Law Commons^™

Fantasyscotus: Crowdsourcing A Prediction Market For The Supreme Court, Josh Blackman, Adam Aft, Corey Carpenter

Northwestern Journal of Technology and Intellectual Property

Every year the Supreme Court of the United States captivates the minds and curiosity of millions of Americans—yet the inner-workings of the Court are not fully transparent. The Court, without explanation, decides only the cases it wishes. They deliberate and assign authorship in private. The Justices hear oral arguments, and without notice, issue an opinion months later. They sometimes offer enigmatic clues during oral arguments through their questions. Between arguments and the day the Court issues an opinion, the outcome of a case is essentially a mystery. Sometimes the outcome falls along predictable lines; other times the outcome is a …

Claiming Nanotechnology: Improving Uspto Efforts At Classification Of Emerging Nano-Enabled Pharmaceutical Technologies, Jordan Paradise

Northwestern Journal of Technology and Intellectual Property

A constant theme weaving through the history of science, technology, and medicine is that the law consistently lags behind innovation. By the time we understand the science and technology involved, there is already another more advanced and complex product in the pipeline or entering the market. One area where this is proving particularly acute is nanotechnology. Nanotechnology and nanoscience have facilitated breakthroughs in the pharmaceutical and medical device realms, enabling cutting-edge treatments. Not surprisingly, innovations at the intersection of nanotechnology and medicine have inundated the United States Patent and Trademark Office (USPTO) with patent applications.

The USPTO has implemented a …

The End Of "One Hand": The Egyptian Constitutional Declaration And The Rift Between The "People" And The Supreme Council Of The Armed Forces, Kristen A. Stilt

Faculty Working Papers

By some point in the fall of 2011, Egyptians in large numbers no longer viewed the Supreme Council of the Armed Forces (SCAF) as the guardian of the revolution and even considered it the revolution's antagonist. "The army and the people are one" was a common slogan in the early days following Mubarak's ouster on February 11, 2011, but the situation had changed dramatically by the landmark date of October 9, when the military used violence against its own citizens, killing approximately twenty-five Christians at a protest outside Maspero, the headquarters of the Egyptian state television. Violence against protestors continued …

Execution In Virginia, 1859: The Trials Of Green And Copeland, Steven Lubet

Faculty Working Papers

This essay tells the story of Shields Green and John Copeland, two black men who joined John Brown's raid on Harper's Ferry. Along with Brown and several others, Green and Copeland were taken prisoner in the aftermath of the failed insurrection, and they were brought to trial in nearby Charlestown on charges of murder and treason. Unlike Brown, who was treated respectfully by his captors, Green and Copeland were handled roughly. Copeland in particular was subjected to a harsh interrogation that was criticized even by pro-slavery Democrats in the North. The black prisoners did, however, have the benefit of a …

Religion And The Equal Protection Clause, Steven G. Calabresi, Abe Salander

Faculty Working Papers

This article argues that state action that discriminates on the basis of religion is unconstitutional under the Equal Protection Doctrine even if it does not violate the Establishment Clause or the Free Exercise Clause as incorporated by the Fourteenth Amendment. State action that discriminates on the basis of religion should be subject to strict scrutiny and should almost always be held unconstitutional. We thus challenge the Supreme Court's recent decision in Christian Legal Society v. Martinez in which a 5 to 4 majority of the Court wrongly allowed a California state school to discriminate against a Christian Legal Society chapter …

A Tort Statute, With Aliens And Pirates, Eugene Kontorovich

Faculty Working Papers

The pirates of the Caribbean are back. Not in another fantastical film but in the litigation over the reach of the Alien Tort Statute (ATS). For the first time since they dealt with the legal issues raised by a wave of maritime predation in the Caribbean in the early nineteenth century, Supreme Court justices are seriously discussing piracy. This crime has emerged as the test case for evaluating the major controversies about the reach of the statute -- namely, extraterritorial application and the existence of corporate liability. At oral argument in Kiobel v. Royal Dutch Shell, justices of all persuasions …

Narrative And Drama In The American Trial, Robert P. Burns

Faculty Working Papers

This short essay summarizes an understanding of the trial as a medium in which law is realized or actualized, rather than imposed or enforced. It suggests that we should pay close attention to the actual practices that prevail at trial, its "consciously structured hybrid" of languages and practices, if we want to understand the nature of law.

