Northwestern University Law Review : Colloquy : Prior Colloquies
This page includes brief descriptions and links to the colloquies that have been hosted here. The date listed is that of the most recent post in the exchange.
Alexander Reinert, Erik Luna
Professor Reinert began this colloquy by examining multiple ways to conceptualize and apply Fourth Amendment doctrine to TSA's new security regime. He then discusses the historical evolution of airport searches, and the constitutional concerns evoked by the new, invasive measures. After arguing that most courts will be unwilling to find the new regime unconstitutional, Professor Reinert then argues that such constitutional approval must be limited by a justifying purpose, and must be grounded in the special needs exception to warrantless and suspicionless searches. Professor Luna then examines the TSA search methods through the idea of constitutional exceptionalism, and questions the necessity of such exceptionalism in light of the terrorist anxieties of the last decade. He then compares the actual and existential nature of the dangers faced, and argues that such exceptions to the Fourth Amendment are not justified by the actual assessment of risk.
Last updated Feb. 28, 2012
Michael Hatfield, Robert K. Vischer, W. Bradley Wendel
Professor Hatfield began this colloquy on professionalizing moral lawyering with a question: how could well-trained, competent, otherwise moral lawyers conclude that torture is permissible? The answer, he argued, is that lawyers are trained to defer to their clients regarding moral issues. Professor Vischer responded with an argument that the problem is not one of deference, but rather that lawyers are not trained to think about moral issues and raise them to clients. W. Bradley Wendel then responded to Professor Hatfield's arguments, arguing that the correct response to "ethical disasters" is to insist that lawyers pay more attention to the internal norms of lawyering, not that they be more responsive to the demands of individual conscience. Professor Hatfield responded to Professor Vischer and Professor Wendel, and argued that neither Professor addressed his focus on the effect of legal training and practice on lawyers' moral reasoning.
Last updated March 8, 2010
Christopher C. Lund, Nelson Tebbe, Joseph Blocher, Bernadette Meyler, Lisa Shaw Roy
Professor Lund began this colloquy by arguing that Pleasant Grove City v. Summum reveals much about the course that the Supreme Court is now charting with the Establishment Clause. Prof. Tebbe then analyzed Summum in asking when should we allow governments to deploy private-law rules in order to circumvent public-law obligations? Professor Blocher discussed what Summum draws from, and says about, the relationship between speech rights and property ownership. Professor Meyler wrote that despite Justice Scalia's effort in Summum to exorcise the spirit of the Establishment Clause, its specter may continue to haunt the Court in similar cases. Finally, Professor Roy suggested that the case raised important questions about the continued validity of the Establishment Clause's endorsement test.
Last updated February 14, 2010
Tom Ginsburg, Salil Mehra, Katharina Pistor, Anna Gelpern, Mariana Prado, Susan D. Franck, John Cioffi, Kevin Davis, Adam Feibelman, Brian Z. Tamanaha, Yuka Kaneko, D. Daniel Sokol, Daniel Kaufmann, John Ohnesorge & Veronica L. Taylor
Last updated January 24, 2010
Naomi R. Cahn, Jennifer M. Collins, June Carbone, Kim Krawiec
Professors Naomi R. Cahn and Jennifer M. Collins opened this colloquy about regulating assisted reproductive technologies (ART) by arguing that narrowly tailored regulation should be designed to prevent abusive uses of ART procedures that endanger women and future children. Professor Carbone questioned, however, the framework they developed for determining when and what type of regulation is appropriate. Finally, Professor Krawiec took issue with Cahn and Collins's embryo-transfer limit proposal.
Last updated September 20, 2009
Paul Horwitz, Jack M. Beermann, David Fontana, Nina A. Mendelson, Bruce Peabody
This colloquy on presidential transitions began with an essay by Professor Paul Horwitz. His essay contends that every presidential transition is a "constitutional moment." He considers the significance of the presidential oath and its influence on each new President. Professor Jack M. Beermann added to the discussion by discussing midnight regulation. He focused on the reasons for midnight regulation and what can be done to combat midnight regulation. Professor David Fontana then examined how political parties in constitutional democracies choose their current and future policy leaders, and found the presidential transition period plays a uniquely important role in how American parties select their leaders. Professor Nina A. Mendelson continued the series with a look at whether a President-elect should be empowered to exercise greater authority prior to inauguration. Finally, Professor Bruce Peabody argued the Constitution requires a President to recite the oath of office verbatim before exercising the full powers of the presidency.
