Irina D. Manta
A Horse is Not Always a Horse, of Course
Response to Jacqueline Lipton, Law of the Intermediated Information Exchange

It was a pleasure to read Professor Jacqueline Lipton’s piece Law of the Intermediated Information Exchange. Her ambitious project is to provide a unifying theory of cyberlaw, at the heart of which lies her proposal to reframe the field as a law of the global intermediated information exchange. Indeed, Lipton argues that what distinguishes cyberlaw from other areas is the fact that it is bound to concern itself with actions that cannot take place without one or several intermediaries, which include Internet Service Providers (ISPs) and search engines, among others. She believes that recognizing the central nature of these service providers would go a long way toward developing laws and doctrines that advance the goals of predictability and coherence.
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William Baude
Jurisdiction and Constitutional Crisis
Response to Gerard Magliocca, The Gold Clause Cases and Constitutional Necessity

Courts don’t always do what the President wants, and sometimes the President wants to fight back. As Gerard Magliocca’s interesting article points out, Presidents have a range of options for political resistance. But what about their options for legal resistance? It turns out that the Constitution provides a narrow outlet for lawfully resisting the courts, and that Roosevelt’s contingency plan for the Gold Clause Cases might even have fit within it.
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Brannon P. Denning
The Case Against Appointing Politicians to the Supreme Court
Response to Benjamin Barton, An Empirical Study of Supreme Court Justice Pre-Appointment Experience

Ben Barton’s recent paper concludes that the members of the current Court are more “cloistered and detached” than at any other point in the Court’s history. His findings are bound to renew calls for the appointment of politicians to the Court; but I argue that remedying the perceived deficit of life experience and “practical wisdom” by appointing persons currently or formerly active in partisan politics would likely not deliver the claimed benefits and might affirmatively harm the Court as an institution. Read more.

Jennifer Hendricks
The Flight From Judgment
Response to Benjamin Barton, An Empirical Study of Supreme Court Justice Pre-Appointment Experience

In their book, Practical Wisdom: The Right Way to Do the Right Thing, Barry Schwartz and Kenneth Sharpe highlight the task of sentencing a convicted criminal as quintessentially calling for practical wisdom. Wisdom, they argue, is not a transcendent state to be achieved by mystical means but a skill that must be learned and improved by practice, trial, and error. It is grounded in empathy, which is the cognitive ability “to imagine what someone else is thinking and feeling.” A person’s capacity for wisdom can be stunted by rote adherence to inflexible rules or by carrots and sticks that replace good character with a reward system. Professor Benjamin Barton’s new Article argues that the rarified and insular biographies of the current justices of the Supreme Court are ill-suited for developing practical wisdom. Read more.

Timothy P. O’Neill
The Pre-Appointment Experience of Supreme Court Justices
Response to Benjamin Barton, An Empirical Study of Supreme Court Justice Pre-Appointment Experience

Benjamin H. Barton’s recent article, An Empirical Study of Supreme Court Justice Pre-Appointment Experience, makes a significant contribution to the growing body of work that compares and contrasts the professional and educational backgrounds of the current members of the Roberts Court with their predecessors. I share Professor Barton’s concerns. Read more.

Adam Mossoff
Why History Matters in the Patentable Subject Matter Debate
Response to Michael Risch, America’s First Patents

In America’s First Patents, Michael Risch proves that nothing beats the facts when it comes to making or assessing claims about the history of patentable subject matter doctrine. Of course, one might ask why we should care about history, especially when justifying or critiquing legal rules that secure property rights in twenty-first-century innovation in high-tech computers or biotech. It’s a fair question. Read more.

Kristen Osenga
What Do America’s First Patents Have to Do With Today’s?
Response to Michael Risch, America’s First Patents

I was excited to read Michael Risch’s latest Article, America’s First Patents, in large part because he and I generally agree, especially when it pertains to the topic of patent-eligible subject matter. In this Article, Professor Risch examines patent-eligible subject matter through a unique lens—history based on early patents. Read more.

Shubha Ghosh
Razing the Funhouse?
Response to Michael Risch, America’s First Patents

Whether as a scholar or just an ordinary thoughtful person, one cannot completely ignore history. At the same time, the past is annoying, used to promote a whole host of agendas in the guise of tradition, legitimacy, respect. Michael Risch’s engaging and just plain fun article looks at America’s First Patents and asks about the relevance of history to law. Read more.

Peter D. Webster
Judges Are (and Ought to Be) Different
Response to Scott G. Hawkins, Perspective on Judicial Merit Retention in Florida

Scott Hawkins’s Perspective on Judicial Merit Retention in Florida makes a number of important points, one of which in particular warrants emphasis as Florida voters prepare to go to the polls to determine the fate of the justices and appellate judges standing for retention. The role a judge plays in our society is (and ought to be) fundamentally different from that played by a politician or other elected representative. Judges do not (and should not) have a constituency. They do not represent anyone; rather, their sole allegiance must be to the rule of law. Read more.

Joseph W. Little
Merit Retention Elections
Response to Scott G. Hawkins, Perspective on Judicial Merit Retention in Florida

Florida Bar Immediate Past President Scott Hawkins’s law review essay publishes this eye-catching fact: “90% of the participating voters do not understand what the term ‘judicial merit retention’ means.” This ignorance sends a troubling message because merit retention of appellate judges has been the law in Florida since 1976 and three supreme court justices and numerous district court judges are on the November general election ballot. Even worse, Florida voters themselves chose this method to hold appellate judges accountable instead of submitting them to periodic popular elections, which was the rule in Florida for most of its history as a state. Read more.

Martin A. Dyckman
How Florida Accepted Merit Retention: Nothing Succeeds Quite Like a Scandal
Response to Scott G. Hawkins, Perspective on Judicial Merit Retention in Florida

The wisdom of selecting judges on merit was slow to take root in the Sunshine State. It had been advocated since the 1940s, first by the Florida State Bar Association and then by the official Florida Bar, but a notoriously malapportioned, rural-dominated legislature was sterile ground. By the mid-1970s, however, circumstances had become ripe—and in a sense pungent—to accomplish in part what had seemed impossible. Read more.

Brooks Holland
Imagining the Open Road
Response to Nancy Leong, The Open Road and the Traffic Stop: Narratives and Counter-Narratives of the American Dream 

I first read a draft of Nancy Leong’s Article, The Open Road and the Traffic Stop: Narratives and Counter-Narratives of the American Dream (“Open Road”), while my law school was preparing to host a conference on race and criminal justice. To our great fortune, Professor Leong accepted our invitation to present this thoughtful paper. I now have re-read the Open Road to write this response paper while additionally considering Articles by David Segal, Stanley Fish, and others debating aspects of legal education—in particular, the role of faculty scholarship. My repeated engagements with the Open Road confirm that it contributes beautifully to legal education as the sort of scholarship praised by Professor Fish: academic inquiry into a “purposive . . . vision” for the project of law. Read more.