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Author: Northwestern University Law Review

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On the Colloquy: Cohill Remands, Pay to Play Corruption, Stoneridge, and more

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In the past month, the Northwestern University Law Review Colloquy has published essays relevant to current events and debates. Professors Hollener and Howell write in their essay that the Supreme Court should reverse the Federal Circuit’s decision in HIF Bio. The Federal Circuit erred in concluding that all Cohill remands are subject matter jurisdictional. Courts remand supplemental claims, they argue, because state courts are a better forum to litigate the issues. Professor Walker examines pay-to-play corruption and its implications for campaign finance law. His analysis is particularly salient in light of Gov. Blagojevich’s recent indictment.

Whether people possess fundamental rights and liberties beyond what is written in the Constitution has been debated for centuries. One of the most prominent constitutional scholars, Professor Laurence Tribe, tries to contribute to that debate. Professor Segall, in his essay, claims that Professor Tribe’s new book fails to advance the debate over whether the United States has an unwritten constitution. Professor Gevurtz weighs in on Stoneridge Investment Partners, v. Scientific-Atlanta, one of the most controversial decisions handed down by the Supreme Court in recent times. Professors Sarma, Smith, and Cohen observe that the Supreme Court has conflated the Fifth Amendment’s protections with the Six Amendment’s right to counsel, causing jurisprudential disorder. Several justices have considered collapsing the right to counsel into the Fifth Amendment. The professors’ essay argues that the justices should resist the temptation to do so.

For more, go to the Colloquy archives page, and remember to check back each week for new content.

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Northwestern University Law Review, Issue 103:1 (Spring 2009)

(See here for links to articles in recent issues and the contents of forthcoming issues.)

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Articles

Andrew S. Gold, A Property Theory of Contract, 103 Nw. U. L. Rev. 1 (2009).

Bruce Ackerman & Jennifer Nou, Canonizing the Civil Rights Revolution: The People and the Poll Tax, 103 Nw. U. L. Rev. 63 (2009).

Eugene Kontorovich, The “Define and Punish” Clause and the Limits of Universal Jurisdiction, 103 Nw. U. L. Rev. 149 (2009).

Zachary A. Kramer, Heterosexuality and Title VII, 103 Nw. U. L. Rev. 205 (2009).

Essays

Randy Beck, Gonzales, Casey, and the Viability Rule, 103 Nw. U. L. Rev. 249 (2009).

Marcel Kahan & Edward Rock, Hedge Fund Activism in the Enforcement of Bondholder Rights, 103 Nw. U. L. Rev. 281 (2009).

Howard J. Trienens Visiting Scholar Program

Stephen F. Williams, Preemption: First Principles, 103 Nw. U. L. Rev. 323 (2009).

Notes and Comments

Matthew B. Arnould, A Maverick Achieves Something Nobler than Simple Rebellion: Why Sharesleuth Is Legal Under Section 10(b) and Rule 10b-5, and Why It Should Remain That Way, 103 Nw. U. L. Rev. 335 (2009).

Courtney Rachel Baron, An Eye for an Eye Leaves Everyone Blind: Fields v. Brown and the Case for Keeping the Bible out of Capital Sentencing Deliberations, 103 Nw. U. L. Rev. 369 (2009).

William J. Katt, Res Judicata and Rule 19, 103 Nw. U. L. Rev. 401 (2009).

Colloquy Essays

Catherine M. Sharkey, What Riegel Portends for FDA Preemption of State Law Products Liability Claims, 103 Nw. U. L. Rev. 437 (2009).

Richard A. Epstein, The Case for Field Preemption of State Laws in Drug Cases, 103 Nw. U. L. Rev. 463 (2009).

Barry P. McDonald, If Obscenity Were to Discriminate, 103 Nw. U. L. Rev. 475 (2009).

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On the Colloquy: St. George Tucker, Midnight Regulation, Proposition 8, and More

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Recently, the Colloquy has started a dialogue on St. George Tucker. Professor Cornell disputes Hardy’s characterization of St. George Tucker. Hardy, as you’ll remember from his previous colloquy piece, criticized Justice Stevens’ mention of St. George’s work in DC v. Heller. Cornell says Hardy’s description of Tucker as an original public meaning originalist is incorrect.

