Law Commons^™

A Personal Constitution, Michael Serota

NULR Online

Today’s law school graduates face two disturbing trends in the professional world. Each is well known, but neither is openly discussed in the law school setting. First, lawyers suffer from chronic professional dissatisfaction. Approximately one out of every four lawyers is dissatisfied with her job. Second, this dissatisfaction exacts an extraordinarily high price on lawyers, the legal profession, and society as a whole. Most startling, however, is the fact that the widespread dissatisfaction and the associated mental health-related problems prevalent in the legal profession actually begin in law school.

Rethinking The Order Of Battle In Constitutional Torts: A Reply To John Jeffries, Nancy Leong

NULR Online

The Supreme Court’s decision in Pearson v. Callahan ended an eight-year experiment in the adjudication of qualified immunity claims. That experiment began with Saucier v. Katz, in which the Court held that lower courts mustdecide whether a government officer violated a plaintiff’s constitutional rights before addressing the question of whether the government officer was entitled to immunity. The Court’s rationale for requiring lower courts to first address the merits was the need to clarify constitutional law for the benefit of both government actors (who could then better conform their behavior to constitutional standards) and future plaintiffs (who could then …

Why More Antitrust Immunity For The Media Is A Bad Idea, Maurice E. Stucke, Allen P. Grunes

NULR Online

The U.S. newspaper industry specifically and traditional media industries generally are in transition. In response to declining audiences and advertising revenue, many traditional media firms have laid off journalists and cut back on news. With their financial difficulties, some traditional media firms have called for greater leniency under the federal antitrust laws. Newspaper owners and journalists have called for greater antitrust immunity for joint advertising, joint fees for readership and accessing content online, and joint reporting. Others have called on the Federal Communications Commission (“FCC”) to loosen further its Cross-Ownership Rules. Some politicians have suggested that the federal antitrust agencies …

Mcdonald V. Chicago: Which Standard Of Scrutiny Should Apply To Gun-Control Laws?, Lawrence Rosenthal, Joyce Lee Malcolm

NULR Online

In this debate, Professors Rosenthal and Malcolm debate the standard of scrutiny that the Supreme Court should apply to restrictions on the Second Amendment in the wake of its recent decision, McDonald v. City of Chicago. Professor Rosenthal begins Part I by noting the importance of gun-control laws to police; he considers a lower standard of scrutiny necessary to allow law enforcement officials to protect the community. Turning to the practical consequences of Chicago and Washington, D.C.'s recent gun-control laws, which make owning a gun nearly impossible in those cities, Professor Malcolm argues for a standard of strict scrutiny …

Salazar V. Buono: The Perils Of Piecemeal Adjudication, Lisa Shaw Roy

NULR Online

The recent U.S. Supreme Court decision in Salazar v. Buono, a case involving a Latin cross placed on federal land in the Mojave Desert by the Veterans of Foreign Wars, approaches what many would assume to be the central issue in the case from an oblique. Does the Mojave Desert cross, sitting atop Sunrise Peak in a federal park preserve, violate the Establishment Clause of the First Amendment? Neither Justice Kennedy’s plurality opinion nor any of the concurring or dissenting opinions in Salazar answers that question. Salazar’s complicated web of facts and procedural history precluded the Court from …

Salazar V. Buono And The Future Of The Establishment Clause, Christopher C. Lund

NULR Online

Commentators often complain that Establishment Clause jurisprudence is incoherent and unprincipled. That accusation usually seems overwrought—perhaps we should not expect so much consistency from a Court that decides only the cases that come before it, holds multiple values, operates with continually changing personnel, and gives significant but unquantifiable weight to precedent. Yet of the areas of Establishment Clause litigation, this complaint carries the most force in the context of passive-display cases—cases where the government passively displays a religious symbol, like a cross or a crèche, a Ten Commandments monument, or an illuminated Bible. Here the critics have a point.

Salazar V. Buono: The Cross Between Endorsement And History, Mary Jean Dolan

NULR Online

The striking image of a white cross on stark rock, silhouetted against the desert sky, now symbolizes not only Christianity and, arguably, World War I military sacrifice, but also the equally dramatic, prolonged saga of the Salazar v. Buono litigation. The photos invoke the most recent Supreme Court battle in the legal and cultural war to define religion’s role in the public square. Competing approaches stress either preserving history or avoiding government endorsement of religion; this brief article analyzes a potential new synthesis suggested by Buono.

