December 2008 Vol. 107 No. 3 THE REVIEW
ARTICLES

The Myth and the Reality of American Constitutional Exceptionalism

Stephen Gardbaum

This Article critically evaluates the widely held view inside and outside the United States that American constitutional rights jurisprudence is exceptional. There are two dimensions to this perceived American exceptionalism: the content and the structure of constitutional rights. On content, the claim focuses mainly on the age, brevity, and terseness of the text and on the unusually high value attributed to free speech. On structure, the claim is primarily threefold. First, the United States has a more categorical conception of constitutional rights than other countries. Second, the United States has an exceptionally sharp public/private division in the scope of constitutional rights resulting in their lesser reach into private conduct. Third, the U.S. Constitution is exclusively a charter of negative rights and so rejects the types of positive constitutional rights, including social and economic rights, that many other modern constitutions recognize.

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Uncertainty Revisited: Legal Prediction and Legal Postdiction

Ehud Guttel & Alon Harel
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NOTES

A Narrow Path to Diversity: The Constitutionality of Rezoning Plans and Strategic Site Selection of Schools After Parents Involved

Steven T. Collis

Justice Kennedy’s concurrence in Parents Involved in Community Schools v. Seattle School District Number 1 raised an important and timely constitutional issue: whether the Constitution permits K–12 public school districts not under existing desegregation orders to use site selection of new schools or rezoning plans to achieve racial diversity. Numerous scholars and journalists have interpreted Justice Kennedy’s concurrence as explicitly answering the question in the affirmative. This Note argues that the opposite is true. Justice Kennedy’s past jurisprudence, as well as his language in Parents Involved, favors the use of strict scrutiny.

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A Call for the End of the Doctrine of Realignment

Jacob S. Sherkow
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& Other Current Events

Speedy Trial as a Viable Challenge to Chronic Underfunding in Indigent-Defense Systems

Across the country, underresourced indigent-defense systems create delays in taking cases to trial...

A Blended Approach to Reducing the Costs of Shareholder Litigation

Multiforum litigation and federal securities law class actions impose heavy costs on corporations and...

The Scope of Precedent

The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales...

Reinventing Copyright and Patent

Intellectual property systems all over the world are modeled on a one-size-fits-all principle. However...

Protecting Whistleblower Protections in the Dodd-Frank Act

In 2008, the United States fell into its worst economic recession in over seventy years. In response,...
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