Law Commons^™

Strategic Globalization: International Law As An Extension Of Domestic Political Conflict, Jide Nzelibe

Northwestern University Law Review

No abstract provided.

Diversifying The Federal Bench: Is Universal Legitimacy For The U.S. Justice System Possible?, Nancy Scherer

Northwestern University Law Review

No abstract provided.

Realism About Judges, Richard A. Posner

Northwestern University Law Review

No abstract provided.

Beyond Principal-Agent Theories: Law And The Judicial Hierarchy, Pauline T. Kim

Northwestern University Law Review

No abstract provided.

Agency Rulemaking And Political Transitions, Anne Joseph O'Connell

Northwestern University Law Review

No abstract provided.

Foreword: Political Science And Law, Nick Gamse, Stephanie Kissel Leiter

Northwestern University Law Review

No abstract provided.

Sox On Fish: A New Harm Of Overcriminalization, Todd Haugh

NULR Online

No abstract provided.

Continuing The Constitutional Dialogue: A Discussion On Justice Stevens's Establishment Clause And Free Exercise Jurisprudence, Alan Brownstein

Northwestern University Law Review

No abstract provided.

A Fixture On A Changing Court: Justice Stevens And The Establishment Clause, Erwin Chemerinsky

Northwestern University Law Review

No abstract provided.

Behavioral Law And Economics: Its Origins, Fatal Flaws, And Implications For Liberty, Joshua D. Wright, Douglas H. Ginsburg

Northwestern University Law Review

No abstract provided.

Erie's International Effect, Michael Steven Green

Northwestern University Law Review

To what extent does the Erie doctrine apply in an international context? In his article When Erie Goes International, Professor Childress argues that a federal court choosing between state law and the law of a foreign nation should often (or perhaps always) ignore Klaxon Co. v. Stentor Electric Manufacturing Co. and use federal choice of law rules rather than the rules of the state where the federal court is located. In this Essay, I have three points to make in response. The first is that Childress’s article, even if successful, leaves the bulk of the Erie doctrine unchanged in …

The Contraception Mandate, Caroline Mala Corbin

Northwestern University Law Review

Under the new health care regime, health insurance plans must cover contraception. While religious employers are exempt from this requirement, religiously affiliated employers are not. Several have sued, claiming that the “contraception mandate” violates the Free Exercise Clause, the Free Speech Clause, and the Religious Freedom Restoration Act. This Essay explains why the contraception mandate violates none of them.

Reviving The Privacy Protection Act Of 1980, Elizabeth B. Uzelac

Northwestern University Law Review

The federal privacy legislative scheme is composed of a fragmented patchwork of aging sector-specific statutes—many enacted prior to the advent of the home computer—that supplement the Fourth Amendment to regulate government access to information. The Privacy Protection Act of 1980 is one such statute, though few understand or utilize its protections. The Act prohibits law enforcement officials from searching for or seizing information from people who disseminate information to the public, such as reporters. Where it applies, the Act requires law enforcement officials to instead rely on compliance with a subpoena or the target’s voluntary cooperation to gain access to …

Prevention, Not Prejudice: The Role Of Federal Guidelines In Hiv-Criminalization Reform, Sarah J. Newman

Northwestern University Law Review

Thirty-four states and two U.S. territories have criminal statutes that specifically impose criminal liability for HIV transmission, exposure, or nondisclosure. With possible sentences ranging up to thirty years, these statutes have even provided the basis for convicting HIV positive individuals who never actually transmitted the virus. To address the unreasonable prosecutions of these individuals, Representative Barbara Lee of California introduced the Repeal Existing Policies that Encourage and Allow Legal HIV Discrimination Act (REPEAL Act) to the U.S. House of Representatives on September 23, 2011. If passed, the REPEAL Act would require a systematic review of these statutes and the development …

Racketeering After Morrison: Extraterritorial Application Of Civil Rico, Daniel Hoppe

Northwestern University Law Review

In Morrison v. National Australia Bank Ltd., the Supreme Court set forth a framework to identify the extraterritorial reach of a federal statute. The Supreme Court required that a statute demonstrate congressional intent to apply to extraterritorial conduct. Under this framework, federal courts have found that civil RICO does not apply to extraterritorial conduct. However, the courts have been inconsistent in their analysis of RICO under Morrison. Some courts have found that RICO does not apply to extraterritorial enterprises while others have found that RICO does not apply to extraterritorial conduct. But the courts have been consistent in …

The Myth Of A Value-Free Injury Law: Constitutive Injury Law As A Cultural Battleground, Michael L. Rustad

Northwestern University Law Review

No abstract provided.