Professor Zasloff observes that with the new Obama administration taking power, bureaucratic reorganization is inevitable. He then argues that in the realm of international climate change, the Office of the United States Trade Representative (USTR) is best positioned to design effective international climate change architecture. Speaking of transitioning administrations, Professor Beermann examines the phenomenon of “midnight regulation,” a series of regulations enacted by an outgoing administration when a new one is waiting to take over.

The United States form of elected government differs from those of other countries through the lens of the executive appointment process. In our form of government, as Professor Fontana observes in his essay, after a POTUS is elected, there is a scramble for who gets what position on the transition team. In other countries, there are systems set up of appointing those in the losing political coalition to various executive positions. Thus, in other countries, it is much easier to identify who are the minority party leaders.

Professor Ghosh examines the three fundamental tenets of intellectual property rights and competition policy and their application to a preliminary report released by the European Commission in November 2008.

The New York Times reported that prior to the passage of California’s Proposition 8, churches played an active role in supporting the initiative. Gay rights advocates and others have argued that the churches’ support violate federal law restricting political activity by tax-exempt charities. Professor Galle analyzes the merits to this argument in his essay.

A growing trend in corporate law is the notable increase of independent directors appointed to corporate boards. Professors Sharfman and Toll argue that the “independence” sought by corporations is useless without “independence of mind.”

For more, go to the Colloquy archives page, and remember to check back each week for new content.

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On the Colloquy: Military Commissions, International Antitrust, Presidential Transitions, and More

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In the past few months, the Northwestern University Law Review Colloquy has published essays contributing to several existing and new colloquies. Amos N. Guiora wrote an essay about military commissions and national security courts, which added to the colloquy on the Military Commissions Act. Click here to view all of the essays in the colloquy on a single page. Salil Mehra wrote an essay regarding building antitrust agency capacity that responded to an earlier essay on the subject by D. Daniel Sokol. Both essays can be viewed by clicking here.

Additionally, the Colloquy recently published an essay by Paul Horwitz that began a discussion on presidential transitions. In conjunction with this colloquy, we republished a series of essays by Seth Barrett Tillman and Brian C. Kalt that were originally published in volume 101 of the Colloquy. To view all of the essays on one page click here. We will be publishing several more essays regarding presidential transitions in the coming weeks.

We have continued to focus on recent Supreme Court cases with an essay on City of Pleasant Grove v. Summun by Paul E. McGreal. We have also published stand-alone essays on various topics, such as an essay by Alex B. Long on recent amendments to the Americans with Disabilities Act, an essay by Jennifer S. Hendricks that proposes revisions to the Employment Non-Discrimination Act, an essay by Adam N. Steinman that addresses proposed amendments to Rule 56 of the Federal Rule of Civil Procedure, and an essay by David T. Hardy that discusses the lecture notes of St. George Tucker. This week, we published an essay by Mitchell H. Rubinstein concerning an interesting case where an attorney and his nurse clients were criminally charged after the nurses resigned en mass.

For more, go to the Colloquy archives page, and remember to check back each week for new content.

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On the Colloquy:

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It has been a busy summer and fall for the Northwestern University Law Review Colloquy. We have focused on timely issues including several recent Supreme Court decisions, and we have published several colloquies as well as stand alone pieces. Recent colloquies have included discussions of: The Military Commissions Act of 2006, Preemption of State Laws in Drug Cases, Capital Punishment for Child Rape Offenders, and Antitrust and the Internet. Click on the respective links to view all of the essays on a single page. Additionally, click on the links below to access each of our recent essays.

