The Institutional Dynamics of Transition Relief

Jonathan Masur & Jonathan Nash

In this Article, we consider what type of institution should provide legal transition relief and analyze the form that it should take. These questions are of great importance because the issue of legal transition relief—whether and how an institution should compensate parties because a change in the law adversely affects them—arises any time a new legal regime would render illegal behavior that societal actors previously have engaged in legally. Relief from legal transitions can assume many forms. Transition relief may allow societal actors already engaging in the behavior in question to continue to do so (at least to some degree) on a going-forward basis, often called “grandfathering.” Or, it may offer them some form of monetary or other compensation for the loss of that ability. Transition relief can benefit—and, conversely, its absence can harm—producers, consumers, employees, and investors. To mention just two contemporary examples, both greenhouse gas regulation (at both… Read More »

Through a Scanner Darkly: Functional Neuroimaging as Evidence of a Criminal Defendant’s Past Mental States

Teneille Brown & Emily Murphy

As with phrenology and the polygraph, society is again confronted with a device that the media claims to be capable of reading our minds. Functional magnetic resonance imaging (“fMRI”), along with other types of functional brain imaging technologies, is currently being introduced at various stages of criminal trials as evidence… Read More »

Partial Unconstitutionality

Kevin C. Walsh - University of Richmond School of Law

What do some Reconstruction-Era civil rights laws, the first federal income tax, and various pieces of New Deal economic legislation have in common? These are all laws that the Supreme Court has held totally invalid after concluding that they were partially unconstitutional.
The doctrine through which the Supreme Court accomplished… Read More »

Mapped Out of Local Democracy

Michelle Anderson

Stopped in time and sealed in place.  Hundreds of high-poverty neighborhoods of color are trapped in the vestiges of rural poverty, though they sit adjacent to incorporated cities and suburbs across the country.  City growth through annexation has passed them by (though city crime may not have).  Homes lack rudimentary… Read More »

Can Bad Science Be Good Evidence: Neuroscience, Lie-Detection, and Beyond

Frederick Schauer - University of Virginia Law School

The possibility of using functional magnetic resonance imaging— fMRI, or “brain scans”—to detect deception in legal settings has generated great controversy and, indeed, widespread resistance.  Although neuroscience-based lie-detection appears to hold out the promise of improvements to existing methods of detecting deception, most academic neuroscientists have balked, insisting that the… Read More »

Applying the Fourth Amendment to the Internet: A General Approach

Orin Kerr

This Article proposes a general approach to applying the Fourth Amendment to the Internet. It assumes that courts will try to apply the Fourth Amendment to the Internet so that the Fourth Amendment has the same basic function online that it has offline. The Article reaches two major conclusions. First,… Read More »

Essay on Funding Irrationality

Adam S. Zimmerman - New York University School of Law

My article Funding Irrationality addresses a relatively unexamined issue in the literature of class action settlements and public settlement funds: should the people who oversee a large settlement fund account for claimants’ irrational settlement decisions?
Much of the literature related to large settlements seeks to improve how judges and private… Read More »

The Substance of False Confessions

Brandon Garrett -University of Virginia School of Law

The scholarship of interrogations has taken a turn from procedure to substance. The Supreme Court’s landmark criminal procedure rulings regulating modern psychological interrogations remain static, inviting lingering decades-long debates over whether the Court correctly decided decisions such as Miranda. Meanwhile, psychologists increasingly study not the legal regulation of interrogations, but… Read More »

The Riddle Underlying Refusal-to-Deal Theory

Michael Jacobs & Alan Devlin

May a dominant firm refuse to share its intellectual property (IP) with its rivals?  This question lies at the heart of a highly divisive, international debate concerning the proper application of the antitrust laws.  In this short Essay, we consider a profound, yet previously unaddressed, incongruity underlying the controversy.  Specifically,… Read More »

Embedded Aggregation in Civil Litigation

Richard A. Nagareda - Vanderbilt University Law School

In debates over civil litigation, class actions have long garnered considerable attention.  Controversy continues to rage over efforts to certify class actions in the face of objections from defendants.  Debate also swirls over their use as a vehicle for settlement, with the defendant’s consent.  All of this ferment suggests that… Read More »

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