Northwestern University Law Review

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

Articles from Vol. 107, No. 2, 2013

Abstention, Separation of Powers, and Recasting the Meaning of Judicial Restraint
ABSTRACT-In his 1984 landmark article, Abstention, Separation of Powers, and the Limits of the Judicial Function, Professor Martin H. Redish advanced the thesis that the abstention doctrines constituted a violation of separation of powers. Redish's theory...
AFFIRMATIVE ACTION, JUSTICE KENNEDY, AND THE VIRTUES OF THE MIDDLE GROUND[dagger]
ABSTRACT-When the Supreme Court heard arguments in October about the constitutionality of affirmative action policies at the University of Texas, attention focused once again on Justice Anthony Kennedy. With the rest of the Court split between a bloc...
Aggregate Litigation and the Death of Democratic Dispute Resolution
ABSTRACT-Professor Redish has anchored the modern class action in American political and constitutional theory, raising serious questions about the legitimacy of this procedural device for resolving aggregate claims. Professor Redish's major insight...
A Great Scholar and a Great Man
"I'm going to tell you a story," the famous law professor announced. "Warning at the outset: There will be points in this story when you're going to think that this is nothing more than endless ramblings and reminiscence. And there may be some truth...
A Jurisdictional Perspective on New York Times V. Sullivan
ABSTRACT-New York Times v. Sullivan, arguably the Supreme Court's most significant First Amendment decision, marks its fiftieth anniversary next year. Often overlooked in discussions of the case's impact on the freedom of speech and freedom of the press...
Bomb Throwing, Democratic Theory, and Basic Values-A New Path to Procedural Harmonization?
ABSTRACT-From the beginning of his career, Marty Redish has been something of a bomb thrower, repeatedly challenging legal orthodoxy. During the last decade, democratic theory has been at the center of many of his challenges to widely accepted procedural...
Distressing Speech after Snyder-What's Left of Iied?
ABSTRACT-Speech has the potential to cause devastating emotional injury. Yet it has been less than a century since intentional infliction of emotional distress-a tort designed to punish a person who, through outrageous conduct or speech, intentionally...
GRUTTER'S DENOUEMENT: THREE TEMPLATES FROM THE ROBERTS COURT[dagger]
ABSTRACT-Precedent from the Roberts Court shows the Justices taking three distinct approaches to precedent they dislike. Each provides a template for the Court to criticize race-based affirmative action in higher education, as Fisher v. University of...
Hacking Speech: Informational Speech and the First Amendment
ABSTRACT-The Supreme Court has never articulated the extent of First Amendment protection for instructional or "informational" speech-factual speech that may be repurposed for crime. As technology advances and traditional modes of speech become intertwined...
In Class with Marty from Highland Park
I can still remember my first day as a student in Marty Redish's first-year class in constitutional law. Our section was very strong, containing two future members of the law school's clinical faculty, a student who would later teach at Oxford, and a...
Martin H. Redish Festschrift: PREFACE
I am pleased to offer these introductory remarks in connection with the publication of what I think of as the Marty Redish issue of the Northwestern University Law Review. The pieces in this issue were presented on March 30, 2012, at a daylong symposium...
One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and "Cyberstalking"
ABSTRACT-Until recently, criminal "harassment" usually referred to telephone harassment-unwanted communications to a particular person. Likewise, stalking laws were originally created to deal with people who were physically following a person or trying...
Redish on Freedom of Speech
ABSTRACT-My contribution to this Festschriftfor Marty Redish looks at two of his most important articles on freedom of speech, both published in 1982. One article deals with free speech and advocacy of crime, while the other presents Marty's general...
Superiority as Unity
ABSTRACT-One of Professor Redish's many important contributions to legal scholarship is his recent work on class actions. Grounding his argument in the theory of democratic accountability that has been at the centerpiece of all his work, Professor Redish...
The Continuing Gloom about Federal Judicial Rulemaking
ABSTRACT-In 2013, the Federal Rules of Civil Procedure turn seventy-five years old. The rulemaking process by which they are promulgated has been a source of gloom for a generation. Like a wayward Hollywood star, the process is in "crisis" and its fans...
The Corporate Right to Speak Freely about Macho Federalist Tensions in Times of Political Repression: What Every Venusian Should Know
The process of translating words across cultures often presents some challenges to the translator. Context of course is crucial and often can alter meaning. So to prepare for today's luncheon, I consulted the Mel Brooks and Carl Reiner German-English...
The Cyber-Samaritans: Exploring Criminal Liability for the "Innocent" Bystanders of Cyberbullying
ABSTRACT-In recent years, the media have consistently documented the stories of teens who committed suicide or otherwise suffered severe physical and psychological harm following periods of vitriolic cyberbullying. While legislators and scholars have...
The Presidential Role in the Constitutional Amendment Process
ABSTRACT-The President should have the power to veto constitutional amendment proposals. After all, Article I, Section 7 of the Constitution provides that "[e]very Order, Resolution, or Vote" requiring "the Concurrence" of both houses of Congress must...
VALUE DEMOCRACY AS THE BASIS FOR VIEWPOINT NEUTRALITY: A THEORY OF FREE SPEECH AND ITS IMPLICATIONS FOR THE STATE SPEECH AND LIMITED PUBLIC FORUM DOCTRINES[dagger]
ABSTRACT-The doctrine of viewpoint neutrality is central to First Amendment jurisprudence. It requires the state to not treat speech differently based on a speaker's political or philosophical opinions. The doctrine has recently come under attack, however,...
Veil of Ignorance: Tunnel Constructivism in Free Speech Theory
ABSTRACT-Modern free speech theory is dominated in the courts and the academy alike by a constructivist style of reasoning: it posits a few axiomatic purposes of speech and from these deduces detailed rules of law. This way of thinking can make the law...
Why Abstention Is Not Illegitimate: An Essay on the Distinction between "Legitimate" and "Illegitimate" Statutory Interpretation and Judicial Lawmaking
ABSTRACT-When Professor Martin Redish condemned abstention doctrines as violating norms of "institutional legitimacy," he provoked an informative debate, but one that has largely subsided. This Essay revisits the once-heated debate about abstention's...