The original cross war memorial was erected in 1934 by a local group …

Salazar V. Buono: Sacred Symbolism And The Secular State, Ian Bartrum

NULR Online

After oral argument, Salazar v. Buono looked like it might be a dud. As Adam Liptak observed in the New York Times, the Justices spent most of their energy pressing then-Solicitor General Elena Kagan and her opponent, Peter Eliasberg of the ACLU, on the case’s tangled procedural history, and “only Justice Antonin Scalia appeared inclined to reach the Establishment Clause question” that gave rise to the legal controversy. But, in the intervening months, the case has gotten more and more interesting. First, most members of the Court did—in at least some way—reach the substantive merits in the decision; …

Dying For Privacy: Pitting Public Access Against Familial Interests In The Era Of The Internet, Clay Calvert

NULR Online

“I just killed my two kids. . . . I drowned them. . . . They are 2 and 4. . . . I just shot myself. . . . with a gun. . . . Please hurry.”

That was the dying declaration of 21-year-old Julia Murray on February 16, 2010, preserved for all of posterity on a 911 emergency telephone recording and available to anyone and everyone in Florida—from journalists and police to even voyeurs and perverts—under that state’s open records laws. Murray and one of her three children are gone (the second child survived the drowning …

Procreation, Harm, And The Constitution, Carter Dillard

NULR Online

This Essay provides relatively novel answers to two related questions: First, are there moral reasons to limit the sorts of existences it is permissible to bring people into, such that one would be morally prohibited from procreating in certain circumstances? Second, can the state justify a legal prohibition on procreation in those circumstances using that moral reasoning, so that the law would likely be constitutional?

These questions are not new, but my answers to them are and add to the existing literature in several ways. First, I offer a possible resolution to a recent debate among legal scholars regarding what …

The Riddle Underlying Refusal-To-Deal Theory, Michael Jacobs, Alan Devlin

NULR Online

May a dominant firm refuse to share its intellectual property (IP) with its rivals? This question lies at the heart of a highly divisive, international debate concerning the proper application of the antitrust laws. In this short Essay, we consider a profound, yet previously unaddressed, incongruity underlying the controversy. Specifically, why is it that monopolists refuse to share their IP, even at monopoly prices? To resolve this issue, some have recommended compulsory licensing, which would require monopolists to license their IP in certain circumstances. This proposal, however, entails an inescapable contradiction, one rooted in the issue of monopolists’ seemingly inexplicable …

Heterosexuality And Military Service, Zachary A. Kramer

NULR Online

The Kentucky National Guard’s 940th Military Police Company is based in Walton, Kentucky, just south of the Kentucky-Ohio border. In November 2004, in anticipation of its deployment to Iraq, the 940th was mobilized and stationed at Fort Dix, New Jersey. Love was in the air at Fort Dix that fall. While the 940th was preparing for its year of service in Iraq, five couples in the unit got married. Amanda and Todd McCormick were one of those couples. The McCormicks spent their first year of marriage in an active war zone, where their duties included training the Iraqi police force, …

The Intersection Of Constitutional Law And Civil Procedure: Review Of Wholesale Justice—Constitutional Democracy And The Problem Of The Class Action Lawsuit (Part Ii), Douglas G. Smith

NULR Online

In the first portion of this Essay, I reviewed Professor Martin Redish’s theory that the application of Federal Rule of Civil Procedure 23 in modern class action practice is unconstitutional. Professor Redish argues that modern class action procedures violate absent class members’ due process rights by sweeping large numbers of individual plaintiffs into litigation without their explicit consent. I then set forth Professor Redish’s proposals for reform, including increased scrutiny of class actions to weed out “faux” class actions that benefit lawyers but not class members, abandonment of the opt-out procedure under Rule 23 in favor of an opt-in procedure …

The Intersection Of Constitutional Law And Civil Procedure: Review Of Wholesale Justice—Constitutional Democracy And The Problem Of The Class Action Lawsuit, Douglas G. Smith

NULR Online

Much ink has been spilled over the class action device. Commentators have thoroughly analyzed both the plain language and intent behind the federal rules authorizing the aggregation of claims in a single lawsuit as well as the policy implications of the class action in both theory and practice. Seldom does a work break new ground in a field that has been plowed as often as that of class actions. Martin Redish’s Wholesale Justice: Constitutional Democracy and the Problem of the Class Action Lawsuit is the rare exception.

In Wholesale Justice, Professor Redish provides a thorough analysis of the constitutional …

Mending Holes In The Rule Of (Administrative) Law, Evan J. Criddle

NULR Online

The past decade has witnessed a surge of interest in Carl Schmitt’s controversial assertion that the rule of law inevitably bends under the demands of state necessity during national emergencies. According to Schmitt, legal norms cannot constrain sovereign discretion during emergencies because “the precise details of an emergency cannot be anticipated” in advance. The sovereign must therefore possess unfettered discretion to determine both “whether there is an extreme emergency” and “what must be done to eliminate it.”

