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The Open Society and Its Digital Enemies: A Reply to Professors Bambauer and Garrett

Don’t let our title fool you. Jane Bambauer and Brandon Garrett are friends of an open society, not its enemies. In distinct and distinctly important ways, they have engaged and expounded upon our concept of digital innocence, and in so doing, they have emboldened us to find the courage of our convictions and indeed to […]

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Big Data and Due Process

Today, electronic footprints may follow us wherever we go. Electronic traces, left through a smartphone or other device, can be tracked to the scene of a crime, or they can place a person far from a crime scene. Those traces can sometimes be tracked far more reliably than the types of trace evidence traditionally examined […]

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Collection Anxiety

DNA is not the only path to exoneration. Some of the wrongfully accused exculpate themselves using video recordings, transaction records, and other digital information. Given the gluttonous data collection practices of our government, these exoneration stories should be much more frequent than they are. Digital Innocence by Joshua A.T. Fairfield and Erik Luna puts forward […]

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Symmetries—and Asymmetries—Between Theories of Statutory Interpretation

Richard Fallon exposes a myth of textualism.  Textualists like to criticize other interpretive methods for giving judges too much leeway to impose their values on society.  As Fallon explains, however, textualist and nontextualist interpreters alike must inevitably consider values in giving meaning to legal texts.  While recognizing that the choice among different interpretive methods has […]

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Congress’s (Less) Limited Power to Represent Itself in Court: A Comment on Grove and Devins

In their recent article, Congress’s (Limited) Power to Represent Itself in Court, Tara Leigh Grove and Neal Devins make the case against congressional litigation in defense of the constitutionality of federal statutes. They conclude that Congress, or a single House of Congress, may not defend the constitutionality of federal statutes in court even when the […]

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Space Madness: Subsidies and Economic Substance

Extending the reach of the recently codified economic substance doctrine to embrace transactions spurred by tax subsidies would help both Congress and taxpayers promote worthy objectives such as historic preservation and the production of renewable energy. Congress—or quite possibly the courts—could use losses as the lynchpin of an economic substance doctrine for subsidized transactions. To […]

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On NPEs, Holdups, and Underlying Faults in the Patent System

This piece offers commentary on two essays in the current volume of the Cornell Law Review: James Bessen and Michael J. Meurer’s The Direct Costs from NPE Disputes and David L. Schwartz and Jay P. Kesan’s Analyzing the Role of Non-Practicing Entities in the Patent System. Schwartz and Kesan’s essay critiques Bessen and Meurer and […]

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The Implications of Private Environmental Governance

Many of us first learned about the role of government through middle school civics class. In the simplest view, an important governmental function is to manage the exploitation of common pool resources in the face of pressure from individuals and corporations who have incentives to over exploit the resource, and who face collective-action problems in […]

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Revisiting Constitutional Retroactivity in New York After Danforth: Should Padilla and Other Supreme Court Guilty Plea Counsel Cases Prompt a Change From Eastman-Teague, or Adherence to Chaidez?

Nearly two decades ago, in People v. Eastman, the New York Court of Appeals––in considering whether or not to apply a newly announced rule of criminal procedure under the United States Constitution to criminal cases pending solely on state court collateral review––concluded that state courts were “constitutionally commanded” to apply the rubric fashioned by the […]

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Do For-Profit Corporations Have Rights of Religious Conscience?

Challenges by for-profit corporations to the Affordable Care Act’s requirement that employers provide their employees with medical insurance packages that include coverage for contraceptives have raised questions under the Religious Freedom Restoration Act (RFRA) and the Constitution. This Essay discusses a threshold question in the constitutional challenges: Do for-profit corporations have rights of religious conscience […]

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