage decision in Obergefell has been hailed in almost all corners as a milestone in American jurisprudence. From topics as varied as adoption and taxes, a myriad of rights...
View ArticleBill Cosby, the Lustful Disposition Exception, and the Doctrine of Chances
On December 30, 2015, an affidavit of probable cause alleged that William H. Cosby, Jr., Ed.D., a comedian whose storied career spanned decades, committed aggravated indecent sexual assault upon...
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