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Volume 109 - Issue 6

Reclaiming International Law from Extraterritoriality

By Austen L. Parrish. Full text here. A fierce debate rages among leading international law theorists that implicates the role of national courts in solving global challenges. On one side of the debate are scholars who are critical of international law and its institutions. These scholars, often referred to as Sovereigntists, see international law as a…

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Note: Accepting Justice Kennedy's Challenge: Reviving Race-Conscious School Assignments in the Wake of Parents Involved

By Charles E. Dickinson. Full text here. More than half a century after Brown v. Board of Education mandated an end to racial segregation in American schools, districts nationwide remain crippled by racially homogenous classrooms and a widening achievement gap between white and minority students. Racial segregation is rising, minority student achievement is falling, and race-neutral…

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Note: Unexpected Consequences: The Constitutional Implications of Federal Prison Policy for Offenders Considering Abortion

By Claire Deason. Full text here. As many as 6,000 women are pregnant in prison in the United States. The option of abortion is particularly suited for these women, who struggle with public assistance, drug addiction, or who are at risk of losing their child to the foster system. The Bureau of Prisons policies governing abortion…

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Making Defendants Speak

By Ted Sampsell-Jones. Full text here. Criminal defendants have the constitutional right to choose between testifying and remaining silent at trial. Within that broad constitutional framework, many legal rules affect the defendant’s decision. Some rules burden testimony and encourage silence, while others burden silence and encourage testimony. There is no way for the state to be…

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Reason-Giving and Accountability

By Glen Staszewski. Full text here. This Article explains that elected officials are not politically accountable for their specific policy decisions in the manner that is typically envisioned by modern public law. It claims, however, that public officials in a democracy can be held deliberatively accountable by a requirement or expectation that they give reasoned explanations…

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The Myth of Self-Regulation

By Fred C. Zacharias. Full text here. The American legal profession is highly regulated. Lawyers are governed by state-enforced professional codes, supervised by courts, and constrained by civil liability rules, civil and criminal statutes, and administrative standards. Nevertheless, commentators and various actors in the legal system continue to conceptualize law as a “self-regulated profession.” The…

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Note: The Sartorial Dilemma of Knockoffs: Protecting Moral Rights without Disturbing the Fashion Dynamic

By Margaret E. Wade. Full text here. As soon as fashion models hit the runway, copycat designers snap photos and quickly replicate the original designs, flooding the market with nearly identical, discount versions of the original garments. In response to this phenomenon of fashion piracy, members of the fashion design community have been advocating for a…

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Note: Who Are They to Judge?: The Constitutionality of Delegations by Courts to Probation Officers

By Mark Thomson. Full text here. In order to promote judicial economy, Article III courts routinely delegate decisionmaking authority to probation officers. Probationers increasingly challenge those delegations as violating the Constitution’s command that only Article III judges shall exercise “the Judicial power.” Courts apply either of two standards when evaluating the constitutionality of judicial delegations to…

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Public Choice and International Law Compliance: The Executive Branch Is a "They," Not an "It"

By Neomi Rao. Full text here. This Article presents a public choice analysis of how the executive branch in the United States determines questions of compliance with international law. In contrast to traditional theories that treat the state as a unitary entity, the public choice approach examines the different interests and incentives of the many executive…

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Beyond Crime and Commitment: Justifying Liberty Deprivations of the Dangerous and Responsible

By Kimberly Kessler Ferzan. Full text here. The traditional approaches to dangerous persons are crime and commitment. The criminal law punishes responsible actors, and the civil law confines the mentally ill. These approaches leave a gap: the state cannot substantially restrict the liberty of responsible actors until they have committed a crime. In response to this…

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