Exclusive Legal Workshop Editorial

A Cautionary Note to Readers of Professor Volokh’s “Cautionary Note”

Pratheepan Gulasekaram - Santa Clara University School of Law

[Editor's note: This comment is in response to a comment by Professor Eugene Volokh on following law review article: Pratheepan Gulasekaram, "The People" of the Second Amendment: Citizenship and the Right To Bear Arms, 85 N.Y.U. L. REV. 1521 (2010). Professor Volokh's comment is also available on the Legal Workshop.]… Read More »

A Cautionary Note for Readers of “The People” of the Second Amendment: Citizenship and the Right To Bear Arms

Eugene Volokh - UCLA School of Law

[Editor's note: This comment is in response to the following law review article: Pratheepan Gulasekaram, "The People" of the Second Amendment: Citizenship and the Right To Bear Arms, 85 N.Y.U. L. REV. 1521 (2010). Professor Gulasekaram's response is also available on the Legal Workshop.]
I read with interest “The People”… Read More »

The Perils of Over-Constitutionalizing the Law: A Reply to Professor Epstein

Jonathan F. Mitchell - George Mason University School of Law

The Supreme Court deems itself powerless to reverse a state supreme court solely on state-law grounds. As a result, whenever anyone asks the Supreme Court to review a state court’s ruling, the litigants and justices proceed as though the only options are to reverse on federal constitutional grounds or allow… Read More »

Tradition and Equal Protection

Kim Forde-Mazrui - University of Virginia School of Law

A central point of contention in the debate over same-sex marriage is the importance of preserving tradition. The Article on which this post is based evaluates the role of tradition as a justification for laws challenged on equal protection grounds, focusing on laws that limit marriage to opposite-sex couples. The Article… Read More »

Preventing the Misuse of Preventive Adjudication: A Response to Bray

Henry Smith - Harvard Law School

Henry E. Smith
Samuel Bray’s recent article in the University of Chicago Law Review proposes an innovative category—preventive adjudication—to capture how courts minimize the harm from legal uncertainty. In preventive adjudication, the court issues no command to the parties, applies a prospective remedy only, and applies the law to a given… Read More »

Plant Closures Cause Job Loss

David M. Driesen - Syracuse University College of Law

David M. Driesen
[This is the third post in a three-part response to Jonathan S. Masur and Eric A. Posner, Against Feasibility Analysis, 77 U Chi L Rev 657 (2010).]

Because plant closures cause job loss, any cost-benefit analysis (CBA) that counts job loss as a consequence relevant to overall well-being… Read More »

Bring on the Heavy Constitutional Artillery: A Brief Response to Professor Mitchell’s Reconsidering Murdock

Richard A. Epstein - New York University Law School

In his recent article in The University of Chicago Law Review, Reconsidering Murdock: State-Law Reversals as Constitutional Avoidance, Professor Jonathan Mitchell has challenged one of the bedrock principles of federal jurisdiction. His thesis is that, in limited cases, the United States Supreme Court should take it upon itself to review certain… Read More »

How Cost-Benefit Analysis Incorporates and Worsens Feasibility Analysis’s Flaws

David M. Driesen - Syracuse University College of Law

Jonathan Masur and Eric Posner’s neglect of key normative arguments (discussed in my previous post) stems in part from a preoccupation with flaws in the agency practice of feasibility analysis. I agree with Masur and Posner’s characterization of that practice as less than wholly satisfactory and suggested as much in an… Read More »

A Modest Normative Case for Feasible Regulation

David M. Driesen - Syracuse University College of Law

In spite of Jonathan Masur and Eric Posner’s promise to unmask the normative commitments underlying feasibility analysis, their new article, Against Feasibility Analysis, fails to confront key normative arguments about the tendency of widely distributed regulatory costs to render trivial the individual impact on consumers of even high aggregate costs or… Read More »

Accounting for the Limitations of Congress’s Enforcement Power: A Response to Regulating Privatized Government through § 1983

Alexander Reinert Benjamin N. Cardozo School of Law

Richard Frankel’s argument in Regulating Privatized Government through § 1983 is compelling. It is well grounded in history, doctrine, and policy, and the desire to expand liability for private violations of constitutional rights is sure to be appealing to those of us who have litigated civil rights claims on behalf of individuals.… Read More »