The Clean Air Act of 1970 produced a revolution in environmental law. From its unique approach to federalism to its technology forcing provisions, it remains an innovative statute to this day. In light of the growing threat posed by climate change, federal administrators have worked to adapt its text to deal with greenhouse gasses and carbon emissions. Global warming, though, is not the only context in which the Clean Air Act (CAA) can be used in ways not originally intended. Although not meant as an Continue reading →
What is a law review article? Does America know? How might we help America in this regard? Here, we approach the first question on the bias: As we have found, a growing body of learning and empirical evidence shows that genres are not merely forms, but forms that anticipate their substance. In this Article, then, we try to capture this action by undertaking the first and only comprehensive “performative study” of the genre of the law review article. Continue reading here.
The Fourth Amendment exclusionary rule is experiencing death by a thousand cuts. Since the Supreme Court created the rule, its opinions have whittled away at the rule’s application with various exceptions and limitations. So it is today that the Court only finds exclusion appropriate where the benefits of suppressing evidence outweigh its costs. That rarely happens, says the Court. After all, what benefit could outweigh the cost of letting the guilty go free? Apparently not the benefit of deterring the violation of an elementary Fourth Continue reading →
Bob Nagel is a well-known and persistent critic of Supreme Court decision making—and in particular, the Court’s stated formulae for how those decisions are reached. Bob’s neologism, “the formulaic Constitution,” was not coined to be an honorific term. For Bob, the Court’s announced rationales often seem hollow and thus quite manipulable, disguising whatever might have been the Court’s real reasons for reaching a decision and perhaps even blinding the Court itself to those reasons. Those of us who are unfortunately tapped by our deans to Continue reading →