Bad News For Everybody: Lawson And Kopel On Health Care Reform And Originalism, Andrew M. Koppelman

Faculty Working Papers

Gary Lawson & David Kopel's Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate argues, on the basis of recent research, that the Necessary and Proper Clause incorporates norms from eighteenth-century agency law, administrative law, and corporate law, and that the mandate (and perhaps much else in the U.S. Code, though they are coy about this) violates those norms. The Necessary and Proper Clause, as they understand it, tightly limits the scope of implied powers. These claims are obscure even on their own terms. It is mysterious how we are to know whether the power to impose …

Empirical Studies Of Contract, Zev J. Eigen

Faculty Working Papers

Since the mid 2000s, a cottage industry has slowly blossomed of empirical research dedicated to advancing accounts of contracts "on the books"--accounting for what contracts tend to purportedly obligate signers to do, and contracts "in action"--accounting for how contracting parties tend to behave. This article reviews this literature, which spans several disciplines, most notably law, economics, and management, identifying eight categories of empirical questions in common across all disciplines, highlighting key findings, points of consensus, and noting areas most pressingly in need of additional research.

Originalism And Loving V. Virginia, Steven G. Calabresi, Andrea Matthews

Faculty Working Papers

This article makes an originalist argument in defense of the Supreme Court's holding in Loving v. Virginia that antimiscegenation laws are unconstitutional. This article builds on past work by Professor Michael McConnell defending Brown v. Board of Education on originalist grounds and by Professor Calabresi defending strict scrutiny for gender classifications on originalist grounds. Professor Calabresi's work in this area was defended and praise recently by Slate magazine online. The article shows that Loving v. Virginia is defensible using the public meaning originalism advocated for by Justices Antonin Scalia and Clarence Thomas. This article shows that the issue in Loving …

Soul Of A Woman: The Sex Stereotyping Prohibition At Work, Kimberly A. Yuracko

Faculty Working Papers

In 1989 the Supreme Court in Price Waterhouse v. Hopkins declared that sex stereotyping was a prohibited from of sex discrimination at work. This seemingly simple declaration has been the most important development in sex discrimination jurisprudence since the passage of Title VII. It has been used to extend the Act's coverage and protect groups that were previously excluded. Astonishingly, however, the contours, dimensions and requirements of the prohibition have never been clearly articulated by courts or scholars. In this paper I evaluate four interpretations of what the sex stereotyping prohibition might mean in order to determine what it actually …

Why Mortgage "Formalities" Matter, David A. Dana

Faculty Working Papers

This Article argues that adherence to mortgage formalities regarding foreclosure is valuable for expressive reasons and also as a potential deterrent to future undesirable underwriting and securitization practices. The Article reviews how some courts have in effect written procedural requirements for foreclosure out of the law, and asks why these courts have done so and whether lenders' behavior might have been improved during this housing crisis had the state courts uniformly afforded equal respect to the legal rights of homeowners and those of lenders.

The Penalties For Piracy: An Empirical Study Of National Prosecution Of International Crime, Eugene Kontorovich

Faculty Working Papers

This Article examines the sentences imposed by courts around the world in prosecutions of Somali pirates captured on the high seas. Somali piracy has become perhaps the highest-volume area of international criminal law by national courts. As with other international crimes, international law is silent on the subject of penalties. The large number of parallel prosecutions of offenders from a single international "situation" offers an empirical window into the interactions between international and national law in municipal courts; into factors affecting punishment for international crimes and the hierarchy of international offenses; and of course into potential concerns with the current …

The Multiple Roles Of International Courts And Tribunals: Enforcement, Dispute Settlement, Constitutional And Administrative Review, Karen J. Alter

Faculty Working Papers

This chapter is part of an upcoming interdisciplinary volume on international law and politics. The chapter defines four judicial roles states have delegated to international courts (ICs) and documents the delegation of dispute settlement, administrative review, enforcement and constitutional review jurisdiction to ICs based on a coding of legal instruments defining the jurisdiction of 25 ICs. I show how the design of ICs varies by judicial role and argue that the delegation of multiple roles to ICs helps explain the shift in IC design to include compulsory jurisdiction and access for nonstate actors to initiate litigation. I am interested in …

Monopolies And The Constitution: A History Of Crony Capitalism, Steven G. Calabresi, Larissa Price

Faculty Working Papers

This article explores the right of the people to be free from government granted monopolies or from what we would today call "Crony Capitalism." We trace the constitutional history of this right from Tudor England down to present day state and federal constitutional law. We begin with Darcy v. Allen (also known as the Case of Monopolies decided in 1603) and the Statute of Monopolies of 1624, both of which prohibited English Kings and Queens from granting monopolies. We then show how the American colonists relied on English rights to be free from government granted monopolies during the Revolutionary War …

Justice Stevens, Religious Enthusiast, Andrew M. Koppelman

Faculty Working Papers

It is sometimes alleged that Justice John Paul Stevens is hostile to religion. In fact, however, Justice Stevens espouses a position with religious roots and enthusiastically embraces a distinct conception of religion. This casts doubt on the claim, made in different ways by Eduardo Penalver and Christopher Eisgruber, that the fundamental concern of his religion clause jurisprudence is equality. At least as important to him is protecting religion from corruption by the state.