Few legal scholars have embraced Schmitt’s theory of emergencies with the enthusiasm and sophistication of Adrian Vermeule, the John H. Watson, Jr. Professor …

The Effect Of Legal Professionalization On Moral Reasoning: A Reply To Professor Vischer And Professor Wendel, Michael Hatfield

NULR Online

I am grateful to Professor Vischer and Professor Wendel for their responses to my essay, Professionalizing Moral Deference; I learned a great deal from each piece. I also appreciate their patience in enduring my finalization of the essay and am indebted to them both for their personal indulgence and intellectual stimulation.

The aim of my earlier essay was to open a new discussion of lawyers and morality through my reflections on the so-called “Torture Memo.” Specifically, my essay focuses on the effect of legal training and practice on lawyers’ moral reasoning. It explores the ways in which we, as …

Crossing Over: Why Attorneys (And Judges) Should Not Be Able To Cross-Examine Witnesses Regarding Their Immigration Statuses For Impeachment Purposes, Colin Miller

NULR Online

You are sitting in an empty bar (in a town you’ve never before visited), drinking a Bacardi with a soft-spoken acquaintance you barely know. After an hour, a third individual walks into the tavern and sits by himself, and you ask your acquaintance who the new man is. “Be careful of that guy,” you are told. “He is a man with a past.” A few minutes later, a fourth person enters the bar; he also sits alone. You ask your acquaintance who this new individual is. “Be careful of that guy, too,” he says. “He is a man with no …

Pleasant Grove City V. Summum: Monuments, Messages, And The Next Establishment Clause, Lisa Shaw Roy

NULR Online

The facts of Pleasant Grove City v. Summum are well known by now: Summum, a small religious group, argued that Pleasant Grove City violated the Free Speech Clause of the First Amendment when it refused to display Summum’s monument in the city’s Pioneer Park, which already contained fifteen other monuments, including a Ten Commandments display. Summum’s unlikely claim won in the Tenth Circuit Court of Appeals, a request for rehearing was denied, and the case ultimately was heard before the U.S. Supreme Court. During the oral arguments, the Justices (along with commentators, Court watchers, and, of course, the litigants themselves) …

The Right To Exclude In The Shadow Of The Cathedral: A Response To Parchomovsky And Stein, Eric R. Claeys

NULR Online

Reconceptualizing Trespass, by Professors Gideon Parchomovsky and Alex Stein, falls in the genre of law and economics scholarship inspired by Guido Calabresi and A. Douglas Melamed’s classic article, One View of the Cathedral (“the Cathedral”). Reconceptualizing Trespass argues that, in property torts, scholarship under the Cathedral has focused too much on damage awards with the features of Cathedral liability rules, and too little on damage awards that have the features of Cathedral property rules. Ideally, the authors argue, property rule damages should award owners approximations of their subjective values over their property; as a second-best substitute, such damages …

Evolutionary Due Process, Louis J. Virelli Iii

NULR Online

The issue of evolution instruction in American public schools is becoming increasingly complex, both legally and politically. Until recently, the controversy over whether and how to teach evolution in public school science classes has been singularly focused on the constitutional limits of government support for religion under the First Amendment’s Establishment Clause. Current measures in Louisiana and Texas, however, represent a shift toward a new “adjudicative model” for addressing questions of evolution instruction. This adjudicative model permits individual educators to treat evolution issues on a case-by-case basis, which, in turn, implicates a new constitutional issue in the evolution education debate: …

Cleaning The Murky Safe Harbor For Forward-Looking Statements: An Inquiry Into Whether Actual Knowledge Of Falsity Precludes The Meaningful Cautionary Statement Defense, Allan Horwich

Faculty Working Papers

Congress included a safe harbor for forward-looking statements in the 1995 Private Securities Litigation Reform Act. This affords certain issuers and other specified persons limited protection from civil liability for damages under the Securities Act of 1933 and the Securities Exchange Act of 1934 when the projections or objectives in a forward-looking statement are not realized, i.e., turn out to be false. The safe harbor contains two principal elements, in addition to protection for "immaterial" statements: one prong where projections are accompanied by "meaningful cautionary statements," the second prong where the plaintiff fails to prove that the speaker made the …

Individualization Claims In Forensic Science: Still Unwarranted, Jonathan Koehler, Michael J. Saks

