50:5 Removing Removal’s Unanimity Rule

Article

50:5 Neofeminism

Article

50:5 An Empirical Analysis of the Use of the Intent Test to Determine Parentage in Assisted Reproductive Technology Cases

Article

50:4 All Dogs Go To Court: The Impact of Court Facility Dogs As Comfort for Child Witnesses on a Defendant’s Right to Fair Trial

Article

50:4 Radlax Gateway Hotel, LLC v. Amalgamated Bank: Examining the Importance of Credit Bidding at Chapter 11 Asset Sales

Article

50:4 Through a Glass, Darkly: Predicting Bankruptcy Jurisdiction Post-Stern

Article

50:4 A Skeptic’s Case for Sovereign Bankruptcy

Article

50:4 Bankruptcy and It’s By-Products: A Comment On Skeel

Article

50:4 Is Bankruptcy the Answer for Troubled Cities and States?

Article

Being Honest About Chance: Mitigating Lafler v. Cooper’s Costs

Article

Legal Strategies in the Fight to End Human Trafficking

Article

50:3 In Vitro Meat: Space Travel, Cannibalism, and Federal Regulation

Comment

50:3 Packing Away the Primaries: A Proposal For More Effective Super Pac Donor Disclosure

Comment

50:3 Eggshell Minds and Invisible Injuries: Can Neuroscience Challenge Longstanding Treatment of Tort Injuries?

Comment

50:3 You Don’t Need a Weatherman to Know Which Way the Wind Blows?: An Argument For Offshore Wind Development in the Gulf Of Mexico

Comment

50:3 Delineating Sexual Dangerousness

Article

50:3 A “Common” Proposal

Article

50:3 Check Please: Using Legal Liability to Inform Food Safety Regulation

Article

What Copyright Owes the Future

Article

A Debate Two Hundred Years in the Making: Corporate Liability and the Presumption Against Extraterritoriality Under the Alien Tort Statute

Comment

Dilution [Blending] Is Not the Solution to Pollution: Questionable Revisions to Long-Standing Radioactive Waste Policies

Comment

Much Ado About Preemption

Article

The End of an Epithet? An exploration of the use of Legal Scholarship in Intellectual Property Decisions

Article

The Patent Malpractice Thicket, or Why Justice Holmes Was Right

Article

Prometheus Laboratories, Mental Steps, and Printed Matter

Article

Reforming Software Patents

Article

An Early Roll of the Dice: Appeal Under Conditional Finality in Federal Court

Article

 

Analysis of the Proposed Amendments to Federal Rule of Civil Procedure 45 Pertaining to Nonparty Subpoenas for Documents

Article

Substituted Judgment and Best Interests Analysis: Protecting the Procreative Medical Rights of the Mentally Incompetent In Texas

Article

Continued Racial Disparities in the Capital of Capital Punishment: The Rosenthal Era

Article

Bradford C. Mank, Judge Posner’s “Practical” Theory of Standing: Closer to Justice Breyer’s Approach to Standing than to Justice Scalia’s

Article

Group Deliberation and The Endowment Effect:
 An Experimental Study

Article

All For One and One For All: Informed Consent and Public Health

Article

Even Employees Are Self-Employed— Success as a Professional Takes More Than Technical Ability

Article

Whether State-Propounded Employment-Based Immigration Regulations Are Surviving Preemption Challenges—A Look at Whiting and Arizona

Article

Cyberbullying: Holding Grownups Liable For Negligent Entrustment

Article

Fast’s Four Factors: A Solution to Similarly Situated Discovery Disputes in FLSA Collective Actions

Article

Central Hudson-Plus: Why Off-Label Pharmaceutical Speech Will Find Its Voice

Article

The Ideological Origins of the Thirteenth Amendment

Article

Reconceptualizing the BP Oil Spill as Parens Patriae Products Liability

Article

Too Many Tiaras: Conflicting Fiduciary Duties in the Family-Owned Business Context

Article

To Steal or Not to Steal: An Analysis of the Computer Fraud and Abuse Act and Its Effect on Employers

Address

Education Works! How Broadcast Fleeting Expletives Stimulate Comprehensive Sex Education for Our Youth

Address

Proposal for Resolution to Challenges Posed by DNA Sequence Patents on the Development of Multiplex Genetic Tests

