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Northwestern University Law Review : Colloquy : Prior Colloquies
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.
Capital Punishment for Child Rape Offenders
Douglas A. Berman & Stephanos Bibas, Morris B. Hoffman
This colloquy on Kennedy v. Louisiana began with Professors Douglas A. 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.
Last updated Aug. 4, 2008
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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
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Employment Discrimination and "Me Too" Evidence
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
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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
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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
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Privacy Risks of DNA Archiving
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.
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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.
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Ideological Drift Among Supreme Court Justices
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.
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Post-Kelo Reforms and Blight Condemnation
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.
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Mandatory Pro Bono Requirements
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.
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Getting at Recess Appointments
By Seth Barrett Tillman and Brian C. Kalt
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 Feb. 26, 2007.
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