The Death of FISA
By William C. Banks. Full text here.
Continue Reading"Macro-Transparency" as Structural Directive: A Look at the NSA Surveillance Controversy
By Heidi Kitrosser. Full text here.
Continue ReadingThe Political Constitution of Emergency Powers: Some Lessons from Hamdan
By Mark Tushnet. Full text here.
Continue ReadingIntroductory Essay, Political Constraints on Supreme Court Reform
By Adrian Vermeule. Full text here.
Continue ReadingThe Police Power Revisited: Phantom Incorporation and the Roots of the Takings "Muddle"
By Bradley C. Karkkainen. Full text here. Lingle v. Chevron U.S.A., Inc. exposed a deep flaw in regulatory takings doctrine. Lingle rejected the Agins holding that if a regulation does not “substantially advance a legitimate state interest,” it is a compensable taking. That formulation, Lingle said, was based on substantive due process precedents and is better…
Continue ReadingReformulating the Miranda Warnings in Light of Contemporary Law and Understandings
By Mark A. Godsey. Full text here. Since Miranda v. Arizona was decided in 1966, scholars have devoted much attention to both the theoretical underpinnings and the real world impact of that decision. Little attention, however, has been paid to the substance or content of the warnings. The Supreme Court has often stated that the Miranda…
Continue ReadingGovernment Regulation of Irrationality: Moral and Cognitive Hazards
By Jonathan Klick & Gregory Mitchell. Full text here. Behavioral law and economics scholars who advance paternalistic policy proposals typically employ static models of decision-making behavior, despite the dynamic effects of paternalistic policies. This Article considers how paternalistic policies fare under a dynamic account of decision making that incorporates learning and motivation effects. This approach brings…
Continue ReadingThe Need for Mead: Rejecting Tax Exceptionalism in Judicial Deference
By Kristin E. Hickman. Full text here. This Article takes the controversial position that Treasury regulations are entitled to judicial deference under the Chevron doctrine, as clarified by the Supreme Court in the more recent Mead case, whether those regulations promulgated pursuant to specific authority delegated in a substantive provision of the Internal Revenue Code…
Continue ReadingNote: Meet Me at the (West Coast) Hotel: The Lochner Era and the Demise of Roe v. Wade
By Jason A. Adkins. Full text here. Long-standing constitutional precedents can be overturned when the original holdings have become “unworkable.” This principle, first articulated in Planned Parenthood of Southeastern Pennsylvania v. Casey and repeated by now-Chief Justice Roberts in his confirmation hearings, provides a creative means for overturning the most controversial precedent of all: Roe…
Continue ReadingSubstantive Due Process as a Source of Constitutional Protection for Nonpolitical Speech
By Gregory P. Magarian. Full text here. Present First Amendment doctrine presumptively protects anything within the descriptive category “expression” from government regulation, subject to balancing against countervailing government interests. As government actions during the present War on Terrorism have made all too clear, that doctrine allows intolerable suppression of political debate and dissent—the expressive activity most…
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