Engaging Capital Emotions 

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  Douglas A. Berman & Stephanos Bibas
A Floor, Not a Ceiling: Federalism and Remedies for Violations of Constitutional Rights in Danforth v. Minnesota 

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  Ilya Somin
The Many Mendelsohn “Me Too” Missteps: An Alliterative Response to Professor Rubinstein 

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  Paul Secunda
Sprint/United Management Company v. Mendelsohn and Case-by-Case Adjudication of “Me Too” Evidence of Discrimination 

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  David L. Gregory
The Significance of Sprint/United Management Company v. Mendelsohn: A Reply to Professors Gregory and Secunda 

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  Mitchell H. Rubinstein
Ordeal By Innocence: Why There Should Be a Wrongful Incarceration/Execution Exception to Attorney-Client Confidentiality 

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  Colin Miller
Heller‘s Future in the Lower Courts 

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  Glenn H. Reynolds & Brannon P. Denning
What Riegel Portends for FDA Preemption of State Law Products Liability Claims 

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  Catherine M. Sharkey
Competition and Privacy in Web 2.0 and the Cloud 

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  Randal C. Picker
Rediscovering the Law’s Moral Roots 

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  Morris B. Hoffman
Child Rape, Moral Outrage, and the Death Penalty 

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  Susan A. Bandes
Beyond Guantanamo, Obstacles and Options 

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  Gregory S. McNeal
The Case for Field Preemption of State Laws in Drug Cases 

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  Richard A. Epstein
Finding a Happy and Ethical Medium Between a Prosecutor Who Believes the Defendant Didn’t Do It and the Boss Who Says That He Did 

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  Melanie D. Wilson
If Obscenity Were To Discriminate 

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  Barry P. McDonald
No Third Class Processes for Foreigners 

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  Benjamin G. Davis
Crying Havoc Over the Outsourcing of Soldiers and Democracy’s Slipping Grip on the Dogs of War 

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  Joshua S. Press
The Influence of Ex Parte Quirin and Courts-Martial on Military Commissions 

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  Morris D. Davis
Continuing the Debate About Presidential Debates 

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  Alexander J. Blenkinsopp
Is Military Law Relevant to the “Evolving Standards of Decency” Embodied in the Eighth Amendment? 

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  Corey Rayburn Yung
A Comment on Rosenberg’s New Edition of The Hollow Hope 

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  Richard Delgado
Dysfunctional Deference and Board Composition: Lessons from Enron 

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  Bernard S. Sharfman & Steven J. Toll
Diversity and Race-Neutrality 

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  Kenneth L. Marcus
On Jurisdictional Elephants and Kangaroo Courts 

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  Stephen I. Vladeck

For more, go to the Colloquy archives page, and remember to check back each week for new content.

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Northwestern University Law Review, Issue 102:2 (Special Issue 2008)

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Northwestern University Law Review, Issue 102:2 (Special Issue 2008)

(See here for links to articles in recent issues and the contents of forthcoming issues.)

Symposium on Ordering State-Federal Relations Through Federal Preemption Doctrine

Nury Raquel Agudo & Alison E. Buckley, Foreward: Symposium on Ordering State-Federal Relations Through Federal Preemption Doctrine, 102 Nw. U. L. Rev. 503 (2008)

David A. Dana, Democratizing the Law of Federal Preemption, 102 Nw. U. L. Rev. 507 (2008)

Richard A. Epstein, Federal Preemption, and Federal Common Law, in Nuisance Cases, 102 Nw. U. L. Rev. 551 (2008)

Robert L. Glicksman & Richard E. Levy, A Collective Action Perspective on Ceiling Preemption by Federal Environmental Regulation: The Case of Global Climate Change, 102 Nw. U. L. Rev. 579 (2008)

Howard A. Learner, Restraining Federal Preemption When There Is an “Emerging Consensus” of State Environmental Laws and Policies, 102 Nw. U. L. Rev. 649 (2008)

Raymond B. Ludwiszewski & Charles H. Haake, Cars, Carbon, and Climate Change, 102 Nw. U. L. Rev. 665 (2008)

Nina A. Mendelson, A Presumption Against Agency Preemption, 102 Nw. U. L. Rev. 695 (2008)

Thomas W. Merrill, Preemption and Institutional Choice, 102 Nw. U. L. Rev. 727 (2008)

Mark D. Rosen, Contextualizing Preemption, 102 Nw. U. L. Rev. 781 (2008)

Robert A. Schapiro, Monophonic Preemption, 102 Nw. U. L. Rev. 811 (2008)

Catherine M. Sharkey, The Fraud Caveat to Agency Preemption, 102 Nw. U. L. Rev. 841 (2008)

Ernest A. Young, Executive Preemption, 102 Nw. U. L. Rev. 869 (2008)

