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Category: Law Rev (Northwestern)

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On the Colloquy: Perspectives on Fisher v. University of Texas at Austin

Just in time for oral arguments in Fisher v. University of Texas at Austin, the online companion to the Northwestern University Law Review is pleased to feature an article by Professor Ellen Katz entitled Grutter‘s Denouement: Three Templates from the Roberts Court. Katz argues that while Fisher is widely expected to end the race-based affirmative action in higher education upheld in Grutter v. Bollinger a decade ago, it remains to be seen exactly how the Roberts Court – which has not been shy about voicing its hostility to race-based criteria in a variety of contexts – will express its condemnation. In particular, Katz identifies three very different ways in which the court may resolve Fisher, each based on one of the Court’s previous approaches to disavowing precedent.

Earlier this year, the Colloquy featured an essay by Professor Allen Rostron entitled Affirmative Action, Justice Kennedy, and the Virtues of the Middle Ground. In his article, Rostron notes that critics have condemned  the failure of Justice Kennedy – who often casts the decisive vote in ideologically charged chases – to establish clear rules of law through his opinions. Rostron argues that in Fisher, however, Justice Kennedy’s irresolute nature may prove to be a blessing, in that it may help him accommodate the American public’s conflicted feelings about racial preferences while simultaneously forcing serious thinking about how racial components of affirmative action can be phased out in a manner that will minimize disruption and bitterness.

Read these articles and more on the Colloquy.

 


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On the Colloquy: The Fourth Amendment and Airport Screening Issues

The online companion to the Northwestern University Law Review is proud to feature companion essays on the Fourth Amendment and newly invasive airport screening methods.

In Revisiting “Special Needs” Theory Via Airport Searches, Professor Alexander Reinert examines the controversy surrounding the Travel Security Administration’s new airport search regime by reference to the Fourth Amendment jurisprudence that developed in response to the first instantiation of mass airport searches in the early 1960s. While the Fourth Amendment approaches developed in the 1970s remain relevant today, Professor Reinert argues, TSA’s new search regime is more difficult to square with traditional Fourth Amendment principles than were the FAA’s initial airport screening procedures; and precisely because of the pressure on courts to adjust Fourth Amendment doctrine to meet the perceived needs of the TSA and the traveling public, it is all the more important that new doctrinal limitations accompany any judicial acceptance of the TSA’s new search regime.

In his companion piece The Bin Laden Exception, Professor Erik Luna complements Professor Reinert’s Essay on the Fourth Amendment and airport safety by providing context on terrorism and the decade of Osama bin Laden. Specifically, Professor Luna argues what is at play in the airport search context is not a previously recognized exception to the Fourth Amendment, but instead an entirely new exemption from otherwise applicable requirements, driven by an abiding fear of al Qaeda and its now-deceased kingpin rather than a reasoned assessment of terrorism-related risks.

Read both pieces online at the Northwestern University Law Review Colloquy.

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On the Colloquy: The Constitutional Politics of the Tea Party Movement


The online companion to the Northwestern University Law Review is proud to feature a four-part series on the constitutional politics of the Tea Party:

The essays originated as a panel discussion at the 2011 Annual Meeting of the Association of American Law Schools. Professor Richard Albert offers a brief introduction to the online series and explains the impetus for convening a group of renowned constitutional law scholars to discuss the rise of the Tea Party movement.

Professor Randy Barnett, author of the Repeal Amendment, defends the nature of the Tea Party movement and gives a first-hand account of the development of his constitutional proposal, which has attracted significant support from the group. Professor Barnett also responds to criticisms of the Amendment leveled by Professor Levinson, arguing that his proposal is, if anything, too modest in scope.

Professor Sandy Levinson continues the debate with a critique of Professor Barnett’s proposed Repeal Amendment, which would allow the legislatures of two-thirds of all states to repeal any congressional legislation. Levinson argues that such an amendment undemocratically empowers small states to kill federal legislation.

Professor Jared Goldstein assesses popular constitutionalism in light of the Tea Party movement. After discussing the movement’s constitutional vision and rhetoric, Goldstein suggests that popular engagement with the Constitution and control over its interpretation may not promote democratic values as expected.

Professor Ilya Somin observes that the Tea Party is the first popular constitutionalist movement in many years primarily focused on limiting federal power. He then argues that the Tea Party’s efforts to impose stricter limits on government power would further two important objectives: strengthening democratic accountability and limiting popular hostility towards minorities and foreigners.

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On the Colloquy: Military Sexual Status Regulation, Artificial Intelligence, Black Holes, 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.

Professor Zachary Kramer writes in his essay that the U.S. military should not be in the business of regulating sexual status. Rather, the military should focus on regulation of sexual conduct for both hetero- and homosexuals.

Professor John McGinnis discusses a recent major media interest, Artificial Intelligence, and what the best government response to its development should be. He argues that, rather than prohibition or heavy regulation, the government should support the development of so-called “friendly AI,” to both prevent potential threats and develop the many benefits of it.

Several legal scholars, notably Professor Adrian Vermeule, contend that the APA is replete with procedural exceptions, which generate “black holes” where federal agencies are free to act outside the constraints of legal order. Unlike Professor Vermeule, Professor Evan Criddle argues that such black holes are not institutional inevitabilities. Rather, administrative law should be reformed to promote a culture of justification, based on the principle that public officials and agencies serve as fiduciaries for the public.

Finally, in Professor Martin Redish’s new book, Wholesale Justice, he provides a thorough analysis of the constitutional implications of the class action mechanism. In his book review, Douglas Smith expands upon these ideas and discusses other ways in which Professor Redish’s theories may be applied in practice or in which the constitutional concerns he identifies may already be recognized.

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: 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)