Northwestern University Law Review

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

Articles from Vol. 105, No. 2, 2011

A Foucauldian Call for the Archaeological Excavation of Discourse in the Post-Boumediene Habeas Litigation
A critique does not consist in saying that things aren't good the way they are. It consists in seeing on what type of assumptions, of familiar notions, of established, unexamined ways of thinking accepted practices are based.[dagger]INTRODUCTION"On September...
Agency Rulemaking and Political Transitions
INTRODUCTIONEven before President Obama took to the dance floor on the night of his inauguration, his then-Chief of Staff, Rahm Emanuel, had already fired off a memorandum to the heads of federal agencies instructing them not to start or finish any regulations...
Beyond Principal-Agent Theories: Law and the Judicial Hierarchy
INTRODUCTIONIt is now commonplace for judicial politics scholars to describe the federal judicial hierarchy in terms of a principal-agent relationship.1 The basic outlines of this model are familiar: the United States Supreme Court is conceptualized...
Diversifying the Federal Bench: Is Universal Legitimacy for the U.S. Justice System Possible?
INTRODUCTIONFederal judicial appointments represent one of the most critical intersections of law and politics. All three branches of government are implicated in the federal appointment process: the President selects judicial nominees who must then...
Foreword: Political Science and Law
Recent legal events have moved discussions about the intersection of political science and the law squarely into the mainstream. During the epic Bush v. Gore clash of 2000, Americans watched mesmerized as five unelected, life-tenured Justices determined...
Is Affirmative Action Responsible for the Achievement Gap between Black and White Law Students? a Correction, a Lesson, and an Update/revisiting Law School Mismatch: A Comment on Barnes (2007, 2011)
INTRODUCTIONIn 2007, the Northwestern University Law Review published an essay that I wrote entitled Is Affirmative Action Responsible for the Achievement Gap Between Black and White Law Students?1 The essay joined a scholarly debate regarding the potential...
Party Polarization and Congressional Committee Consideration of Constitutional Questions
INTRODUCTIONStarting around 1990 and especially following the 1995 Republican takeover of Congress, congressional committees have paid less attention to constitutional issues than before. During the same period, the House and Senate Judiciary Committees...
Qualified Immunity, Constitutional Stagnation, and the Global War on Terror
As long as there is no accepted procedure for making detention decisions, the public diplomacy woes that plague [Guantánamo Bay] will continue to plague any future detention site-which will become, in the public mind, Guantánamo by some other name.INTRODUCTIONAround...
Realism about Judges
[J]udicial responsibility . . . connotes the recurring choice of one policy over another . . . .[dagger]The courts must address themselves in some instances to issues of social policy, not because this is particularly desirable, but because often there...
RETHINKING THE ORDER OF BATTLE IN CONSTITUTIONAL TORTS: A REPLY TO JOHN JEFFRIES[dagger]
INTRODUCTIONThe Supreme Court's decision in Pearson v. Callahan1 ended an eightyear experiment in the adjudication of qualified immunity claims.2 That experiment began with Saucier v. Katz, in which the Court held that lower courts must decide whether...
Strategic Globalization: International Law as an Extension of Domestic Political Conflict
INTRODUCTIONInternational law binds nation-states, but it is usually politicians who make the crucial decision whether to adopt or enforce international legal commitments. Thus, contrary to conventional wisdom, the logic and efficacy of international...
Tax Accrual Workpapers and Textron: Is Litigation Strategy No Longer Protected?
INTRODUCTIONThe work-product doctrine was first recognized by the Supreme Court in 19471 and was adopted in the Federal Rules of Civil Procedure in 1970.2 In the recent case United States v. Textron Inc.,3 however, an en banc First Circuit panel ruled...
THE DEMISE OF "DRIVE-BY JURISDICTIONAL RULINGS"[dagger]
INTRODUCTIONIn an October 2009 Term marked by several significant constitutional rulings,1 the Supreme Court quietly continued an important multi-Term effort towards better defining which legal rules properly should be called "jurisdictional." In each...
The New Old Legal Realism
INTRODUCTIONJudges produce opinions for numerous purposes. A judicial opinion decides a case and informs the parties whether they won or lost. But in a common law system, the most important purpose of the opinion, particularly the appellate opinion,...
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