Stevens's position, in order to be consistent, ought to acknowledge, more forthrightly than he does, that it treats religion as a distinctive human good. Any notion of …

Blaming As A Social Process: The Influence Of Character And Moral Emotion On Blame, Janice Nadler

Faculty Working Papers

For the most part, the law eschews the role of moral character in legal blame. But when we observe an actor who causes harm, legal and psychological blame processes are in tension. Procedures for legal blame assume an assessment of the actor's mental state, and ultimately of responsibility, that is independent of the moral character of the actor. In this paper, I present experimental evidence to suggest that perceptions of intent, foreseeability, and possibly causation can be colored by independent reasons for thinking the actor is a bad person, and are mediated by the experience of negative moral emotion. Our …

Discretion, Delegation, And Defining In The Constitution's Law Of Nations Clause, Eugene Kontorovich

Faculty Working Papers

Never in the nation's history has the scope and meaning of Congress's power to "Define and Punish. . . Offenses Against the Law of Nations" mattered as much. The once obscure power has in recent years been exercised in broad and controversial ways, ranging from civil human rights litigation under the Alien Tort Statue (ATS) to military commissions trials in Guantanamo Bay. Yet it has not yet been recognized that these issues both involve the Offenses Clauses, and indeed raise common constitutional questions.First, can Congress only "Define" offenses that clearly already exist in international law, or does it have discretion …

Convenient Scapegoats: Juvenile Confessions And Exculpatory Dna In Cook County, Il, Joshua A. Tepfer, Craig M. Cooley, Tara Thompson

Faculty Working Papers

In the Winter of 2011-2012, in two different cases known as the Dixmoor Five and the Englewood Four, nine men were exonerated of rapes and murders based on exculpatory post-conviction DNA testing. Seven of these nine men actually confessed to the crime. This article explores these two cases and how the Cook County law enforcement agencies, including the State's Attorney's Office, dealt with the powerful new DNA results.

Respect And Contempt In Constitutional Law, Or, Is Jack Balkin Heartbreaking?, Andrew M. Koppelman

Faculty Working Papers

How many constitutions have we? Part of what we hope for from constitutional law is that we be united, despite our political differences, by a unifying political charter. John Rawls speaks for many when he writes that a well-ordered society "is a society all of whose members accept, and know that the others accept, the same principles (the same conception) of justice."

Jack Balkin argues that we have to give up on the Rawlsian aspiration, and learn to live in a world where, at a fundamental level, our fellow citizens are strange to us. They believe in different principles than …

Adjudicated Juveniles And Post-Conviction Litigation, Joshua A. Tepfer, Laura H. Nirider

Faculty Working Papers

Post-conviction relief is a vital part of the American justice system. By filing post-conviction petitions after the close of direct appeal, defendants can raise claims based on evidence outside the record that was not known or available at the time of trial. One common use of post-conviction relief is to file a claim related to a previously unknown constitutional violation that occurred at trial, such as ineffective assistance of counsel. If a defendant's trial attorney performed ineffectively by failing to call, for instance, an alibi witness, then that omission is unlikely to be reflected in the trial record -- but …

The Chief Or The Court: Article Ii And The Appointment Of Inferior Judicial Officers, James E. Pfander

Faculty Working Papers

Each year, the Chief Justice of the United States makes a number of appointments to offices within the Article III judicial establishment. On its face, such a Chief-based appointment practice seems hard to square with the text of Article II, which provides for the appointment of inferior officers by the "courts of law." Scholars have noted the switch from a court-based to a Chief-based appointment system, but generally regard the Chief's authority as constitutionally benign. This Essay explores the origins of the Constitution's choice of the "courts" as the repository of appointment power. The decision was made against the backdrop …

After The Flood: The Legacy Of The “Surge” Of Federal Immigration Appeals, Stacy Caplow

Northwestern Journal of Law & Social Policy

For many years, the big news in the United States courts of appeal was the skyrocketing immigration caseload. For courts that traditionally had busy immigration dockets, the effect was tsunamic. One of those circuits, the Second, instituted a nonargument calendar that, over the past five years, has enabled the court to regain some control over its swollen docket. While this administrative strategy has rescued the court from drowning, the flow of cases continues, somewhat abated, but with enduring force. This so-called surge had unanticipated consequences extending far beyond court management changes. As a result of their increased exposure to immigration …

Does The Privatization Of Publicly Owned Infrastructure Implicate The Public Trust Doctrine? Illinois Central And The Chicago Parking Meter Concession Agreement, Ivan Kaplan

