Forum
The Eighth Amendment’s Time to Shine: Previewing Florida’s Imminent Constitutional Crisis in Capital Punishment
Melanie Kalmanson
Abstract In April 2023, Florida Governor Ron DeSantis enacted legislation that lowers the jury vote necessary to impose a sentence of death in the state to 8–4. The new statute removes the procedural safeguards that were implemented after the U.S. Supreme Court held in 2016 that Florida’s capital sentencing scheme violated defendants’ right to jury […]
When Saying Gay Is No Longer Sufficient: Response to Marie-Amélie George’s Expanding LGBT
Aníbal Rosario Lebrón
Abstract Response to Marie-Amélie George, Expanding LGBT In her article, Expanding LGBT, Professor George attempts to provide a framework beyond incrementalism and radicalism to think about how U.S. LGBT organizations can reformulate their missions and advocacy efforts to benefit queer individuals. She argues that doing so will not only better the lives of queer non-binary, […]
Bespoke, Tailored, and Off-The-Rack Bankruptcy: A Response to Professor Coordes’s ‘Bespoke Bankruptcy’
Christopher D. Hampson
Response to Laura N. Coordes, Bespoke Bankruptcy Abstract Toward the end of every semester that I teach bankruptcy, I let my students vote on which “non-traditional” insolvency regimes they would like to study, including municipal bankruptcy, sovereign bankruptcy, and financial institutions. What I am really trying to do is convey to the students that the […]
Reparations for Gentrification?: A Response to Professor Infranca’s ‘Differentiating Exclusionary Tendencies’
Ken Stahl
Abstract Response to John Infranca, Differentiating Exclusionary Tendencies Professor John Infranca’s important article, Differentiating Exclusionary Tendencies, takes on one of the most difficult questions in local politics today. The status quo in every area entrusted to local governments—housing, transportation, schools, policing—practically by definition has disproportionately negative impacts on the most disadvantaged and marginalized members of […]
Residents Against Housing: A Response to Professor Infranca’s ‘Differentiating Exclusionary Tendencies’
Lee Anne Fennell
Abstract Response to John Infranca’s, Differentiating Exclusionary Tendencies Incumbent residents routinely oppose residential development. Interestingly, this is true of both homeowners and renters, if for opposite reasons. Homeowners typically worry that new housing will cause the market value of their own homes to fall, resulting in a hit to what is usually a house-heavy personal […]
Expanding the Frame: Using Masculinities Analyses to Challenge Gender and Race Hierarchy
Nancy E. Dowd
Abstract Response to Professor Bailey, Male Same-Sex “Horseplay”: The Epicenter of Sexual Harassment? Kimberly Bailey’s fascinating article, Male Same-Sex “Horseplay”: The Epicenter of Sexual Harassment?, seeks to expose and to further analyze harassment of women by paying attention to the patterns and meaning of male-male harassment between straight men. By the sophisticated use of masculinities […]
Ethical Duties of Class Counsel Also Representing Class Representatives
Nancy J. Moore
Abstract Response to Bruce A. Green & Andrew Kent’s, May Class Counsel Also Represent Lead Plantiffs? In their excellent article entitled May Class Counsel Also Represent Lead Plaintiffs?, Professors Bruce Green and Andrew Kent explore a particular aspect of two broader questions I have also addressed: (1) who should regulate class action lawyers; and (2) […]
Enforcing the Fiduciary Duties of Class Representatives
Andrew S. Pollis
Abstract Response to Bruce A. Green & Andrew Kent’s, May Class Counsel Also Represent Lead Plaintiffs? Professors Bruce A. Green and Andrew Kent have drawn much-needed attention to ethical issues that can arise when class-action lawyers simultaneously represent named individual plaintiffs and putative or certified classes. They analyze three scenarios of potential conflict for which […]
Agents and Advisors
Deborah A. DeMott
Abstract Response to Arthur B. Laby’s, Advisors as Fiduciaries In a recent article, Advisors as Fiduciaries, Professor Arthur Laby examines the roles of advisors in multiple contexts and elaborates justifications for whether and when advice-giving does (and should) trigger the imposition of a suite of distinctively fiduciary duties of care and loyalty. Professor Laby’s article […]
Systemic Power, Critical Interest, and Fiduciary Relationship
Robert J. Rhee
Abstract Response to Arthur B. Laby’s, Advisors as Fiduciaries Professor Arthur Laby’s Advisors as Fiduciaries makes a significant contribution to our understanding of fiduciaries. It should be required reading in this area of law. The dominant view of a fiduciary relationship is based on discretionary authority. But this view, Professor Laby argues, is incomplete because […]