Faculty Working Papers

In a 2008 paper published in the Vanderbilt Law Review entitled "The Individualization Fallacy in Forensic Science Evidence," we argued that no scientific basis exists for the proposition that forensic scientists can "individualize" an unknown marking (such as a fingerprint, tire track, or handwriting sample) to a particular person or object to the exclusion of all others in the world. In this special issue of the Brooklyn Law Review, we clarify, refine, and extend some of the ideas presented in Fallacy. Some of the refinements are prompted by Professor David Kaye's paper, also in this issue of the Review, in …

Forced Labor, Revisited: The Thirteenth Amendment And Abortion, Andrew Koppelman

Faculty Working Papers

Many recent works on the Thirteenth Amendment break new ground, deploying the amendment in new and creative ways. This is not one of them. I here restate an argument I made twenty years ago, defending abortion rights on the basis of the amendment. I then consider how the work was received, offer some amendments to the argument, and conclude with some reflections on how, perhaps, it can have more influence in the future.

Islamic Law And The Making And Remaking Of The Iraqi Legal System, Kristen Stilt

Faculty Working Papers

This article examines the drafting process of the new Iraqi constitution, which took place in 2004 and 2005 as a result of the U.S. invasion of Iraq. It addresses the role of Islamic law in the Iraqi legal system prior to the invasion and considers how a new constitution may deal with the question and analyzes, based on Iraq's history, current situation, and the experience of other similar countries, how Islamic law may be retained or incorporated into the new Iraqi legal system. While the constitutional discussion is important, the Article also shows who debates over Islamic law in Iraq …

Reclaiming The Immigration Constitution Of The Early Republic, James Pfander

Faculty Working Papers

In contrast to the view that national immigration policy began in 1875, this article explores evidence that immigration policy dates from the early republic period. Built around the naturalization clause, which regulates the ability of aliens to own land and shaped their willingness to immigrate to America, this early republic immigration policy included strong norms of prospectivity, uniformity, and transparency. Drawing on these norms, which readily apply in both the naturalization and immigration contexts, the paper argues against the plenary power doctrine, particularly as it purports to authorize Congress to change the rules of immigration midstream and apply them to …

The Political Economy Of Taxation: A Critical Review Of A Classic, Nancy Staudt

Faculty Working Papers

This book review reexamines Henry Simons famous contribution to the tax policy literature, "Personal Income Taxation: The Definition of Income as Problem in Fiscal Policy" (1938). It argues that while Professor Simons was concerned with tax fairness and the redistribution of income, he adopted a definition of income that worked to undermine the interests of many of the poor individuals in society that he sought to support.

The Judicial Power Of The Purse: How Courts Fund National Defense In Times Of Crisis (An Introduction), Nancy Staudt

Faculty Working Papers

This introduction to a forthcoming book (Spring 2011) briefly describes judges' hidden purse powers along with a theory for how and why judges will utilize these powers to keep the nation safe in times of foreign policy crisis. Ultimately, the book-length project investigates the empirical implications of the theory with both qualitative and quantitative data and finds substantial support for the idea that judges's use their financial powers differently in times of peace and in times of crisis

Tax Theory And "Mere Critique": A Reply To Professor Zelenak, Nancy Staudt

Faculty Working Papers

In this symposium essay, I briefly explore the usefulness of critical scholarship generally and then point to the manner in which this type of analysis can (and does) advance Professor Zelenak's aim of devising technical solutions to difficult policy problems. I then turn to Zelenak's critique of my article, "Taxing Housework." I argue that far from undermining my proposal to tax imputed income, Zelenak's work highlights several reasons for considering the proposal as an alternative to the existing tax structure. Importantly, I do not claim that taxing women's household labor is a perfect solution to the social and economic problems …

The Theory And Practice Of Taxing Difference, Nancy Staudt

Faculty Working Papers

This is a review essay that examines Professor Edward McCaffery's important book, "Taxing Women." It argues that while McCaffery provides a detailed and nuanced analysis of the feminist and economic issues, his work is problematic in several ways. First, it is not clear that the optimal theory of taxation leads to the policy reform he proposes-it may be both underinclusive and overinclusive. Second, even if McCaffery has identified a clear economic rationale for taxing married women at a lower rate than men and single women, feminists may object to this proposed tax structure on a number of grounds. Finally, McCaffery's …

It's A Bird, It's A Plane, It's Jus Cogens!, Anthony D'Amato

Faculty Working Papers

What we require—like the third bowl of soup in the story of the three bears—is a theory of jus cogens that is Just Right. I do not know if such a theory is possible. I don't even know if one is conceivable. But if someone conceives it, that person deserves the very next International Oscar. To qualify for the award, the theory must answer the following questions: