This Article considers a question rarely addressed: What is the role of the lawyer in a manifestly unjust procedural regime? Many excellent studies have considered the role of the judge in unjust regimes, but the lawyer’s role has been largely ignored. The analysis in this Article draws on two case studies: that of lawyers representing civil rights leaders during protests in Alabama in the 1950s...
A “Standard Clause Analysis” of the Frustration Doctrine and the Material Adverse Change Clause
In the darkest depths of a corporate merger agreement lies the MAC clause, a term that permits the acquirer to walk away from a transaction if, between signing and closing, the target company experiences a “Material Adverse Change.” Multibillion-dollar deals rise or fall based on the anticipated interpretation of a MAC clause, and invocation of the clause in a sensitive transaction could trigger...
Coercive Discovery and the First Amendment: Towards a Heightened Discoverability Standard
This Comment addresses whether the First Amendment restricts a litigant’s or the government’s ability to compel disclosure of information about protected First Amendment activities. In evaluating whether such speech-related information may be subpoenaed, courts have struggled to balance a speaker’s right to anonymous or confidential speech with the evidentiary needs of prosecutors or plaintiffs...
Volume 57, Issue 4
Volume 57, Issue 2
The Unexceptionalism of “Evolving Standards”
Conventional wisdom is that outside the Eighth Amendment, the Supreme Court does not engage in the sort of explicitly majoritarian state nose-counting for which the “evolving standards of decency” doctrine is famous. Yet this impression is simply inaccurate. Across a stunning variety of civil liberties contexts, the Court routinely—and explicitly—determines constitutional protection based on...
Unborn & Unprotected: The Rights Of The Fetus Under § 1983
When the action of a state agent results in the deprivation of the federal rights of any “person” within the jurisdiction of the United States, that person may bring a civil action under 42 U.S.C. § 1983. In Roe v. Wade, the Supreme Court held that a fetus is not a constitutional “person.” As a result, an unborn child injured by a state agent may not raise a claim under § 1983. This result...
The (Constitutional) Convention on IP: A New Reading
All have thus far considered the Constitutional Convention’s record on intellectual property puzzling and uninformatively short. This Article revisits that conventional wisdom. Using various methods of analysis, including a statistical hypotheses test, it solves historical puzzles that have long accompanied the events at the Convention leading to the framing of the IP Clause, and shows that...