Last updated June 15, 2009
Bernard S. Sharfman, Steven J. Toll, Marc Goldstein
This colloquy on improving corporate board governance began with an essay by Bernard S. Sharfman and Steven J. Toll. Their essay argues that boards dominated by outside CEOs are likely to give extreme deference to company management, leading to problems such as Enron, and they offer several suggestions to avoid this "dysfunctional deference." In a subsequent essay, they proposed using a "team production approach" to select board members who will be independent and not excessively deferential to management. Marc Goldstein then argued that shareholders should focus on mitigating the dangers of deferential boards, rather than examining the number of outside directors with a corporate background.
Last updated May 4, 2009
David T. Hardy, Saul Cornell
This colloquy on St. George Tucker and his influence on District of Columbia v. Heller began with an essay by David T. Hardy. Hardy reviews Tucker's unpublished lecture notes and concludes the Heller majority was correct to interpret Tucker's Blackstone's Commentaries as proof that the Second Amendment had originally been understood as an individual right to arms. Professor Saul Cornell disagrees, and contends that Tucker's lecture notes actually demonstrate that he viewed the Second Amendment as a militia-related right of states.
Last updated March 3, 2009
D. Daniel Sokol, Salil Mehra
This colloquy on international antitrust and agency capacity began with an essay by Professor D. Daniel Sokol. He focused on how both external and internal dynamics shape the capacity of younger agencies to undertake antitrust in their jurisdictions. Professor Salil Mehra reponded to Professor Sokol by arguing that the the transfer of antitrust expertise from experienced regimes such as the United States to emerging enforcement institutions elsewhere will likely not be a simple exercise.
Last updated Jan. 12, 2009
Seth Barrett Tillman, Brian C. Kalt
This colloquy on recess appointments was first published in volume 101 of the Colloquy. We republished the colloquy in volume 103. On the heels of a number of recess appointments by the President, Mr. Tillman proposed that there is a means by which the Senate could remove a recess appointment. Professor Kalt disagreed, arguing that both constitutional and practical considerations made such a manuever by the Senate extremely unlikely. Tillman responded, disputing the constitutional calculus offered by Kalt. Kalt's final rejoinder expands upon objections to the "Tillman Adjournment" process.
Last updated Jan. 5, 2009.
Gregory S. McNeal, Benjamin G. Davis, Morris D. Davis, Stephen I. Vladeck
This colloquy on the Military Commissions Act of 2006 began with an essay by Professor Gregory McNeal. He pointed out many shortcomings that currently exist with military commissions including undue political influence and lack of oversight. He then looked at the possible transition to a national security court and identified some obstacles that will be present if reformers eliminate military commissions. Professor Benjamin Davis responded by pointing out further problems with the Military Commissions Act of 2006. He argues that military commissions deny foreigners due process and that reform will be meaningless unless executive and legislative actors are held accountable for the torture that they permitted. He concludes by arguing that because the Executive and Legislature have been unable to create a system that meets judicial norms, these cases must be dealt with either in Article III courts or courts-martial. Colonel Morris Davis responded next to Professor McNeal. He concurred with the points made by professor McNeal and further explained the history of military commissions. He then discussed the difference between modern military commissions and courts-martial. Professor Stephen Vladeck discussed Constitutional limitations upon the exercise of military jurisdiction andhow he believes that the Military Commissions Act exceeds those limits. He concluded with by emphasizing that clarity is necessary regarding who can be subject to trial before national security courts and for what offenses.
Last updated Oct. 20, 2008
Douglas A. Berman & Stephanos Bibas, Morris B. Hoffman, Susan A. Bandes, Corey Rayburn Yung
This colloquy on Kennedy v. Louisiana began with Professors Douglas Berman & Stephanos Bibas' essay on whether emotion should factor into the decision to execute individuals for their crimes. They argued that emotion should play a part in capital punishment and that the emotional case for child rape cases may be even stronger than the case for murder cases. Judge Hoffman responded with an essay discussing the connection between law and emotion, and the law's moral roots. Professor Susan Bandes responded to Professors Berman and Bibas' essay by analyzing emotion in two primary contexts: the relevance of harm to victims and juror emotion for child rape cases. She concluded that capital punishment jurisprudence should properly consider both emotional and moral concerns. Professor Corey Rayburn Yung added gloss to the discussion by commenting on whether military law is relevant to the evolving standards of decency embodied in the Eighth Amendment.
