Northwestern University Law Review

Hard Cases Make Good Judges

Sherry focuses on three areas that illustrate pragmatist approach: commercial speech and advertising, election regulations, and restrictions on pornography. She argues that in each area, pragmatic considerations rather than grand principles often determine the outcome, producing some unpredictably but a just regime overall.

Separation of Powers and the Rehnquist Court: The Centrality of Clinton V. City of New York

Calabresi comments on an article written by Elizabeth Magill on the separation of powers and the Rehnquist Court. He attempts to show that each of Magill's assertions is only partly true. While there is an important kernel of truth in Magill's claims, there are significant things that people can appreciate about the relation of the Court's federalism and separation of powers case law by understanding the ways in which her claims prove to be overstated.

Pragmatism Vs. Ideology in Free Speech Cases

Volokh presents a theoretical analysis on whether judges are being more pragmatic than theoretical in most free speech cases. Free speech cases often do not follow the 5-4 conservative-liberal divides that people see in federalism cases, Establishment Clause cases, and other areas of modern constitutional law. He concludes that the Rehnquist Court has produced an overall just regime in the area of free speech.

The Revolution That Wasn't

A 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. Here, Magill asks why there has been no "revolution" in separation of powers jurisprudence during the Rehnquist Court.

Federalism Vs. States' Rights: A Defense of Judicial Review in a Federal System

McGinnis and Somin defend the distributional model of federalism and the principal-agent model of its enforcement, arguing that together they have profound implications for modern federalism jurisprudence. They provide a more comprehensive explanation of the ways that the interests of government officials, both state and federal, may systematically undercut constitutional federalism unless restrained by judicial review.

Outsiders, Swing Justices, and Original Understanding: Can the Religion Clauses Be Saved? A Comment On Greenawalt

Presser comments on Kent Greenawalt's arguments on how the court is transforming previous Establishment Clause jurisprudence and threatening core ideas of separation of church and state. Greenawalt is concerned that the Court may not be enforcing separation between church and state as effectively as he believes is necessary to protect the rights of outsiders.

The Judicial Safeguards of Federalism

Devins comments on an article by John McGinnis and Ilya Somin about the distributional model of federalism. He claims that McGinnis and Somin are wrong in suggesting that informed voters would likely value federalism over other objectives, and consequently, that the problem with the political process policing federalism is that Americans are "know nothings" who have little incentive to learn about, let alone monitor the federal state balance.

Religion and the Rehnquist Court

The Rehnquist Court has turned the constitutional law of religion nearly upside down. Here, Greenawalt pays predominant attention to what the Rehnquist Court has altered, including the Court's strong rejection of laws that discriminate among religions or that target religious practices and the Court's inhospitable response to religious exercises that are sponsored by public schools.

The Inevitable Failure of Nuisance-Based Theories of the Takings Clause: A Reply to Professor Claeys

Sterk comments on Eric Claey's article on the takings clause. He demonstrates that the nuisance-based theory cannot provide a comprehensive basis for takings clause jurisprudence and establishes that no plausible vision of originalism supports a nuisance-based theory.

Pragmatism and Judgment: A Comment On Lund

Tushnet raises three questions on Nelson Lund's analysis on the pragmatic approach of the Rehnquist Court to civil rights. Among other things, he criticizes Lund for taking his charge from the conveners of the Symposium, which according to him is not the most productive approach to understanding the contemporary Supreme Court.

Takings and Private Property On the Rehnquist Court

Claeys canvasses the Rehnquist Court's takings jurisprudence to illustrate several broader themes about the jurisprudence of the Rehnquist Court generally. He assumes that there are two fundamental alternatives in the constitutional law and the property theory behind constitutional takings protections.

It's the O'connor Court: A Brief Discussion of Some Critiques of the Rehnquist Court and Their Implications for Administrative Law

Rappaport discusses Herz's some critiques of the Rehnquist Court and their implications for administrative law. Herz's article makes an important contribution to the understanding of both administrative law and the Rehnquist Court. He attempts to use the Court's administrative law decisions as a means of understanding the Court more generally and of assessing whether the leading critiques of the Court as a judicially supremacist, conservative institution are accurate.

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 (ADEA) of 1967 permit disparate impact causes of action. Luce argues that disparate impact claims should not be allowed under the federal-sector provisions of the ADEA.

The Rehnquist Court's Pragmatic Approach to Civil Rights

Lund discusses the Rehnquist Court's pragmatic approach to civil rights. He also looks into the Court's decisions interpreting the Americans with Disabilities Act and examines cases dealing with the related issues of disparate impact doctrine and affirmative action under Title VII of the Civil Rights Act of 1964.

The Rehnquist Court and Administrative Law

Herz examines the Court's relatively quiet and modest administrative law jurisprudence, which contradicts, or at least dilutes, the common portrayal of the Court. He then summarizes the familiar portrait of the Rehnquist Court as arrogant and undeferential and hypothesizes the administrative law doctrines such a Court would produce.

Virtual Spaces Formed by Literary Works: Should Copyright or Property Rights (or Neither) Protect the Functional Integrity and Display of a Web Site?

Yung examines recent decisions involving the unauthorized display of pop-up windows on Internet sites and explores the existing legal doctrines that lawyers have attempted to use to give Web site operators control over the display and integrity of their Internet storefronts. She provides background information on the technologies and companies involved in these disputes.

Comments

From Hit Man to a Military Takeover of New York City: The Evolving Effects of Rice V. Paladin Enterprises On Internet Censorship

Scholarly debate over Rice v. Paladin Enterprises Inc has far focused on its effects on the censorship of fiction, movies, and music. Kastanek evaluates the nature and severity of the case's effects in a fourth realm, that of Internet speech.

Symposium

Editors' Note