Category Archives: Articles

Why Do Europeans Ban Hate Speech? A Debate Between Carl Loewenstein and Robert Post by Robert A. Kahn

European countries restrict hate speech, the United States does not. This much is clear. What explains this difference? Too often the current discussion falls back on a culturally rich but normatively vacant exceptionalism (American or otherwise) or a normatively driven … Continue reading

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The Candor Factor: Does Nominee Evasiveness Affect Judiciary Committee Support for Supreme Court Nominees?

Are members of the Senate Judiciary Committee more likely to vote in favor of Supreme Court nominees who are candid and forthcoming during their confirmation hearings? Based on a line by line content analysis of every hearing transcript since 1955, … Continue reading

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The Significance of the Shift Toward As-Applied Challenges in Election Law

Election law is experiencing immense change. The Supreme Court’s recent approach to election law cases has significant implications for the scope of the right to vote and the meaning of political participation and self-governance. This Article examines the importance of … Continue reading

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Pro Bono Publico in a Parallel Universe: The Meaning of Pro Bono in Solo and Small Law Firms

The organized bar is increasingly providing pro bono legal assistance to the more than fifty million people of limited means in the United States. 1 In 2008, the 200 highest grossing law firms in the United States contributed a record … Continue reading

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Facts Do Matter: A Reply to Bagenstos

Before the ink had dried on our critical assessment of new empirical research on implicit bias, 1 Professor Samuel Bagenstos had critiqued our critique. 2 Unfortunately, Bagenstos resorted to an old rhetorical gambit: refute a caricature of an opponent’s position … Continue reading

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RIGHTS OF THE DEAD

Many legal rules suggest that the dead do not have rights. Often, the dead cannot marry, 1 divorce, or vote. The executor of an estate cannot sue for the libel or slander of a deceased person. And the right to … Continue reading

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Enforcing Self-Regulatory Organization’s Penalties and the Nature of Self-Regulation

Few issues are as poorly understood and under-theorized as the concept of “industry self-regulation.” The Second Circuit recently raised important issues about the nature of such self-regulations when it held that the industry’s self-regulatory agency, the Financial Industry Regulatory Authority … Continue reading

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Intervention of Right in Judicial Proceedings to Review Informal Federal Rulemakings

The codification of the Federal Rules of Civil Procedure in 1938 (the “Federal Rules”) created not only a more transactional approach to litigation, but also the flexible party structure that was necessary for “public law litigation” to flourish. Indeed, many … Continue reading

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The Rise of Institutional Law Practice

For generations, the legal profession has assumed that only individual lawyers practice law. Ethical standards have been largely, if not exclusively, directed at individuals, and practice organizations have been regulated to prevent limiting individual lawyer professional judgment. The world in … Continue reading

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Faulkner’s Voting Rights Act: The Sound and Fury of Section Five

In its most recent examination of the Voting Rights Act (the “VRA”), the Supreme Court told a story about the South. Although the Court ultimately did not rule on the continued constitutionality of section 5, the VRA provision that singles … Continue reading

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