Volume 69 Category
The Failed Superiority Experiment
Oct. 17, 2016—The Failed Superiority Experiment ABSTRACT Federal law requires a class action be “superior to alternative methods for fairly and efficiently adjudicating the controversy.” This superiority requirement has gone unstudied, despite existing for half a century. This Article undertakes a comprehensive review of the superiority case law. It reveals a jurisprudence riddled with inconsistency as courts...
Supreme Court Repeaters
Oct. 17, 2016—Supreme Court Repeaters ABSTRACT A case that receives cert once is special. A case that receives cert twice is truly exceptional. This Article is the first to examine the phenomenon of “Supreme Court Repeaters.” Although Repeaters may seem like mere curiosities, they are actually a valuable part of the Supreme Court’s docket. Our analysis reveals...
The Customer Is Not Always Right: Balancing Worker and Customer Welfare in Antitrust Law
Oct. 17, 2016—The Customer Is Not Always Right Balancing Worker and Customer Welfare in Antitrust Law ABSTRACT A natural consequence of employer restraints of trade that decrease wages is lower prices. Under antitrust law, courts evaluate most such restraints of trade under the rule of reason. This Note argues that the rule of reason’s focus on consumer...
I See Dead People: Examining the Admissibility of Living-Victim Photographs in Murder Trials
Oct. 17, 2016—I See Dead People Examining the Admissibility of Living-Victim Photographs in Murder Trials ABSTRACT This Note examines the problems with the rising yet underexplored trend in state evidence law of “Living-Victim Photo Statutes.” Photographs of a victim while alive would be—and often have been—excluded from evidence during a trial as lacking relevance or being unfairly...
Introduction: Is the Supreme Court Failing at Its Job, or Are We Failing at Ours?
May. 25, 2016—Introduction: Is the Supreme Court Failing at Its Job, or Are We Failing at Ours? AUTHOR Herman O. Loewenstein Professor of Law, Vanderbilt University.
Thinking About the Supreme Court’s Successes and Failures
May. 25, 2016—Thinking About the Supreme Court’s Successes and Failures AUTHOR Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law.
Rethinking Judicial Minimalism: Abortion Politics, Party Polarization, and the Consequences of Returning the Constitution to Elected Government
May. 25, 2016—Rethinking Judicial Minimalism: Abortion Politics, Party Polarization, and the Consequences of Returning the Constitution to Elected Government AUTHOR Sandra Day O’Connor Professor of Law and Professor of Government, College of William & Mary. This paper is an outgrowth both of conversations with Caitlin Borgmann and of remarks I made at the June 2015 Privacy Discussion...
A Tribute to Justice Scalia: Why Bad Cases Make Bad Methodology
May. 25, 2016—A Tribute to Justice Scalia: Why Bad Cases Make Bad Methodology AUTHOR Professor of Law, Vanderbilt University Law School. J.D., 2000, Harvard Law School.
Letter To Supreme Court (Erwin Chemerinsky is Mad. Why You Should Care.)
May. 25, 2016—Letter To Supreme Court (Erwin Chemerinsky is Mad. Why You Should Care.) AUTHOR Jacob D. Fuchsberg Professor of Law at New York University School of Law. Thanks to Randy Barnett, Josh Blackman, Orin Kerr, Rick Pildes, and Maria Ponomarenko for comments on a prior draft. Special thanks to Erwin Chemerinsky, a friend throughout my professional...
Three Supreme Court “Failures” and a Story of Supreme Court Success
May. 25, 2016—Three Supreme Court “Failures” and a Story of Supreme Court Success AUTHOR Professor of Law and Associate Dean of Faculty Development, University of Richmond School of Law. Thanks to the faculty of Vanderbilt Law School, particularly Suzanna Sherry, for the insightful comments and questions I received while workshopping this piece there. Special thanks to Eric...
The Broken-Hearted Lover: Erwin Chemerinsky’s Romantic Longings for a Mythical Court
May. 25, 2016—The Broken-Hearted Lover: Erwin Chemerinsky’s Romantic Longings for a Mythical Court AUTHOR Associate Professor of Political Science and Lecturer in Law, University of Chicago.
The Supreme Court in Context: Conceptual, Pragmatic, and Institutional
May. 25, 2016—The Supreme Court in Context: Conceptual, Pragmatic, and Institutional AUTHOR University Professor of Law and Political Science, Vanderbilt University.
The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches
Apr. 19, 2016—The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches ABSTRACT Last year, in Riley v. California, the Supreme Court required police to procure a warrant before searching a cell phone. Unfortunately, the Court’s assumption that requiring search warrants would be “simple” and very protective of privacy was overly optimistic. This article reviews...
Constitutionalizing Corporate Law
Apr. 19, 2016—Constitutionalizing Corporate Law ABSTRACT The Supreme Court has recently decided some of the most important and controversial cases involving the federal rights of corporations in over two hundred years of jurisprudence. In rulings ranging from corporate political spending to religious liberty rights, the Court has dramatically expanded the zone in which corporations can act free...
Intrafirm Monitoring of Executive Compensation
Apr. 19, 2016—Intrafirm Monitoring of Executive Compensation ABSTRACT This Article argues that employees should serve as intrafirm monitors of executive performance and pay. Employees and shareholders, labor and capital, can monitor executive performance and pay at different levels. Diffuse, diversified, and short durational shareholders currently monitor performance and pay through the market mechanism of public disclosures and...
How to Assert State Sovereign Immunity Under the Federal Rules of Civil Procedure
Apr. 19, 2016—How to Assert State Sovereign Immunity Under the Federal Rules of Civil Procedure ABSTRACT For the past twenty years, the Supreme Court has charted a broader course for its state sovereign immunity doctrine, which immunizes states and their officers from suit. But while the Court has broadened the doctrine’s substantive elements, it has neglected how...