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April 4, 2018

Eyes Wide Open: What Social Science Can Tell Us About the Supreme Court's Use of Social Science

The Northwestern University Law Review’s 2017 Symposium asked whether McCleskey v. Kemp closed the door on social science’s ability to meaningfully contribute to equal protection deliberations. This inquiry is understandable; McCleskey is widely understood to have rendered statistical racial disparities doctrinally irrelevant in the equal protection context. We suggest, however, that this account overstates McCleskey and its doctrinal impact. Roughly fifteen years after McCleskey, Chief Justice Rehnquist— himself part of the McCleskey majority—invoked admissions data to support his conclusion that the University of Michigan Law School unconstitutionally discriminated against White applicants. Chief Justice Rehnquist’s disparate treatment of statistical evidence in McCleskey and Grutter v. Bollinger reveals the doctrine’s underdeterminacy and invites a corresponding inquiry: why do Justices rely on social science in some cases, yet reject it in others? We propose that one answer lies at the intersections of Critical Race Theory and empirical scholarship on motivated social cognition. 

February 27, 2018

Judicial Mistakes in Discovery

A recent wave of scholarship argues that judges often fail to comply with binding rules or precedent and sometimes apply overturned laws. Scholars have hypothesized that the cause of this “judicial noncompliance” may be flawed litigant briefing that introduces mistakes into judicial decisions—an idea this Essay calls the “Litigant Hypothesis.” The Essay presents a preliminary study aimed at exploring ways of testing the validity of the Litigant Hypothesis. Employing an empirical analysis that exploits recent amendments to Federal Discovery Rule 26, this Essay finds that the strongest predictor of noncompliance in a dataset of discovery decisions is indeed faulty briefs. This study concludes that the Litigant Hypothesis of noncompliance may have explanatory value. 

February 22, 2018

Lone Wolf Terrorism: Types, Stripes and Double Standards

This Essay contributes a timely reconceptualization of the phenomenon, coupled with a typology adopted from social science, for understanding the myriad forms of lone wolf terrorism. In addition to contributing the theoretical frameworks to further examine lone wolf terrorism within legal scholarship, this Essay examines how the assignment of the lone wolf designation by law enforcement functions as: (1) a presumptive exemption from terrorism for white culprits; and (2) a presumptive connection to terrorism for Muslim culprits. This asymmetry is rooted in the distinct racialization of white and Muslim identity, and it is driven by War on Terror baselines that profile Muslim identity as presumptive of a terror threat.

February 7, 2018

Bridges II: The Law-STEM Alliance & Next Generation Innovation — Introduction and Combined Responses

Northwestern Law Review Online presents a discussion of the Law–STEM intersection in this special project. This project arose as part of a conference held at Northwestern Pritzker School of Law in October 2016: Bridges II: The Law–STEM Alliance & Next Generation Innovation. After a robust conference that focused on the role of different disciplines in the innovation process, a group of scholars (mostly legal scholars who do interdisciplinary work) convened informally to discuss ways to foster interdisciplinary innovation and to overcome barriers to collaboration between legal and STEM professionals. We had such an interesting discussion that we decided to ask participants to submit written answers to questions discussed at that session. We provided five questions to the participants. Participants answered either a subset of the questions or wrote essays responding to the questions as a whole.