Last updated Sept. 29, 2008
Catherine M. Sharkey, Richard A. Epstein
Professor Catherine Sharkey started the discussion on preemption of state laws in drug cases with her analysis of Riegel v. Medtronic. She discussed how the holding in Riegel may affect drug cases in the future and foreshadowed the upcoming decision in Wyeth v. Levine. She concluded that if regulatory agencies are to have an enhanced role in making preemption determinations that courts must ensure that actions taken by the FDA merit deference. Professor Richard Epstein shed light on the discussion by analyzing preemption from different points of view. He considered preemption after the new deal, an essay on preemption written by Professors David Kessler and David Vladeck, and Professor Sharkey's essay. He concluded that field preemption is a better alternative than the other proposals.
Last updated Aug. 21, 2008
David S. Evans, William H. Page & Seldon J. Childers, Randal C. Picker
This colloquy on antitrust issues and the Internet began with Professor David S. Evan's Essay on antitrust issues in the emerging global internet economy. He provided an overview of the web-based economy, the economics of web-based businesses, and how competition and regulatory policy affect web-based companies. Professor William H. Page & Seldon J. Childers advanced the discussion with an analysis of the Microsoft-Samba protocol license. Professor Randal C. Picker provided an interesting analysis of privacy concerns in the emerging Web 2.0 infrastructure. He discussed how the companies will be able to utilize users information to personalize Web products and how this will affect other providers abilities to compete.
Last updated July 28, 2008
Mitchell H. Rubinstein, Paul Secunda & David L. Gregory
This colloquy on "me too" evidence in employment discrimination cases began with Professor Mitchell H. Rubinstein's Essay on Sprint/United Management Company v. Mendelsohn. He provided an overview of the decision and considered whether the Supreme Court punted when deciding the case. He concluded that Mendelsohn will likely end up being strong medicine for the plaintiff in employment discrimination cases. Professor Paul Secunda responded with his analysis of the Mendelsohn opinion. In response to Professor Rubinstein, he predicted that "me too" evidence will still largely be kept out under Federal Rule of Evidence 403. Professor David L. Gregory added to the discussion by analogizing "me too" evidence to "he said, she said" evidence. Moreover, he concluded that Mendelsohn is a significant decision and will have an affect on both employee-plaintiffs and employer-defendants. Professor Rubinstein then responded to both Professors Secunda and Gregory concluding that because the lower courts are still confused on "me too" evidence, the Court must take up this issue again in order to prevent unnecessary litigation.
Last updated July 10, 2008
Victor B. Flatt, Carol M. Rose, and Robert L. Glicksman
This colloquy on the various legislative proposals meant to address global climate change began with Professor Victor B. Flatt's wide-ranging survey of the questions at play in the debate, such as what is the best way to determine a goal for the initiative and what tools should be permitted and encouraged by the legislation, and explains how the many proposals address these issues. Professor Carol M. Rose analyzed the proposals' surprising focus on market-based regulation and how market-based options may impact the international response to any climate change legislation. Professor Robert L. Glicksman discussed which federal agencies should be responsible for implementing climate change regulation, the proper measure of discretion that Congress should afford these various agencies, and whether the regulation should trump state and local initiatives. Professor Hari M. Osofsky analyzed climate change legislation in the content of the horizontal and vertical pressures that act on such legislation.
Last updated Mar. 31, 2008
By Scott Dodson, Elizabeth Chamblee Burch, E. King Poor, and Perry Dane
Professor Scott Dodson commented on the recent Bowles v. Russell decision, which determined that the time limit for filing a notice of appeal is mandatory and jurisdictional—and therefore immune to equitable concerns. Professor Dodson criticized the ruling's inconsistency with prior precedent and for the hardships it will impose on courts and litigants; he suggested a better way to characterize statutory limitations would be as mandatory but nonjurisdictional. Professor Elizabeth Chamblee Burch expanded on the criticism by analyzing the inequitable consequences of the jurisdictional or mandatory labels, and argues that the "mandatory" aspect impermissibly leaves no room for the court to consider equity when deciding whether to bar the action. Mr. E. King Poor also considered the history of time limits, but concluded that Bowles was correct based both on the history of the doctrine and the practical results of the jurisdictional classification. Professor Dane argued that despite the jurisdictional classification, nothing in the history of the jurisdiction doctrine requires draconian application and inequitable consequences. Professor Dodson responded to Professor Burch, Mr. Poor, and Professor Dane and concluded that Bowles deserves more thought and attention.