Comments

Patricia B. Hsue, Lessons from United States v. Stein: Is the Line Between Criminal and Civil Sanctions for Illegal Tax Shelters a Dot?, 102 Nw. U. L. Rev. 903 (2008)

Kristin H. Berger Parker, Ambient Harassment Under Title VII: Reconsidering the Workplace Environment, 102 Nw. U. L. Rev. 945 (2008)

Joshua S. Press, Teachers, Leave Those Kids Alone? On Free Speech and Shouting Fiery Epithets in a Crowded Dormitory, 102 Nw. U. L. Rev. 987 (2008)

Colloquy Essay

Kathryn A. Watts & Amy J. Wildermuth, Massachusetts v. EPA: Breaking New Ground on Issues Other than Global Warming, 102 Nw. U. L. Rev. 1029 (2008)

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On the Colloquy: Antitrust, Mendelsohn, and More

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This week, the Northwestern University Law Review Colloquy published an Essay by Professor William H. Page and Mr. Seldon J. Childers that discusses the Microsoft-Samba agreement. This Essay is part of an ongoing colloquy started by Professor David S. Evans in an Essay discussing issues that the internet poses for antitrust law.

The Colloquy has also recently started a dialogue on the impact of the Supreme Court’s decision in Sprint/United Management Co. v. Mendelsohn. Professor Mitchell H. Rubinstein began this discussion in his Essay, and we look forward to continuing it this summer. Additionally, we continued our colloquy on climate change legislation with a piece by Professor Hari M. Osofsky.

Due to our emphasis on timely pieces, we have also recently published an Essay by Professor Richard L. Hasen debating the constitutionality of Congressional measures to reform presidential primaries. We also published a piece by Professor Amy J. Wildermuth arguing for an amendment to the Federal Rules of Civil Procedure in light of Bell Atlantic Court v. Twombly right before the May 1st deadline for the Supreme Court to announce Rules revisions. Professor Holning Lau also wrote an Essay analyzing the effect of globalization on human rights protections, with a focus upon homosexual rights, which includes commentary on the recent California decision to allow same-sex marriage.

Finally, the Colloquy also published interesting Essays by Professor Brian G. Slocum (hyperlink: ) analyzing contractionist statutory interpretations and Mr. Aaron R. Petty arguing that the unavailability requirement of the Sixth Amendment should be lowered in situations where there is forfeiture by wrongdoing.

For more, go to the Colloquy archives page, and remember to check back each week for new content.

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Northwestern University Law Review, Issue 102:1 (Winter 2008)

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Northwestern University Law Review, Issue 102:1 (Winter 2008)

(See here for links to articles in recent issues and the contents of forthcoming issues.)

Articles

Nestor M. Davidson, The Problem of Equality in Takings, 102 Nw. U. L. Rev. 1 (2008)

Scott Dodson, In Search of Removal Jurisdiction, 102 Nw. U. L. Rev. 55 (2008)

Timothy P. Glynn, Delaware’s VantagePoint: The Empire Strikes Back in the Post-Post-Enron Era, 102 Nw. U. L. Rev. 91 (2008)

Andy G. Olree, James Madison and Legislative Chaplains, 102 Nw. U. L. Rev. 145 (2008)

Essays

Yuval Feldman & Doron Teichman, Are All “Legal Dollars” Created Equal?, 102 Nw. U. L. Rev. 223 (2008)

Tonja Jacobi & Gwendolyn Carroll, Acknowledging Guilt: Forcing Self-Identification in Post-Conviction DNA Testing, 102 Nw. U. L. Rev. 263 (2008)

Comments

Sarah E. Agudo, Irregular Passion: The Unconstitutionality and Inefficacy of Sex Offender Residency Laws, 102 Nw. U. L. Rev. 307 (2008)

Dan Fenske, All Enemies, Foreign and Domestic: Erasing the Distinction Between Foreign and Domestic Intelligence Gathering Under the Fourth Amendment, 102 Nw. U. L. Rev. 343 (2008)

Sena Ku, The Supreme Court’s GVR Power: Drawing a Line Between Deference and Control, 102 Nw. U. L. Rev. 383 (2008)

Colloquy Essay

David McGowan, What Tool Works Tells Us About Tailoring Patent Misuse Remedies, 102 Nw. U. L. Rev. 421 (2008)

Special Section: 2006 Federalist Society National Lawyers Convention

Panel I: Limited Government and Spreading Democracy: Uneasy Cousins?