An Fda For Financial Innovation: Applying The Insurable Interest Doctrine To Twenty-First-Century Financial Markets, Eric A. Posner, E. Glen Weyl

Northwestern University Law Review

The financial crisis of 2008 was caused in part by speculative investment in complex derivatives. In enacting the Dodd–Frank Act, Congress sought to address the problem of speculative investment, but it merely transferred that authority to various agencies, which have not yet found a solution. We propose that when firms invent new financial products, they be forbidden to sell them until they receive approval from a government agency designed along the lines of the FDA, which screens pharmaceutical innovations. The agency would approve financial products if they satisfy a test for social utility that focuses on whether the product will …

The Upside-Down Inequitable Conduct Defense, Tun-Jen Chiang

Northwestern University Law Review

“Inequitable conduct” is a patent law doctrine that renders a patent unenforceable when the patentee is found to have acted improperly before the U.S. Patent and Trademark Office. It is widely reviled and frequently criticized for being draconian: the Federal Circuit has famously called the doctrine an “absolute plague” that terrorizes patent owners. Responding to the concern about overdeterrence, the Federal Circuit has repeatedly narrowed the doctrine.

This Article takes a different perspective. The conventional wisdom is correct enough in arguing that the inequitable conduct doctrine sometimes produces overdeterrence. What has been overlooked, however, is the fact that the doctrine …

The Meaning Of The Seventeenth Amendment And A Century Of State Defiance, Zachary D. Clopton, Steven E. Art

Northwestern University Law Review

Nearly a century ago, the Seventeenth Amendment to the U.S. Constitution worked a substantial change in American government, dictating that the people should elect their senators by popular vote. Despite its significance, there has been little written about what the Amendment means or how it works. This Article provides a comprehensive interpretation of the Seventeenth Amendment based on the text of the Amendment and a variety of other sources: historical and textual antecedents, relevant Supreme Court decisions, the complete debates in Congress, and the social and political factors that led to this new constitutional provision. Among other things, this analysis …

The Chief Justice, The Appointment Of Inferior Officers, And The "Court Of Law" Requirement, James E. Pfander

Northwestern University Law Review

In addition to his judicial duties, the Chief Justice presides over a sprawling judicial bureaucracy. Each year, the Chief fills positions within that bureaucracy, designating Article III judges to various specialty courts and appointing such officers as the director of the Administrative Office of the U.S. Courts. Although critics worry that the Chief may use his appointment role to shape Third Branch policy unduly, scholars view the role as constitutionally benign. This Article questions the Chief’s role. The Constitution authorizes Congress to vest the appointment of inferior officers in the “courts of law” but not the Chief Justice. History teaches …

Contested Shore: Property Rights In Reclaimed Land And The Battle For Streeterville, Joseph D. Kearney, Thomas W. Merrill

Northwestern University Law Review

Land reclaimed from navigable waters is a resource uniquely susceptible to conflict. The multiple reasons for this include traditional hostility to interference with navigable waterways and the weakness of rights in submerged land. In Illinois, title to land reclaimed from Lake Michigan was further clouded by a shift in judicial understanding in the late nineteenth century about who owned the submerged land, starting with an assumption of private ownership but eventually embracing state ownership. The potential for such legal uncertainty to produce conflict is vividly illustrated by the history of the area of Chicago known as Streeterville, the area of …

Cracking Open The Classroom Door: Developing A First Amendment Standard For Curricular Speech, Nicholas K. Tygesson

Northwestern University Law Review

Around this country, courts have found that the discharge of public school teachers for their classroom speech does not implicate the First Amendment. Others have protected this speech, but only by importing analytical approaches from other areas of law ill suited to the unique interests at play in America’s public schools. The resulting patchwork of doctrinal approaches provides little clarity for courts and only illusory protection for teachers. This Note will start from scratch, examining the first principles at play in public school classrooms and tailoring a First Amendment approach to respect the needs of government, teachers, and students. When …

Betting On The Upside: Why Affirming River Road Favors Distressed Debt Speculators Over The Rehabilitation Of Businesses, Julia L. Onorato

Northwestern University Law Review

The Chapter 11 bankruptcy process demands a careful balance between protecting the creditors’ rights to be repaid and allowing a failing entity the ability to restructure. The Supreme Court in RadLAX Gateway Hotel affirmed the Seventh Circuit’s holding in River Road and interpreted the Bankruptcy Code in a way that improperly shifts this balance towards the most senior creditors at the expense of business. This Note will analyze the circuit disagreement over the cramdown provision in the Bankruptcy Code and the Supreme Court’s ultimate resolution. It will argue that in light of recent trends in the credit markets - including …

