Article
The Political Fourth Amendment
The Political Fourth Amendment builds on Justice Ginsburg’s recent dissent in Herring v. United States to argue for a “more majestic conception” of the Fourth Amendment focused on protecting political liberty. To put the point dramatically, we misread the Fourth Amendment when we read it exclusively as a criminal procedure provision focused entirely on either regulating police or protecting privacy. In order to see the Fourth Amendment as contributing to…
Article
Just Negotiation
Rebecca Hollander-Blumoff
This Article argues that the procedural justice—that is, fairness of process—plays a critical and largely unexamined role in legal negotiation, encouraging the acceptance of and adherence to negotiated agreements. An economic focus has dominated prior work on legal negotiation and has largely touted the importance of negotiated outcome rather than process. This Article marshals theoretical support for the role that procedural justice may play in bilateral legal negotiation and supports…
Article
ERISA & Uncertainty
Brendan S. Maher and Peter K. Stris
In the United States, retirement income and health insurance are largely provided through private promises made incident to employment. These “benefit promises” are governed by a statute called ERISA, which many health care and pension scholars argue is the cause of fundamental problems with our nation’s health and retirement policy. Inevitably, however, they advance narrowly tailored proposals to amend the statute. This occurs because of the widely held view that…
Commentary
Elena Kagan Can’t Say That: The Sorry State of Public Discourse Regarding Constitutional Interpretation
Neil J. Kinkopf
Written in the form of a fictional memo by Counsel to the President, Ray Politik, this commentary offers a reply to a fictional opening statement for Justice Kagan’s confirmation hearing. The proposal argues that Justice Kagan’s statement is strategically misguided and should not be understood as a “teaching moment”. The commentary argues that conservatives have succeeded in cementing the idea that there are two types of judges: the liberal, activist…
Commentary
A Reply to Elena Kagan Can’t Say That: The Sorry State of Public Discourse Regarding Constitutional Interpretation
Eric J. Segall
Written in the form of a fictional memo by Elena Kagan to the President of the U.S., this commentary offers a reply to the fictional memo by the President’s Counsel arguing that the President should not allow Justice Kagan to proceed with her remarks. The memo concedes the Counsel’s view that conservatives have succeeded in establishing the view that there are two types of judges: the liberal, activist and the…
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What Elena Kagan Could Have and Should Have Said (and Still Have Been Confirmed)