By Megan Backer. Full text here. John Doe was born an orphan.  His life changed immediately when Steven Lofton adopted him.  But John has no assurance that the State will allow him to remain with his family.  Although John calls his foster father “Dad,” that will never be Steven Lofton’s legal title.  John’s foster father is…

By Peter J. Smith. Full text here. In response to Anti-Federalist complaints that the Constitution was dangerous because it was ambiguous, James Madison and Alexander Hamilton argued that judges would construe the Constitution in the same manner that they construed statutes, and in the process would fix the meaning of ambiguous constitutional provisions.  In other words,…

By David A. Hoffman. Full text here. How and when do courts determine that corporate disclosures are actionable under the federal securities laws?  The applicable standard is materiality: would a (mythical) reasonable investor have considered a given disclosure important.  Through empirical and statistical testing of approximately 500 cases analyzing the materiality standard, Professor Hoffman concludes…

By Paul H. Robinson & Robert Kurzban. Full text here. The common wisdom among criminal law theorists and policy makers is that the notion of desert is vague and subject to wide disagreement. Yet the empirical evidence in available studies, including new studies reported here, paints a dramatically different picture. While moral philosophers may disagree on…

By Brandon L. Garrett. Full text here. The advent of DNA testing technology almost two decades ago transformed how courts review claims of innocence. Our system discarded rules of finality that traditionally barred most post-conviction claims of innocence. In recent years, almost every state has enacted post-conviction DNA statutes, which I survey here. Yet our criminal…

By Mary-Rose Papandrea. Full text here. The reporter’s privilege is under attack, and “pajama-clad bloggers” are largely to blame. Courts and commentators have argued that because the rise of bloggers and other “citizen journalists” renders it difficult to define who should be considered a reporter entitled to invoke the privilege, the continued existence of the…

By James G. Dwyer. Full text here. Major federal legislation since the mid-90s has embodied a philosophical shift away from trying to salvage grossly unfit parents and toward ensuring children good families before they incur permanently damaging abuse, neglect, or foster care drift. That legislation has created a widespread perception that the state is now more…

By Ross E. Davies. Full text here. The conventional view is that the constitutional mandate that “[t]he judicial power of the United States shall be vested in one supreme Court” precludes legislation creating some sort of back-up Court. This reading is rooted in the idea that the word “one” in “one supreme Court” must be read…