Address

49:1 Enforcing Against the Enforcers: Ensuring Immigration Compliance Through Civil RICO

Address

The Twilight of Responsibility: Torture and the Higher Deniability

Address

The Taint of Torture: The Roles of Law and Policy in Our Descent to the Dark Side

Address

49:1 Codes of Conduct for a Twilight War

Address

Abstract

This Article reflects on the codes of conduct the United States has devised, and has improvised, during the last ten years of the Twilight War. As the polemics have subsided and policies are regularized for the long haul, I focus only on two major issues—codes for interrogating enemy captives and the code for defining the enemy. As “legal realists” have observed, legal doctrines rarely emerge from classrooms and often not even from courts. This is then a personal history of how these legal policies took shape and evolved. But one of the most important insights to take away from this historical episode was that the advocates for the radically new codes of conduct framed the issue as a legal question—substantively and bureaucratically. Instead of framing the question around what “should” be done, carefully inventorying prior U.S. and foreign experience in detention practices and interrogations and analyzing all the pros and cons, the issue was debated as one of what “can” be done. If it does nothing else, this episode should reveal the dangers implicit in this habit of thought.

The Essay also underscores the policy and even management value of well-defined, politically sustainable guidelines for secret operations to kill enemies and deal with captives. Because the government must entrust intelligence operatives with exceptional power, a fundamental social contract forms. Such a social contract is an essential foundation to granting intelligence agencies and military departments, with thousands of employees conducting many operations around the world, extraordinary powers to intercept communications, break laws in other countries, and even use lethal force to defend the country—all in secret. When the contract is broken, trust breaks down and all sides will lose.

47:5 Proximate Retribution

Article

Abstract

An essential element of the theory of retribution has been missing from courts’ and legal scholars’ analyses. While they have outlined a number of varieties of the theory and fleshed out their nuances, courts and scholars have largely neglected to examine which harms flowing from a criminal offender’s conduct should be considered in determining that offender’s desert. The more remote harms caused by an offender’s conduct, such as the effects of his offenses on the families and friends of their victims or the effects of criminal conduct on society in general, are pervasive in communities across the nation. This Article takes a first look at this overlooked issue of the role that more remote harms should play in sentencing and asserts that accounting for these more remote harms under certain conditions would better reflect the basic tenets of harm-based retributivism—the theory at the heart of many sentencing schemes. The Article acknowledges some of the concerns that considering these harms raises and argues that a proximate causation analysis is essential to limit the harms considered in sentencing while acknowledging the full array of harms caused by criminal conduct. This notion of “proximate retribution” is necessary to rein in criminal liability under the theory.

47:5 Maturity

Article

Abstract

Across numerous areas of the law—including family law, criminal law, labor law, health law, and other fields—when children are involved, maturity determinations are pivotal to outcomes. Upon reaching maturity, however defined, an individual has access to a range of rights not previously available and is expected to fulfill certain duties. Despite the central importance of maturity, the law’s approach to it has been to consider the concept of maturity in a piecemeal and issue-specific fashion. The result is a legal construct of maturity that is anything but consistent or coherent. For example, every state has a minimum age below which a child is considered not mature enough to consent to sex. However, if money is involved, more than forty states deem that child mature enough to have consented to sex for money and be charged with the crime of prostitution (even if the money is paid to a pimp and the child never sees it). This Article seeks to undertake a holistic assessment of the law’s approach to maturity.

Markers of maturity in the law frequently occur at different points in time. An examination of key indicators of maturity under the law reveals that the law is inconsistent, not only across issues but also within the same issues. Children are deemed mature enough to participate in the polity (e.g., vote) at a different age from when they are deemed mature enough to exercise independent economic power (e.g., work or contract), control their own bodies (e.g., engage in consensual sex), or assume adult social responsibilities (e.g., drink alcohol in public places).

In short, the law provides little clear guidance on how maturity should be understood and treated. Recent research on brain development and the work of cognitive psychologists provide some answers. To date, however, a significant consideration has been largely overlooked—cultural conceptions of maturity. Thus, this Article seeks to bring cultural perspectives on maturity into the dialogue. Ultimately, this Article aims to bring some clarity to the issue of maturity and examine whether cultural practices can inform the legal, policy, and moral questions in the law’s approach to maturity.