Northwestern Journal of Law & Social Policy

During the nineteenth century, legislatures proved “excessively generous” in granting railroad corporations property rights in publicly owned, commercially vital municipal streets and harbors. Jacksonian jurists, suspicious of corporate influence, invoked the public trust doctrine to rescind grants of privilege inconsistent with the public interest. In Illinois Central Railroad Co. v. Illinois, the “lodestar” of the modern doctrine, the Supreme Court refused to recognize the Illinois legislature’s authority to convey the submerged lands of the Chicago Harbor to a railroad corporation, a conveyance that empowered a private enterprise to “practically control . . . for its own profit” a publicly …

The Hierarchy That Wasn’T There: Elevating “Usage” To Its Rightful Position For Contracts Governed By The Cisg, William P. Johnson

Northwestern Journal of International Law & Business

Under domestic U.S. sales law, usage of trade is relevant in ascertaining the meaning of an agreement, and it can be used to supplement, qualify, or explain an agreement. However, usage of trade may not be used under domestic U.S. sales law to contradict a written agreement. Moreover, any course of performance or course of dealing between the parties will prevail over inconsistent usage of trade. The United Nations Convention on Contracts for the International Sale of Goods, or CISG, similarly provides for consideration of usage to establish the terms of the agreement between the parties, as well as to …

Cleared For Landing: Airbus, Boeing, And The Wto Dispute Over Subsidies To Large Civil Aircraft, Jeffrey D. Kienstra

Northwestern Journal of International Law & Business

Competition between Airbus and Boeing in the large civil aircraft industry grew contentious as Airbus began to overtake Boeing in its long-held position as the world‘s leading producer of large civil aircraft. Airbus and Boeing had also each embarked on multi-billion dollar investments into the development of new aircraft, further raising the stakes. The United States and European Communities in turn increasingly scrutinized the subsidies provided by their counterpart to its respective aircraft manufacturer. This conflict over subsidies, which had persisted between the United States and European Communities since the inception of Airbus in 1970, reached a head in 2004 …

The Role Of Precedent In Defining Res Judicata In Investor–State Arbitration, Pedro J. Martinez-Fraga, Harout Jack Samra

Northwestern Journal of International Law & Business

As international arbitration, and investment arbitration in particular, becomes more prevalent, the risks of doctrinal fragmentation also increase, in part driven by the disparate treatment of the doctrine of res judicata throughout most jurisdictions, and in the arbitration context. Notwithstanding the general consensus regarding the broad contours of res judicata and its firm position as a principle of international law, there is little agreement regarding how it is to be administered. These developments threaten to undermine the international arbitration system, wresting from it normative legitimacy. The U.S. common law version of res judicata, which is distinct from res judicata as …

Is Canada The New Shangri-La Of Global Securities Class Actions?, Tanya J. Monestier

Northwestern Journal of International Law & Business

There has been significant academic buzz about Silver v. Imax, an Ontario case certifying a global class of shareholders alleging statutory and common law misrepresentation in connection with a secondary market distribution of shares. Although global class actions on a more limited scale have been certified in Canada prior to Imax, it can now be said that global classes have “officially” arrived in Canada. Many predict that the Imax decision means that Ontario will become the new center for the resolution of global securities disputes. This is particularly so after the United States largely relinquished this role in Morrison v. …

Contingent Capital In European Union Bank Restructuring, Christoph K. Henkel, Wulf A. Kaal

Northwestern Journal of International Law & Business

The uncoordinated reorganization and resolution of Systemically Important Financial Institutions in different countries pose many challenges. Contingent capital provides a viable alternative for the efficient restructuring and resolution of failing financial institutions. Contingent Capital provides a mechanism for internalizing banks’ failure costs and helps return distressed financial institutions to solvency. This article offers a comparative perspective on bank resolution and restructuring in the European Union, Switzerland, the United Kingdom and Germany and shows that Contingent Capital could play a substantial role in bank restructuring.

Legislating A Family-Friendly Workplace: Should It Be Done In The United States?, Marianne Delpo Kulow

Northwestern Journal of Law & Social Policy

This Article reviews both domestic and international efforts to legislate a more family-friendly workplace, with an eye toward measuring the impact of these various initiatives and predicting both their future success and the likelihood of more widespread adoption. In particular, the Article reviews federal, state, and international legislative efforts to mandate: paid parental leaves; paid sick days; and flexible work arrangements. The Article then attempts to measure the effectiveness of such legislatively required, family-friendly policies by suggesting ways to measure and to predict the impact of U.S. legislative efforts to reconcile the conflicting responsibilities of work and parenthood. The Article …