“Shall Not Be Construed”: Reversal of Supreme Court Decisions by Constitutional Amendment
John v. Orth
Abstract This Article considers the way in which small changes of wording can signal large changes of thought in the United States Constitution (Constitution). Drawing upon examples found in the Eleventh and Sixteenth Amendments, and in the Reconstruction Amendments, the Article shows that there are two ways to reverse a U.S. Supreme Court decision by […]
Smart Meters as a Catalyst for Privacy Law
Matthew Tokson
Abstract Response to Matthew B. Kugler & Meredith Hurley, Protecting Energy Privacy Across the Public/Private Divide Smart utility meters raise several puzzling legal questions and answering them can help point the way toward the future of Fourth Amendment and civil privacy law. More than any other current technology, smart meters compel the development of use […]
Algorithmic Inclusion
Eldar Haber
Abstract Response to Peter Yu, The Algorithmic Divide and Equality in the Age of Artificial Intelligence Artificial Intelligence (AI) is expected to dramatically change humanity. From the automation of daily tasks and labor, to curing diseases and handling disasters, many forecast that human beings will soon begin enjoying the benefits of AI technology within many […]
Recognizing the Criminal/Civil Divide in the Use of Energy Data
Alexandra B. Klass & Elizabeth J. Wilson
Abstract Response to Professor Matthew Kugler and Meredith Hurley, Protecting Energy Privacy Across the Public/Private Divide In their 2020 Article, Protecting Energy Privacy Across the Public/Private Divide, Professor Matthew Kugler and recent law school graduate Meredith Hurley express concern that the “smart home” revolution poses dangerous privacy risks to homeowners who do not realize that […]
All Alone in Arbitration
David Horton
Abstract Response to Hila Keren, Divided and Conquered: The Neoliberal Roots and Emotional Consequences of the Arbitration Revolution To put it mildly, the relationship between the Federal Arbitration Act (FAA)and class actions is controversial. Since 2010, the U.S. Supreme Court has decided a rash of cases that make it impossible for the millions of consumers […]
If it Ain’t Broke, Don’t Fixate on it: Gadamer, Gedicks, and Original Public Meaning
Michael C. Dorf
Abstract Response to Frederick Mark Gedicks, The “Fixation Thesis” and Other Falsehoods In The “Fixation Thesis” and Other Falsehoods, Professor Frederick Mark Gedicks argues that public meaning originalists are mistaken in their claim that the Constitution today means just what it meant when it was adopted. Unlike living constitutionalists who say that the document’s meaning […]
Dividing, Conquering — And Resisting
Kathryn Abrams
Abstract Response to Hila Keren, Divided and Conquered: The Neoliberal Roots and Emotional Consequences of the Arbitration Revolution It is a pleasure to have the opportunity to reflect on Professor Hila Keren’s article, “Divided and Conquered: The Neoliberal Roots and Emotional Consequences of the Arbitration Revolution.” This extraordinary piece reads less like a law review […]
Restoring Federal Takings Claims
Shelley Ross Saxer
Abstract Response to Stewart E. Sterk & Michael C. Pollack, A Knock on Knick‘s Revival of Federal Takings Litigation. As Professors Sterk and Pollack noted, “many have cheered” the United States Supreme Court’s holding in Knick v. Township of Scott that overruled the second prong of Williamson County’s ripeness test. Litigants challenging state or local […]
The Normality of Knick: A Response to Sterk and Pollack
Ilya Somin
Abstract Response to Stewart E. Sterk & Michael C. Pollack, A Knock on Knick‘s Revival of Federal Takings Litigation. The Supreme Court’s decision in Knick v. Township of Scott, has been criticized for supposedly wreaking havoc on the normal system for adjudicating takings claims, and for seriously violating norms of stare decisis. Stewart Sterk and Michael […]
Border Searches in a Digital Age: Finding Alignment Amidst a Diluted Right
Anne L. Kelley
Abstract Searches of electronic devices at the border present a sui generis situation that distinguishes them from traditional border searches of other physical property, such as a backpack, car, or piece of luggage. The traditional border search doctrine framework has challenged federal courts with regard to how to categorize searches of electronic devices at the […]
Diagnosing the Ills of American Monument-Protection Laws: A Response to Phelps and Owley’s Etched in Stone
Zachary Bray
Abstract Response to Jess Phelps and Jessica Owley, Etched in Stone: Historic Preservation Law and Confederate Monuments. As in their other work, Jess Phelps and Professor Jessica Owley provide this sort of vision in Etched in Stone: Historic Preservation Law and Confederate Monuments (“Etched in Stone”), their recently-published Article in the Florida Law Review. In […]