Citizenship, Organizational Citizenship, and the Laws of Overlapping Obligations

The article reveals a deep ambivalence in the law about the role of individual dissent within public and private settings and offers a way to reconcile the conflicting demands of organizational loyalty and legal compliance. It describes the vast inconsistencies that currently exist in the laws of private sector wrongful discharge, public employee First Amendment […]

Warrantless Wiretapping, FISA Reform, and the Lessons of Public Liberty: A Comment on Holmes’s Jorde Lecture

The Jorde Lecture by Holmes burns with the light of clear analysis and calm rationality. In this Essay, I wish to build on it through consideration of its model of “public liberty.” In particular, I discuss how private liberty, and in particular, information privacy, has an important role, indeed is a precondition, for public liberty. […]

Philosophy and the Politics of Unreason

Stephen Holmes has presented a lecture full of good ideas and genuine common sense. If I were in a position to hire him as Deputy Secretary of State for Policy and Planning, I would. Over the past few years, he has produced a number of pieces that identify the errors and dangers in arguments made […]

The Perilous Dialogue

The security or freedom framework fails to capture the single most important characteristic of counterterrorist law: increased executive power that shifts the balance of power between the branches of government. At each point where the legislature would be expected to push back””at the introduction of the measures, at the renewal of temporary provisions, and in […]

In Case of Emergency: Misunderstanding Tradeoffs in the War on Terror

Emergency-room personnel are acutely aware of the serious risks posed by excessive delay. Understanding the need for immediate and unhesitating action, they nevertheless routinely consume precious time to follow protocols drilled into them and practiced in advance. Why do they do this? They do it, quite obviously, to minimize the risk of making fatal but […]

Against Moral Rights

This Article attacks the foundations of moral rights scholarship, law, and theory. The author focuses on the moral right of “integrity,” called “the heart of the moral rights doctrine,” which allows an artist to prevent modification, and in some cases, destruction of his art work. Her argument is that moral rights actually endanger art in […]

Enterprise Liability: Reviewing and Revitalizing Liability for Corporate Groups

This Comment explores enterprise liability as it applies to corporate groups. It argues that the doctrine of limited liability, which shields a corporation’s shareholders from the corporation’s debts, is problematic from both a normative and an efficiency perspective when applied to the parent/subsidiary context, and in particular to preventing parent liability for a subsidiary’s mass […]

The Federal Courts as a Franchise: Rethinking the Justifications for Federal Question Jurisdiction

This article provides a critical analysis of the view, dominant among courts and scholars, that the lower federal courts’ jurisdiction to adjudicate cases involving questions of federal law can be justified on the ground that federal judges are more likely than their state court counterparts to provide evenhanded, uniform, expert adjudication of federal law. It […]