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Essay
Thayerism
Cass R. Sunstein
Robert Walmsley University Professor, Harvard University.

I am grateful to Zachary Goldstein for superb research assistance.

In the late nineteenth century, James Bradley Thayer urged that an act of Congress should not be struck down unless the constitutional violation “is so clear as to leave no room for reasonable doubt.” Thayer’s beyond-a-reasonable-doubt test helped define constitutional understandings for more than a half-century; Oliver Wendell Holmes, Louis Brandeis, Learned Hand, Benjamin Cardozo, and Felix Frankfurter were practicing Thayerians. Thayerism provided crucial orientation for Alexander Bickel’s conception of judicial review and his embrace of “the passive virtues,” and also for John Hart Ely’s democracy-reinforcing approach to constitutional law. But Thayerism seems to have dropped out of contemporary constitutional law.

Online
Response
Algorithmic Interpretation
Kevin Tobia
Associate Professor, Georgetown University Law Center.

Professor Jonathan Choi’s Measuring Clarity in Legal Text adds to a growing literature in empirical legal interpretation, which uses corpus linguistics and survey-experiments to inform legal interpretation. Measuring Clarity offers two intriguing theses, one positive and one critical. On the “positive” reading, the article defends its word embedding approach as a useful method of first-order legal interpretation. On a “critical” reading, the article employs word embeddings as a new tool to assess textualism’s fundamental linguistic assumptions, concluding that there is a fundamental problem with textualism, or at least its current practice.

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Book review
Chaotic Childhoods
Stephanos Bibas
Judge, U.S. Court of Appeals for the Third Circuit

Stephanos Bibas is a judge on the U.S. Court of Appeals for the Third Circuit and a senior fellow at the University of Pennsylvania Law School. He thanks Brynne Follman and Joseph Graziano for their help.

To understand criminal justice, education, and family law, we lawyers typically look to social scientists, and their external expertise does teach us much. But we often neglect lived experience. Occasionally, we should toggle from the dry regressions and clinical detachment of social science to the internal perspective and expertise of those who live through family breakup, foster care, disrupted schooling, drugs, and crime. And that is what Rob Henderson’s breakout memoir, Troubled, gives us: a window on troubled youth.

Online
Essay
Appealing Magna Carta
Thomas J. McSweeney
Professor of Law, William & Mary Law School

I would like to thank Charlie Donahue, Dick Helmholz, John Hudson, Dan Hulsebosch, Matt Steilen, Jason Taliadoros, and Sarah White for comments on drafts of this Essay. Professors Helmholz and Donahue, both scholars I respect a great deal, have been very generous and gracious, even in the face of my disagreement with some of their conclusions.

In 1999, Professor Richard Helmholz published Magna Carta and the Ius Commune, in which he argued that some of the ideas and language found in Magna Carta provide evidence that the early common law was engaging with the ius commune, the ancestor of modern civil law traditions. This Essay argues that Magna Carta does not provide conclusive evidence whether contemporaries were thinking about Roman and canon law when reforming the common law.

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Considering Napue and the Defense's Role in Correcting False Testimony at Trial
Crystal Kwabea Adu-Poku
JD/MBA, University of Chicago, Class of 2023

She thanks Professor Judith Miller, Abigail Barney, Annie Kors, Matthew Makowski, and the University of Chicago Law Review Online team.

 

The views and opinions expressed in this Essay are solely those of the author. They do not purport to reflect the views or opinions of any entities or individuals she is associated with or represents.

This Essay argues that Gomez v. Commissioner of Correction provides an appropriate, holistic framework for determining when defense counsel should be precluded from raising Napue arguments in post-conviction proceedings.

Online
Essay
Judicial Destruction of the Clean Water Act: Sackett v. EPA
Richard J. Lazarus
Howard J. and Katherine W. Aibel Professor of Law, Harvard Law School

In Sackett v. EPA, under the guise of judicial interpretation of the Clean Water Act, the Court effectively reduced the Act’s coverage of the nation’s streams by as much as 80%, and of the nation’s wetlands by at least 50%. Contrary to the majority’s proffered reasoning, nothing in the relevant statutory language compelled such an unprovoked hit job on the nation’s ability to protect its waters from harmful pollution.

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The Constitutionality of Prohibiting Caste Discrimination
Guha Krishnamurthi
Associate Professor at the University of Maryland Francis King Carey School of Law

Guha Krishnamurthi is an Associate Professor at the University of Maryland Francis King Carey School of Law. He thanks Kevin Brown, Charanya Krishnaswami, Chan Tov McNamarah, Alex Platt, Peter Salib, Joe Thai, attendees of the University of Maryland Carey School of Law Comparative Constitutional Democracy Colloquium for helpful comments, and the editors of the Law Review Online.

The problem of caste discrimination has come into sharp focus in the United States. In the last few years, there have been several high-profile allegations and cases of caste discrimination in employment and educational settings. As a result, organizations—including governmental entities—are taking action, including by updating their rules and regulations to explicitly prohibit discrimination based on caste and initiating enforcement actions against alleged caste discrimination.

Online
Response
For Bankruptcy Exceptionalism
Jared I. Mayer
Business Restructuring Associate at Ropes & Gray, LLP

Jared I. Mayer is a Business Restructuring Associate at Ropes & Gray, LLP. He received his J.D. from the University of Chicago Law School in 2021, his M.A. from Johns Hopkins University in 2018, and his B.A. from Johns Hopkins University in 2018. He thanks Professor Seymour, as well as Ryan Preston Dahl, Katharine Scott, and the editors of The University of Chicago Law Review Online for their helpful comments on earlier drafts of this Essay. The views presented in this Essay are his alone and do not reflect the views of Ropes & Gray LLP. All errors are his alone as well.

In his recent article, Against Bankruptcy Exceptionalism, Professor Jonathan M. Seymour argues that bankruptcy courts have wrongly bucked the Supreme Court’s trend toward textualism. Bankruptcy courts believe that they need to approach the Bankruptcy Code pragmatically in light of the unique dynamics inherent in bankruptcy practice and therefore adopt purposivist, equitable, or “rough justice” approaches to facilitate that kind of pragmatism—an attitude that Professor Seymour calls “bankruptcy exceptionalism.”