CategoryDiscourse

The radical overhaul of legal education espoused in Professor Brian Tamanaha’s new, widely read book Failing Law Schools would represent a disastrous step backward in legal education. Tamanaha and his supporters argue that the current crisis in legal education—rampant unemployment among debt-laden law graduates and plummeting law-school applications—requires a dramatic reduction in law-school...

Despite the serious nature of court orders, judicial opinions can be humorous. While some decisions are funny simply because of their facts, judges have also employed puns, penned poems, cited songs, and formulated fables to convey legal conclusions creatively. Scholars and jurists debate the propriety of such humor. However, witticisms and quips continue to find their way into legal reporters...

The story of equal protection’s demise is a familiar one. It has been decades since any new group has been afforded heightened scrutiny. Even for established protected groups, retrenchment in applicable standards has devitalized meaningful equal protection coverage. As a result, scholars such as Kenji Yoshino have contended that we are at “the end of equality doctrine as we have known it”—that we...

The February 2012 killing of Trayvon Martin has slowly reignited the national conversation about race and violence. Despite the sheer volume of debate arising from this tragedy, insuffi cient attention has been paid to the potentially deadly mix of guns and implicit bias. Evidence of implicit bias, and its power to alter real-world behavior, is stronger now than ever. A growing body of research...

In Heller and McDonald, the Supreme Court recognized an individual’s constitutional right to possess a firearm in his home. This leads to an interesting question—doesn’t that right conflict with the common practice of police forcibly entering a home, without knocking and announcing their presence, when a reasonable suspicion exists that the occupant is armed? In other words, if one has a Second...

Even as it is hailed as the most significant legislative change to patent law in a half-century, some of the changes the U.S. Congress made in the Leahy-Smith America Invents Act are surprisingly equivocal. One provision captures this aspect of the Act particularly well: the pseudo-elimination of the best mode requirement. In this Essay, we develop the concern that by equivocating on the best...

Without much fanfare, at least two federal agencies—the Department of Transportation (DOT) and the Environmental Protection Agency (EPA)—have recently made changes to their cost–benefit analysis procedures.  The changes are technical and may not seem especially exciting, even to those predisposed to read regulatory impact analyses.  But they have the potential to affect substantive regulations...

Later this term the Supreme Court will decide the constitutionality of the Stolen Valor Act, which punishes anyone who falsely represents themselves to have been awarded certain military medals. Although the Court declared the crime of seditious libel inconsistent with the First Amendment long ago, the Act revives something very like that crime. The connection between the two crimes is not...

Recent adjustments by the Environmental Protection Agency (EPA) and the Department of Transportation (DOT) to their cost–benefit analysis procedures could cause tremendous changes to federal regulation. For decades, federal agencies have calculated the value of a statistical life (VSL) and have used that number when evaluating the costs and benefits of proposed regulations. If a regulation was...

William M. Carter, Jr., divides race-conscious policies into those that concretely disadvantage minorities and those that do not subordinate them at all, but merely express the policymaker’s race-consciousness. The main aim of this Article is to introduce a third category that his dichotomy excludes: race-conscious policies that amount to expressive subordination. To subordinate people...

This Essay/Book Review examines the Matthew Shardlake series by C.J. Sansom. In particular, it examines the question of whether the sixteenth-century fictional lawyer Shardlake can serve as a role model for twenty-first-century lawyers, both in terms of his ethics and his professionalism. An examination of the Shardlake series as a whole yields some uncertain answers, both as to Shardlake and as...