Last updated Feb. 25, 2008
By Elizabeth Joh, D.H. Kaye, and Simon A. Cole
Professor Joh instigated this discussion with her essay, Reclaiming Abandoned DNA: The Fourth Amendment and Genetic Privacy [pdf], in the print Law Review. She warned that government collection of "abandoned DNA" may violate an individual's expectations of privacy. Professor Kaye agreed that shed DNA sample collection is problematic, but dismissed Joh's privacy concerns as science fiction. This prompted Professor Cole to dispute Kaye's assurances that DNA archives could never provide predictive medical information. Kaye responded by delineating the current contours of genetic research. Cole appreciated Kaye's reply for its fuller explanation of the science behind the debate.
Last updated Nov. 5, 2007.
By John O. McGinnis, Michael B. Rappaport, Ethan J. Leib, David S. Law, and David McGowan
Professors McGinnis and Rappaport kicked off this discussion by asserting the proposition that originalist constitutional interpretation is more likely to produce good results, and should be considered a pragmatic jurisprudence. Professor Leib disputed their thesis, asserting deficiencies in the supermajoritarian decisionmaking on which McGinnis and Rappaport rely. McGinnis and Rappaport responded by further expanding the originalism-pragmatism nexus and illustrating the benefits of supermajoritarian rules. Professors Law and McGowan questioned in two parts whether this theory of supermajoritarianism is really pragmatic, suggesting that claims of the benefits of supermajoritarian policymaking are merely theoretical.
Last updated Oct. 15, 2007.
By Lee Epstein, Andrew D. Martin, Kevin M. Quinn & Jeffrey A. Segal; Linda Greenhouse, Stephen B. Burbank, Ward Farnsworth, and David A. Strauss
In their essay, Professor Epstein et al. utilized empirical methods to demonstrate that most Supreme Court Justices exhibit ideological drift over time. Thus, they argued, Presidents should be less concerned with creating a court that demonstrates a particular ideology and more concerned with choosing Justices who will appease their constituents. Linda Greenhouse offered a descriptive account of ways in which the Justices she has studied over the years have changed, and asked why Justices' ideological views drift. Professor Burbank addressed this question in his essay by arguing that preference change must distinguish between sincere change and that which is adopted for strategic reasons. He questioned whether political science methods are able to explain the ideological change of Justices. Professor Farnsworth discussed the limitations of the empirical tools used by Epstein et al. Finally, Professor Strauss defended the received wisdom assailed by Epstein et al. by showing that, historically, Presidents have achieved the ideological results that mattered to them most at the time of appointment.
Last updated Aug. 20, 2007.
By David A. Dana and Ilya Somin
Professor Dana began this exchange with a piece on who is helped by post-Kelo reform, arguing that the middle-class benefits at the expense of the poor. Professor Somin disagreed with Professor Dana's analysis, and argued that even where blight condemnation was not targeted, some reform was better than no reform. Dana's short rejoinder focused on the fact that it was a case involving a middle-class family, rather than a poor family, that spurred national reaction.
Last updated July 9, 2007.
By Tom Lininger and Samuel R. Bagenstos
In his review of Pro Bono in Principle and Practice: Public Service and the Professions by Deborah L. Rhode, Professor Lininger doubted that Rhode's suggestions for improving pro bono participation by lawyers is sufficient. He campaigned for more pro bono commitment from the legal community, and encouraged state bar associations to enforce a mandatory pro bono requirement. In response, Professor Bagenstos questioned whether a mandatory pro bono requirement would actually increase civil rights litigation and argued that this system would weaken the private attorney general system. Lininger conceded that a mandatory pro bono system may not result in an increase in civil rights litigation, but he disagreed that such a system would weaken civil rights litigation.
Last updated April 23, 2007.