Jury Certification Of Federal Securities Fraud Class Actions, Thomas Kayes

Northwestern University Law Review

The rough equivalence of certification and ultimate outcome is class action dogma. If certification is granted, then the plaintiff “wins” by settlement because the risk of incurring class-wide liability by going to trial is too great. If certification is denied, the defendant “wins” because the case may not be worth litigating without the possibility of a class-wide recovery. This Note is about where the dogma is wrong. There are now cases where a denial of certification, just like a grant, presents to the defendant the risk of incurring class-wide liability at trial. This is because those cases are capable of …

A Fresh Look At Tests For Nonliteral Copyright Infringement, Pamela Samuelson

Northwestern University Law Review

Determining whether a copyright has been infringed is often straightforward in cases involving verbatim copying or slavish imitation. But when there are no literal similarities between the works at issue, ruling on infringement claims becomes more difficult. The Second and Ninth Circuits have developed five similar yet distinct tests for judging nonliteral copyright infringement. This Essay argues that each of these tests is flawed and that courts have generally failed to provide clear guidance about which test to apply in which kinds of cases.

This Essay offers seven specific strategies to improve the analysis of nonliteral infringements. Courts should do …

A Typology Of Judging Styles, Corey Rayburn Yung

Northwestern University Law Review

This Article calls into question the fundamental premises of models of judicial decisionmaking utilized by legal and political science scholars. In the place of the predominant theories, I offer a new approach to understanding judicial behavior which recognizes judicial heterogeneity, multidimensional behavior, and interconnectedness among judges at different levels within the judiciary. The study utilizes a unique dataset of over 30,000 judicial votes from eleven courts of appeals in 2008, yielding statistically independent measures for judicial activism, ideology, independence, and partisanship. Based upon those four metrics, statistical cluster analysis is used to identify nine statistically distinct judging styles: Trailblazing, Consensus …

Public Regulation Of Private Enforcement: Empirical Analysis Of Doj Oversight Of Qui Tam Litigation Under The False Claims Act, David Freeman Engstrom

Northwestern University Law Review

In recent years, a growing chorus of commentators has called on Congress to vest agencies with litigation “gatekeeper” authority across a range of regulatory areas, from civil rights and antitrust to financial and securities regulation. Agencies, it is said, can rationalize private enforcement regimes through the power to evaluate lawsuits on a case-bycase basis, blocking bad cases, aiding good ones, and otherwise husbanding private enforcement capacity in ways that conserve scarce public resources for other uses. Yet there exists strikingly little theory or evidence on how agency gatekeeper authority might work in practice. This Article begins to fill that gap …

Originalism And The Ratification Of The Fourteenth Amendment, Thomas B. Colby

Northwestern University Law Review

Originalists have traditionally based the normative case for originalism primarily on principles of popular sovereignty: the Constitution owes its legitimacy as higher law to the fact that it was ratified by the American people through a supermajoritarian process. As such, it must be interpreted according to the original meaning that it had at the time of ratification. To give it another meaning today is to allow judges to enforce a legal rule that was never actually embraced and enacted by the people. Whatever the merits of this argument in general, it faces particular hurdles when applied to the Fourteenth Amendment. …

Agency Adjudication And Judicial Nondelegation: An Article Iii Canon, Mila Sohoni

Northwestern University Law Review

The rules governing judicial review of adjudication by federal agencies are insensitive to a critical separation of powers principle. Article III jurisprudence requires different treatment of agency adjudication depending on whether the agency is adjudicating a “private right” or a “public right.” When agencies adjudicate private rights, review of the agency adjudication must be available to an Article III court on a direct appellate basis. In contrast, Article III jurisprudence does not require review to an Article III court on a direct appellate basis of agency adjudications of purely public rights. That means that federal courts reviewing agency adjudications of …

Regulating Cyber-Security, Nathan Alexander Sales

Northwestern University Law Review

The conventional wisdom is that this country’s privately owned critical infrastructure—banks, telecommunications networks, the power grid, and so on—is vulnerable to catastrophic cyber-attacks. The existing academic literature does not adequately grapple with this problem, however, because it conceives of cyber-security in unduly narrow terms: most scholars understand cyber-attacks as a problem of either the criminal law or the law of armed conflict. Cyber-security scholarship need not run in such established channels. This Article argues that, rather than thinking of private companies merely as potential victims of cyber-crimes or as possible targets in cyber-conflicts, we should think of them in administrative …