Northwestern University Law Review

Scholarly journal that features legal commentary, emerging developments, topic analysis, and controversial issue debate.

Articles from Vol. 99, No. 1, Fall

Editors' Note
THE REHNQUIST COURTFor the past eighteen years, William Rehnquist has served as Chief Justice of the Supreme Court, and his current Court has sat together longer than any since the time of James Monroe. Scant months before the country re-elected President...
Federalism vs. States' Rights: A Defense of Judicial Review in a Federal System
I. INTRODUCTIONFederalism is the cornerstone of the Constitution. Yet, federalism is too often confused by both admirers and detractors with state autonomy, popularly known as "states' rights." The constitutional system of federalism assigns powers to...
From Hit Man to a Military Takeover of New York City: The Evolving Effects of Rice V. Paladin Enterprises on Internet Censorship
I. INTRODUCTIONMost courts consider Brandenburg v. Ohio1 to have set a new standard in free speech jurisprudence,2 standing for the proposition that the state cannot punish speech solely because it has the "mere tendency" to "encourage unlawful acts."3...
Hard Cases Make Good Judges
I. INTRODUCTIONWilliam H. Rehnquist became Chief Justice in 1986. Those of us old enough to recall the constitutional landscape before that time look back on a Court dominated by questions of equal protection, substantive due process, and free speech...
It's the O'connor Court: A Brief Discussion of Some Critiques of the Rehnquist Court and Their Implications for Administrative Law
I. INTRODUCTIONMichael Herz's article1 makes an important contribution to our understanding of both administrative law and the Rehnquist Court. Noting that nothing too significant has happened in the Supreme Court's administrative law jurisprudence under...
Outsiders, Swing Justices, and Original Understanding: Can the Religion Clauses Be Saved? a Comment on Greenawalt
I have known Kent Greenawalt for many years and have great admiration and respect for him. He is a wonderful colleague, a kind and generous man, and an exceptionally dedicated scholar. In his piece,1 he does a splendid job articulating the recently-dominant...
Pragmatism and Judgment: A Comment on Lund
Nelson Lund's article is entitled The Rehnquist Court's Pragmatic Approach to Civil Rights.1 I raise three questions about his analysis, two of which take off from the phrasing of his title.First, calling the present Court the Rehnquist Court is obviously...
Pragmatism vs. Ideology in Free Speech Cases
I. THE INEVITABLE IDEOLOGICAL JUDGMENTPragmatism sounds appealing. Life is full of hard questions, questions that defy categorical answers. Theory and abstract principle cannot resolve these questions, the argument goes; instead, judges should pay "careful...
Religion and the Rehnquist Court
I. INTRODUCTIONThe Rehnquist Court has turned the constitutional law of religion nearly upside down.The legacy of the Warren Court, not much disturbed during Warren Burger's years as Chief Justice, was an expansive approach to both the Free Exercise...
Separation of Powers and the Rehnquist Court: The Centrality of Clinton V. City of New York
In The Revolution that Wasn't, Professor Elizabeth Magill advances three themes that I wish to express only partial agreement with.1 First, she argues that judicial policing of constitutional federalism boundaries occurs with no relation to judicial...
Takings and Private Property on the Rehnquist Court
I. INTRODUCTIONThe Takings Clause provides an extremely revealing window into the workings of the Rehnquist Court.1 Because regulatory takings law focuses on the relationship between property and its proper regulation, it frames in constitutional terms...
The Inevitable Failure of Nuisance-Based Theories of the Takings Clause: A Reply to Professor Claeys
I. INTRODUCTIONThe Rehnquist Court has played a significant role in shaping the U.S. Constitution's Takings Clause. In the eighteen years since William Rehnquist became Chief Justice in 1986, the Supreme Court has reviewed more taking challenges and...
The Judicial Safeguards of Federalism
I. INTRODUCTIONThere is no federalism constituency within Congress. Not only do federal lawmakers and national lobbyists gladly sacrifice federalism in order to advance other interests, but state officials also "have systematic political interests that...
The Rehnquist Court and Administrative Law
I. INTRODUCTIONThe Rehnquist Court is generally seen as overconfident, arrogant, undeferential, and too fond of its own power. It swaggers; sometimes it terrorizes. It insists on its own primacy. Yet in the area of administrative law, the Court frequently...
The Rehnquist Court's Pragmatic Approach to Civil Rights
I. INTRODUCTIONThe topic given to me for this symposium-civil rights and the Rehnquist Court-requires an immediate clarification, for the term "civil rights" can have a variety of meanings. In order to keep the topic manageable, I will confine myself...
The Revolution That Wasn't
I. INTRODUCTIONA principal legacy of the Rehnquist Court is its revitalization of doctrines associated with federalism. That jurisprudence has many critics and many defenders. They disagree about how to describe what has happened, the importance of what...
Virtual Spaces Formed by Literary Works: Should Copyright or Property Rights (or Neither) Protect the Functional Integrity and Display of a Web Site?
I. INTRODUCTIONIf the owner of a billboard arrived one day to find that his competitor had posted, right on top of the owner's advertisement, a sign that encouraged customers to try the competitor's services instead, the law would likely provide the...
Why Disparate Impact Claims Should Not Be Allowed under the Federal Employer Provisions of the Adea
One of the most controversial issues in employment law is whether the Age Discrimination in Employment Act of 1967 ("ADEA")1 permits "disparate impact" causes of action. The controversy2 has centered almost exclusively on the ADEA provisions which govern...