Redefining Workplace Speech After Janus
We have a First Amendment right to criticize the government. But this freedom does not translate into a right to criticize one’s boss even if, as for millions of Americans, one’s boss happens to be a...
View ArticleHousing, Healthism, and the HUD Smoke-Free Policy
On July 30, 2018, the U.S. Department of Housing and Urban Development (HUD) rule prohibiting residents of public housing from smoking within twenty-five feet of any housing project took effect. These...
View ArticleForeword
This is the first annual issue of the Northwestern University Law Review exclusively comprising empirical legal scholarship. We are thrilled to present a diverse group of Articles that show the...
View ArticleDoes Patented Information Promote the Progress of Technology?
This Article investigates the relationship between the exclusive rights of patents, their information disclosures, and the impact they have on the development of future technologies. An examination of...
View ArticleContract Governance in Small-World Networks: The Case of the Maghribi Traders
This Article revisits the best known example of successful private ordering in the economics literature: the Maghribi Jewish merchants who engaged in both local and long-distance trade across the...
View ArticleProsecuting in the Shadow of the Jury
This Article offers an unprecedented empirical window into prosecutorial discretion, drawing on research between 2013 and 2017. The central finding is that jurors play a vital role in federal...
View ArticleA New Strategy for Regulating Arbitration
Confidential arbitration is a standard precondition to employment. But confidential arbitration prevents a state from ensuring or even knowing whether employees’ economic, civil, and due process...
View ArticleEddie Murphy and the Dangers of Counterfactual Causal Thinking About...
The model of discrimination animating some of the most common approaches to detecting discrimination in both law and social science—the counterfactual causal model—is wrong. In that model, racial...
View ArticleEmpirical Legal Scholarship: Observations on Moving Forward
Empirical legal scholarship was once a novel and contested participant in the legal academy. In the twenty-first century, it has emerged as an active and valued player. That is not to say that...
View ArticleOriginalism Versus Living Constitutionalism: The Conceptual Structure of the...
The great debate between originalism and living constitutionalism ought to focus on the merits, including normative arguments for and against various forms of each theory. Frequently, however,...
View ArticleOriginalism and Structural Argument
The “new originalism” is all about the text of the Constitution. Originalists insist that the whole point of originalism is to respect and follow the original meaning of the text, and that originalism...
View ArticleOriginalism and a Forgotten Conflict over Martial Law
This Symposium Essay asks what a largely forgotten conflict over habeas corpus and martial law in mid-eighteenth-century New York can tell us about originalist methods of constitutional...
View ArticleUnifying Original Intent and Original Public Meaning
Original intent and original public meaning are generally thought to be opposing camps within originalism. Both theories assert that that the meaning of a constitutional provision was fixed at the...
View ArticleOriginalism and James Bradley Thayer
This Essay provides an originalist appraisal of Professor James Bradley Thayer’s famous book on The Origin and Scope of the American Doctrine of Constitutional Law. I critique Professor Thayer’s...
View ArticleGrounding Originalism
How should we interpret the Constitution? The “positive turn” in legal scholarship treats constitutional interpretation, like the interpretation of statutes or contracts, as governed by legal rules...
View ArticleRethinking Police Rulemaking
For more than sixty years, prominent policing scholars have argued that the way to address the many problems of policing is to treat police departments like all other agencies of government—and to...
View ArticleForgotten Limits on the Power to Amend State Constitutions
There seem to be no limits on what can pass through state constitutional amendment procedures. State amendments have targeted vulnerable minorities, deeply entrenched specific fiscal strategies, and...
View ArticleFrom Language to Law: Interpretation and Construction in Early American...
This Note surveys evidence concerning how early American Supreme Court Justices approached interpretation and construction based on an analysis of Supreme Court opinions from 1795 to 1805. An...
View ArticleThe Character of Law: A Normative Critique of Social-Emotional Learning Laws
This Note examines a widespread but barely acknowledged phenomenon within education law: the recent enactment, in all fifty states, of statutes and standards regarding students’ social and emotional...
View ArticleAlienating Citizens
Denaturalization is back. In 1967, the Supreme Court declared that denaturalization for any reason other than fraud or mistake in the naturalization process is unconstitutional, forcing the government...
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