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February 7, 2018

A Meeting of Innovation Minds

This somewhat unorthodox Essay, written jointly by von Hippel and Torrance at the request of the Northwestern University Law Review Online, relates how their collegial collaboration began and expanded to enrich their understandings of innovation, in the hopes of encouraging more researchers to pursue cross-disciplinary collaboration. Collaboration between scholars with expertise from disparate fields of scholarship has long been an effective method of intellectual cross-fertilization. Although not every interdisciplinary collaboration is successful, this Essay illustrates the promise of one that, at least in the minds of the authors, succeeded, and exhorts scholars across any fields to consider collaborating with scholars whose research is potentially complementary. The result can be meaningful, and sometimes surprising, insights for both fields.

January 25, 2018

Reconsidering Incitement, Tinker and the Heckler’s Veto on College Campuses: Richard Spencer and the Charlottesville Factor

This Essay analyzes key First Amendment issues surrounding Richard Spencer and Milo Yiannopoulos speaking on public university campuses. Some institutions have flatly banned Spencer, citing fears of incitement to violence but also sparking federal lawsuits. Other schools have permitted Spencer to speak, but at massive security costs, in an attempt to prevent a so-called heckler’s veto. This Essay examines the tension between providing a public platform for controversial speakers and the costs associated with doing so, including the relevance of the Supreme Court’s aging incitement test created in Brandenburg v. Ohio. It also questions the Court’s 1992 ruling in Forsyth County v. Nationalist Movement restricting governmental entities’ ability to shift escalating security fees to speakers based on fears of violence.

January 4, 2018

MDL v. Trump: The Puzzle of Public Law in Multidistrict Litigation

Litigation against the Trump administration has proliferated rapidly since the inauguration. As cases challenging executive actions, such as the Travel Ban, multiply in federal courts around the country, an important procedural question has so far not been considered: should these sets of cases be consolidated in a single court under the Multidistrict Litigation Act? Multidistrict litigation, or MDL, has become one of the most prominent parts of federal litigation and offers substantial benefits by coordinating litigation pending in geographically dispersed federal courts. Arguably, those benefits would also accrue if “public law” cases were given MDL treatment. There also are some underappreciated strategic reasons why both plaintiffs and the government might want to invoke the MDL process in these cases—and we suspect that, sooner rather than later, one of these parties might give MDL a try.

This Essay argues that although the MDL statute would allow for consolidation of these public-law cases, there are prudential reasons why the judges in charge of MDL should stay their hands. In our view, these cases rarely achieve the efficiencies of most MDLs, and there is value to these cases undergoing scrutiny in multiple trial and appellate courts before they percolate upward to Supreme Court review. Moreover, consolidation of these cases would raise the political profile of the MDL process, and thus might politicize the MDL itself as well as the selection of its judges. This politicization could undermine MDL’s primary role in mass-tort litigation—and, indeed, it risks harming the national tort system more generally.

November 19, 2017

The Wages of Genetic Entitlement: The Good, the Bad, and the Ugly in the Rape Survivor Child Custody Act

This Essay analyzes flaws and assumptions in the recently enacted Rape Survivor Child Custody Act. The RSCCA offers a window into the problems with defining parenthood in terms of genes instead of caretaking relationships, which is what led to the problem of rapists being able to claim parental rights in the first place. Rather than address that underlying defect in family law, the statute attempts a solution that might work if all rapists were strangers, all rapists were men, and all rape victims were women, but glosses over complicated problems of violence and coercion in relationships. Despite this failure to grapple with hard cases, the RSCCA helps us see how the biological processes of reproduction are necessarily intertwined with the definition of legal parenthood.