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Category: Professor contribution

Closed for Business – Open for Litigation?

Closed for Business – Open for Litigation?

Can a business-closure regulation of commercial property in a pandemic be a taking?  In the midst of a pandemic, it generally falls to government to enact laws and regulations in an effort to curtail the spread of disease. For example, the Supreme Court discusses compulsory vaccination in Jacobson v. Massachusetts and quarantines in Smith v. Turner.  In a liberty-oriented constitutional federalist democratic republic like America, this can be challenging–indeed, the volume of published opinions in this area of law show…

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Protests During the Pandemic

Protests During the Pandemic

As a general rule, the government is permitted to restrict activities, including protesting, during the COVID-19 pandemic. The government can regulate the time, place, and manner of speech in public forums with a content neutral restriction so long as the restriction is narrowly tailored to “serve a significant government interest” and “leave[s] open ample alternative channels for communication of the information.” A shelter-in-place order can constitutionally prevent public gatherings for a period of time (many of these orders are in…

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A Legal Stimulus

A Legal Stimulus

We need a legal stimulus. Not just a stimulus that is legal, but one that provides legal aid. That is why any further congressional stimulus should allocate additional funds specifically for legal services to individuals who, as a result of COVID-19, face eviction, foreclosure, loan defaults, debt collection, bankruptcy, domestic violence, or denied insurance claims or coverage. The need is dire. These looming crises from the pandemic will hit, but mostly after the initial health scare has dampened, the executive orders are lifted,…

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Deterring Viral Pandemics of COVID-19 Misinformation

Deterring Viral Pandemics of COVID-19 Misinformation

As the coronavirus spreads across the United States, so does an info-demic of dangerous misinformation threatening public health. UN Secretary-General António Guterres characterized this misinfo-demic as a “secondary disease” that needlessly threatens public health, observing that “[h]armful health advice and snake-oil solutions are proliferating.” A U.S. Attorney similarly warned Americans to be “extremely wary of outlandish medical claims and false promises of immense profits.” “[O]ver 4,000 coronavirus-related domains—that is, they contain words like “corona” or “covid” —have been registered since…

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Prisons in the time of COVID-19

Prisons in the time of COVID-19

The current COVID-19 public health crisis has rendered the nation’s jails and prisons ticking time bombs. In the confined spaces of the carceral system the infection flourishes. At Rikers Island in New York City the rate of infection among the incarcerated population is an estimated seven times that of the free population. The Cook County Jail in Chicago boasts the highest infection rate in the country. Inmates post desperate pleas for help on their cell windows: “Help we matter2.” In…

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Update on Confirmation Process

Update on Confirmation Process

The following piece is a part of NULR of Note’s “Bring Back The ‘90s” initiative, aimed at exploring the evolution of legal thinking over the past three decades. For more, click here. Writing in 1990, not long after the conclusion of Robert Bork’s Supreme Court confirmation hearings, I noted the growing—although not uncontested—consensus that senators should attempt to shape constitutional meaning by aggressively inquiring about the nominee’s beliefs about interpretive methods, legal philosophy, doctrines, and even specific cases. I lamented…

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Two Conceptions of Rights: Twenty-Five Years Later

Two Conceptions of Rights: Twenty-Five Years Later

The following piece is a part of NULR of Note’s “Bring Back The ‘90s” initiative, aimed at exploring the evolution of legal thinking over the past three decades. For more, click here. It is both gratifying and disheartening to be asked to comment on my now twenty-five-year-old Article, From Cannibalism to Caesareans: Two Conceptions of Fundamental Rights. It is gratifying to think that the thesis of that Article remains worth discussing a quarter of a century later, but disheartening to…

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Neuroscience and the Active Jury

Neuroscience and the Active Jury

The following piece is a part of NULR of Note’s “Bring Back The ‘90s” initiative, aimed at exploring the evolution of legal thinking over the past three decades. For more, click here. In 1990, the Northwestern University Law Review published The Competency and Responsibility of Jurors in Deciding Cases, 85 Nw. U. L. Rev. 190 (1990). The Article conceptualized the jury “as a democratic representative of the community through its verdicts” and argued that because of this democratic role, it should…

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Accountability (or Lack Thereof) of Corporate Officers and Directors

Accountability (or Lack Thereof) of Corporate Officers and Directors

The following piece is a part of NULR of Note’s “Bring Back The ‘90s” initiative, aimed at exploring the evolution of legal thinking over the past three decades. For more, click here. In assessing the liability of corporate actors, courts have fairly consistently resolved contests of doctrine in favor of corporate law principles as opposed to tort law principles.  Corporate law traditionally protects officers and directors from personal liability for tortious acts committed in their corporate roles unless they actively…

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Limited Liability and the Efficient Allocation of Resources: Twenty-Five Years Later

Limited Liability and the Efficient Allocation of Resources: Twenty-Five Years Later

The following piece is a part of NULR of Note’s “Bring Back The ‘90s” initiative, aimed at exploring the evolution of legal thinking over the past three decades. For more, click here. In Limited Liability and the Efficient Allocation of Resources, 89 Nw. U. L. Rev. 140 (1994), I responded to a chorus of scholars who suggested that limited liability for corporations had outlived its usefulness—a thesis that was based in large part on the mistaken assumption that limited liability…

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