most recent articles

Todd A. Berger *

Some years ago in a courtroom in Philadelphia, I found myself in a rather troubling predicament. My client threatened to stab me with a pen. I was his defense attorney. My client had been charged with a gunpoint robbery. He was picked out of a random photo array by the complainant a few days after the incident occurred. If we lost the trial, he was going to receive a sentence of at least ten to twenty years in prison.

Michael D. Cicchini *

Lawrence T. White **

The Constitution protects a criminal defendant from conviction unless the government can prove guilt beyond a reasonable doubt. However, the Constitution does not require that trial courts use any particular set of words when defining reasonable doubt for the jury. Instead, a broad range of jury instructions have been deemed constitutionally acceptable, provided they do not diminish or dilute the government‘s high burden of proof.

Scott D. Gerber *

I was flattered to be invited to participate in a February 21, 2014, symposium at the University of Chicago Law School sponsored by the Midwest Black Law Students Association about “Affirmative Action: Past, Present & Future.” The organizers said that they invited me because they thought I would say something different from my colleagues at the event. They were correct. After all, academia is dominated by the Left, and racial preferences are the sacred cow of the Left, whereas I am a libertarian who sincerely believes that racial preferences are unconstitutional. More importantly, Clarence Thomas thinks they are unconstitutional, and he is coming closer with each passing Term to convincing a majority of his colleagues on the U.S. Supreme Court of this fact.

Nancy M. Modesitt *

Whistleblowing cases have continued to increase in number in recent years as state and federal legislatures have added protections for employees who disclose illegal or wrongful activity by their employers.1 But even as the number of cases continues to climb, cohesive and coherent doctrines applicable in whistleblowing litigation have failed to emerge. A significant reason for this is that much of whistleblower protection is statutory in nature, and federal statutes vary greatly from state statutes, even as state statutes differ. A second reason is that courts have drawn upon doctrines developed under Title VII of the Civil Rights Act of 1964 in deciding whistleblowing cases, and Supreme Court decisions as well as statutory amendments have frequently altered legal standards in these cases. And a third reason is that there are overlapping common law and statutory protections, which result in the potential for different whistleblowing doctrines to develop, even within a single state.

Carl Tobias*

Scholars and politicians who closely track the federal judicial selection process appreciate that confirmations slow and ultimately halt over presidential election years, a phenomenon which has greater salience in a chief executive’s last administration. That policy comprises numerous strands. Important are the conventions—which have permitted the approval of many superb, uncontroversial district court nominees routinely through the fall of most presidential election years and in certain lame duck sessions—while allowing a number of capable, mainstream appellate nominees to manage consideration until the August Recess. The traditions derive from respect for voters’ preferences expressed in the elections, the incoming chief executive, who should have the opportunity to fill vacant judicial posts, and new senators, who must discharge their constitutional responsibility to provide advice and consent on selections.

Dov Waisman*

Two major approaches to regulating industrial health risks have emerged over the past fifty or so years. Feasibility analysis—the approach required by parts of the Clean Air Act of 1970 (Clean Air Act), the Clean Water Act of 1972 (Clean Water Act), and the Occupational Safety and Health Act of 19704 (OSH Act)—says to reduce risks to the maximum extent possible without threatening the existence or competitive stability of the regulated industries. By contrast, cost-benefit analysis (CBA)—the approach that has dominated regulatory policy since the Reagan administration—says to reduce risks to the point at which net social benefits would be maximized, that is, to invest in risk reduction up to (but not beyond) the point at which further investment would cost more than it would save in accident costs.

Dustin Knight

The right of exclusivity powers the engines of innovation within the United States. Patent law is designed to reward the inventor with a monopoly over his or her creation. The scope of the monopoly a patent holder enjoys, however, has historically been limited in time and space to control its anticompetitive effect. The exhaustion doctrine is a key tool used by courts to police this effect and protect consumers.

Rachel Willer

In the pilot of her television show Girls, Lena Dunham satirizes unpaid internships by depicting the protagonist, Hannah Horvath, asking her employer to pay her after more than a year of unpaid work.1 Her employer responds with a quip about the competitive nature of her internship at a New York publishing firm and distinguishes her from another employee who the firm hired after a year of interning. While flagrant violations of U.S. labor laws are breezed over as a matter of comedic relief in today‘s media, they represent very real controversies for nearly a million unpaid interns every year.