Author: Northwestern University Law Review


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.



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.


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.


On the Colloquy: McDonald, Citizens United, and more

The online companion to the Northwestern University Law Review is proud to feature five new entries:

Second Amendment scholar Patrick Charles provides a response to Professors Lawrence Rosenthal and Joyce Lee Malcolm in the wake of McDonald v. City of Chicago. Mr. Charles presents historical guideposts to make an argument about the constitutionality of open-carry and conceal-carry prohibitions. The article goes on to critically assess the “well-regulated militia” language of the Second Amendment.

Northwestern’s own Professor John McGinnis discusses the promises and perils of artificial intelligence in a recent podcast. Professor McGinnis is the author of the essay Accelerating AI, recently published in the print journal, and the forthcoming book Accelerating Democracy, which will examine the interaction of technological growth and democratic governance.

Famed Chicago public defender Alex Polikoff discusses the recent Citizens United case on the applicability of First Amendment rights to corporations in elections.  He questions several parts of Justice Kennedy’s decision and ultimately finds the majority opinion untenable.

Professor Howard Wasserman explores the ways in which this most recent Supreme Court, including in the unanimous 2010 decision Morrison v. National Australia Bank, now explicitly requires lower courts to maintain clear, determinate lines between jurisdictional rules and those rules reaching the substance on the merits.

Judge Paul Cassell and Steven Joffee respond to Danielle Levine’s recent article on the Crime Victims’ Rights Act.  Cassell and Joffee argue that victims’ rights do not impair the just adjudication of criminal cases, but rather improve it.


Northwestern University Law Review – 104:3 Table of Contents


Reason and Reasonableness in Review of Agency Decisions [citation] Jeffrey A. Pojanowski
Disputing Limited Liability [citation] Christina L. Boyd & David A. Hoffman
The Price of Pleasure [citation] Shari Motro
When the Supreme Court Is Not Supreme [citation] Jason Mazzone
Fixing RAM Copies [citation] Aaron Perzanowski
People Are Not Bananas: How Immigration Differs from Trade [citation] Jennifer Gordon
Strange Bedfellows? Sex, Religion, and Transgender Identity Under Title VII [citation] Sue Landsittel
Charles E. Clark and Simple Pleading: Against a “Formalism of Generality” [citation] Peter Julian
Cooper Technologies Co. v. Dudas: Laying the Foundation for Minimal Deference [citation] David R. Pekarek Krohn
Accelerating AI [citation] John O. McGinnis
Mending Holes in the Rule of (Administrative) Law [citation] Evan J. Criddle

On the Colloquy: Gun-Control, Antitrust and the Media, Constitutional Torts, and Professional Values

NW-Colloquy-Logo.jpgMcDonald v. Chicago: Which Standard of Scrutiny Should Apply to Gun-Control Laws? is a debate between Professors Lawrence Rosenthal and Joyce Lee Malcolm on the  standard of scrutiny that will (and should) be applied to gun control regulations in the wake of the recent SCOTUS decision, McDonald v. City of Chicago. This is an engaging and enlightening discussion on what we might expect in future Second Amendment jurisprudence.

In Why More Antitrust Immunity for the Media Is a Bad Idea, Maurice E. Stucke and Allen P. Grunes—both formerly with the U.S. Department of Justice, Antitrust Division—explore the ways in which the FTC has created antitrust immunity for the newspaper industry.  They conclude that further antitrust immunity is not only unnecessary, but counter-productive to a competitive marketplace of ideas.

Professor Nancy Leong discusses the various contexts where constitutional lawmaking occurs in a challenge to John Jeffries’ desire for clarification of constitutional law no matter the setting in Rethinking the Order of Battle in Constitutional Torts: A Reply to John Jeffries.  Leong puts forward the idea that the characteristics of various contexts (qualified immunity proceedings, suppression hearings) will inevitably influence the resulting constitutional law.

Finally, in A Personal Constitution, Professor Michael Serota argues that law schools’ failure to address professional values is a problem worthy of remedy, and proposes a solution.


On the Colloquy: Salazar v. Buono – A four-part symposium


Now on the Northwestern University Law Review Colloquy, a four-part symposium on the recent Establishment Clause case, Salazar v. Buono.

In the first article, Professor Ian Bartrum discusses how the victory for religious groups may not really be a victory, since the endorsement test now looks to the secularization of religious symbols.

In the second article, Professor Mary Jean Dolan analyzes the new “reasonable observer” portion of the (arguably) expanded endorsement test.

Professor Christopher Lund, in the third article, discusses how the government is forced in cases such as this to define religious symbols (like the cross), and thus threaten to expropriate the meaning of these symbols.

Last, Professor Lisa Roy Shaw explains why the Salazar case did not reach the truly interesting issue of whether the cross violated the Establishment Clause, but instead settled on procedural grounds.


Northwestern University Law Review – 104:1 Table of Contents


The Antidiscrimination Paradox: Why Sex Before Race? [citation] Kimberly A. Yuracko
A Production Theory of Pure Economic Loss [citation] Robert J. Rhee
Beyond Innovation and Competition: The Need for Qualified Transparency in Internet Intermediaries [citation] Frank Pasquale
Federal Courts Not Federal Tribunals [citation] Lumen N. Mulligan
Allowing Patients to Waive the Right to Sue for Medical Malpractice: A Response to Thaler and Sunstein [citation] Tom Baker & Timothy D. Lytton
Antitrust Divergence and the Limits of Economics [citation] Alan Devlin & Michael Jacobs
International Human Rights and the Role of the United States [citation] William A. Fletcher
Critical Condition: Using Asylum Law to Contest Forced Medical Repatriation of Undocumented Immigrants [citation] Kendra Stead
Public Wrongs and Private Rights: Limiting the Victim’s Role in a System of Public Prosecution [citation] Danielle Levine
Free Exorcise Clause? Whether Exorcism Can Survive the Supreme Court’s—”Smith Neutrality” [citation] Cynthia Koploy
The Right to Exclude in the Shadow of the Cathedral: A Response to Parchomovsky and Stein [citation] Eric R. Claeys
Ricci v. Destefano: End of the Line or Just Another Turn on the Disparate Impact Road? [citation] Charles A. Sullivan

On the Colloquy: The Credit Crisis, Refusal-to-Deal, Procreation & the Constitution, and Open Records vs. Death-Related Privacy Rights


This summer started off with a three part series from Professor Olufunmilayo B. Arewa looking at the credit crisis and possible changes that would focus on averting future market failures, rather than continuing to create regulations that only address past ones.  Part I of Prof. Arewa’s looks at the failure of risk management within the financial industry.  Part II analyzes the regulatory failures that contributed to the credit crisis as well as potential reforms.  Part III concludes by addressing recent legislation and whether it will actually help solve these very real problems.

Next, Professors Alan Devlin and Michael Jacobs take on an issue at the “heart of a highly divisive, international debate over the proper application of antitrust laws” – what should be done when a dominant firm refuses to share its intellectual property, even at monopoly prices.

Professor Carter Dillard then discussed the circumstances in which it may be morally permissible, and possibly even legally permissible, for a state to intervene and prohibit procreation.

Rounding out the summer was Professor Clay Calvert’s article looking at journalists’ use of open record laws and death-related privacy rights.  Calvert questions whether journalists have a responsibility beyond simply reporting dying words and graphic images.  He concludes that, at the very least, journalists should listen to the impact their reporting has on surviving family members.


On the Colloquy: Military Sexual Status Regulation, Artificial Intelligence, Black Holes, and more…


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.