A. Raymond Randolph, Spreading Democracy, 102 Nw. U. L. Rev. 431 (2008)

Kenneth Wollack, Democracy Promotion: Serving U.S. Values and Interests, 102 Nw. U. L. Rev. 433 (2008)

François-Henri Briard, France and the United States: Not So Far from Each Other, 102 Nw. U. L. Rev. 437 (2008)

Tom G. Palmer, Democracy and the Contest for Liberty, 102 Nw. U. L. Rev. 443 (2008)

William Kristol, Limited Government and Spreading Democracy: Two Fronts, 102 Nw. U. L. Rev. 449 (2008)

Panel III: Are Constitutional Changes Necessary to Limit Government?

David B. Sentelle, Introductory Remarks, 102 Nw. U. L. Rev. 455 (2008)

William N. Eskridge, Jr., No Easy Constitutional Solution for Big Government, 102 Nw. U. L. Rev. 457 (2008)

Daniel H. Lowenstein, Term Limits, Initiatives, and Other Gimmickry, 102 Nw. U. L. Rev. 461 (2008)

Richard D. Parker, Two Concepts of Government, 102 Nw. U. L. Rev. 465 (2008)

Frank H. Easterbrook, On Constitutional Changes to Limit Government, 102 Nw. U. L. Rev. 469 (2008)

Panel IV: The Role of Government in Defining Our Culture

Edwin Meese III, Introductory Remarks, 102 Nw. U. L. Rev. 477 (2008)

Walter E. Dellinger III, Cultural Values and Government, 102 Nw. U. L. Rev. 479 (2008)

Charles Murray, The (Im)proper Role of Government in Defining Our Culture, 102 Nw. U. L. Rev. 483 (2008)

Anthony D. Romero, “Limited Government” and the Betrayal of American Values, 102 Nw. U. L. Rev. 487 (2008)

Phyllis Schlafly, How the Government Influences Our Culture, 102 Nw. U. L. Rev. 491 (2008)

William N. Eskridge, Jr., How Government Unintentionally Influences Culture (The Case of Same-Sex Marriage), 102 Nw. U. L. Rev. 495 (2008)

Hadley P. Arkes, The Role of Government in Shaping Culture, 102 Nw. U. L. Rev. 499 (2008)

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On the Colloquy: Jurisdiction and Climate Change

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This week, the Northwestern University Law Review Colloquy published a response by Professor Scott Dodson regarding the Supreme Court’s decision in Bowles v. Russell. He responded to critiques by Professor Elizabeth Chamblee Burch, Mr. E. King Poor, and Professor Perry Dane and defended his position that the Court disrupted prior precedent in Bowles. To see all of the pieces in the series, click here.

Last week, Professor Howard M. Wasserman responded to Professor Dodson’s Article In Search of Removal Jurisdiction, 102 Nw. U. L. Rev. 55 (2008). His Essay examines the connections between jurisdiction, merits, and procedure, when the connections come into play, and how to separate them out.

On February 11, Professor Robert L. Glicksman participated in the ongoing debate on climate change legislation. He discussed which federal agencies should be responsible for implementing climate change regulation, the proper measure of discretion that Congress should afford these various agencies, and whether the regulation should trump state and local initiatives. To see all pieces in the series, click here.

For more, go to the Colloquy archives page, and remember to check back each week for new content.

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On the Colloquy: The Best of 2007, The Newest of 2008

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The Northwestern University Law Review Colloquy celebrated its first full year of publishing online content in 2007, and we look forward to publishing new pieces throughout 2008. Please be sure to check back weekly for new pieces.

Today, we published the most recent piece in our ongoing series concerning climate change legislation. You can view Professor Rose’s piece here; and you can see all pieces related to climate change here. Keep an eye out in the coming weeks for more contributions to this topic.

We’ve also published more pieces in the past few weeks concerning temporal jurisdiction and the Supreme Court’s decision in Bowles v. Russell. To see all of the pieces in that series, click here.

Continue reading for some of the highlights of the past year.

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