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…
Note

Kimbrough, Spears, and Categorical Rejection: The Latest Additions to the Family of Federal Sentencing Policy Cases

Sophia A. Vandergrift
Note

The Scope of “Plaintiffs’ Harm” in Environmental Preliminary Injunctions

Amber R. Woodward
Commentary

What Elena Kagan Could Have and Should Have Said (and Still Have Been Confirmed)

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 proposed opening statement for the confirmation hearing of the Supreme Court Justice nominee. The proposal includes a consideration of Justice Kagan’s previous comments concerning confirmation hearings and a disclosure of her views on specific constitutional questions. The commentary also addresses the tension between judicial activism and restraint, acknowledging the…
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…