Category Archives: Ideas

Executive Power, the Commander in Chief, and the Militia Clause

One of the great constitutional struggles in the United States depends on our vision of government. In dealing with that question in connection with the issues of federalism, the prevailing modern wisdom since the 1937 term of the Supreme Court … Continue reading

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Why We Need a Federal Reporter’s Privilege

Over the past year, I have publicly criticized members of the press for overstating their First Amendment rights and New York Times reporter Judith Miller for refusing to abide by the rule of law. When journalists disregard lawful court orders … Continue reading

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The Community Dimension of State Child Protection

The other day I had a conversation with a civil liberties lawyer about racial inequities in the child welfare system, the institution charged with protecting children from abuse and neglect. America’s child welfare system is marked by pronounced and disturbing … Continue reading

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Kelo and the Local Political Process

Most of the commentary on the recent decision in Kelo v. City of New London, in which the Supreme Court upheld a municipality’s right to condemn private land for economic development, has focused on the substantive rights allocated by the … Continue reading

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The Crimes of Crime Labs

In November 2005, a man was convicted in New York City for a thirty-two-year-old rape. The circumstances were quite unusual, even for cold cases. The original 1974 trial had ended in a hung jury, and the defendant had jumped bail … Continue reading

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Discovering the Logic of Legal Reasoning

The rule of law rests on the quality of legal reasoning. The rule of law requires that similar cases should be decided similarly, that each case should be decided on its merits, and that decision-making processes should comply with applicable … Continue reading

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The Five Elements of Negligence

After centuries of glacial development in the English forms of action, negligence law in America began to take shape during the 1830s and 1840s as a general theory of liability for carelessly caused harm. Conveniently (if roughly) dated to Chief … Continue reading

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The Case for Specially Compensating the Victims of Terrorist Acts: An Assessment

It is a bleak fact of life that the overriding political focal point of this still-young century has been terrorist activity. For the United States, of course, the defining moment was 9/11. In many parts of the third world, terrorist … Continue reading

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Contract Formalism, Scientism, and the M-word: A Comment on Movsesian’s Under-theorization Thesis

Professor Mark Movsesian has proposed an interesting thesis on the similarities and differences between classical and contemporary contract formalism. 1 He compares the work of Samuel Williston, exemplifying the classical formalism of the early twentieth century, with contemporary contract formalism, … Continue reading

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Reading Back, Reading Black

Allow me a critical gesture. More specifically, taking to heart the offer to put forth an Idea, allow me to suggest a way of reading the law. I am not suggesting a reading that is exclusivist. However, I am suggesting … Continue reading

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