General Law Revivalism and the Problem of 1938 — a huge new piece from my colleague/coauthor/friends Curt Bradley and Jack Goldsmith arguing against recent work by me, Steve Sachs, Jud Campbell and others trying to revive a pre-Erie view of the law. As Dan and I discuss a bit on the podcast this week, I think the article is right about the importance of Erie, but directionally incorrect about whether Erie is good or bad. But it’s a great piece and will hopefully provoke a lot more discussion, including by me.
Unconstitutional Conditions and the Doctrine of Public Rights, by Ilan Wurman. A new entry in what I (and perhaps I alone) think of as the Nelson–Harrison debate. Also relevant to my Adjudication Outside Article III.
ADHD, the ADA, and First-Year Law School Examinations, by Luke Meier. A detailed legal argument that federal disability law does not in fact require the “standard operating procedure at most law schools” of giving extra time on first-year exams to those diagnosed with ADHD.
Slightly ancillary to this article, and this may deserve a separate post at some point, but is some legal outfit, think tank, or legal scholar making a list of things that the current administration could/will/should do in this area? Revise the various regs and guidance about examination accommodations? Bring a 60(b)(5) motion in the LSAC consent decree? Etc. I do not claim to know what could/would/should be done, but would love to see the list.
Finally, I have an article in the newest volume of Liberties, one of my favorite publications. It is called Marbury Now, and both tells and retells the myth of Marbury, and then argues for the relevance of these myths to the Supreme Court and the Shadow/Emergency/Interim Docket today. (Along with asides on departmentalism, judicial “institutionalism,” confirmation hearing theater, and more.) It was a really fun thing to write, and a slightly unusual genre for me. To read the whole thing issue you’ll have to subscribe or find a newsstand, but I think you can get a free article by registering and giving your email address. But if you want to spend your free article on Agnes Callard’s In Search of the Leisure Class or something else, I’d understand.