March 2013 Vol. 111 No. 5 THE REVIEW

Tribute to Larry Ribstein

Barry E. Adler

A law school job talk for an entry-level candidate is an opportunity for the presenter to put his or her ideas before a faculty in the best possible light. A bit of give-and-take is part of the drill, but the candidate can usually expect the talk to stay more or less on course. My own first job talk, though, given at George Mason University more years ago than I’d like to admit, was attended by the thoroughly exceptional Larry Ribstein and so did not unfold in the usual way.

A few minutes after I began to speak, the questions began. Most were of the kind I expected, asked to determine whether I had thought carefully about my topic, whether I had properly considered alternative arguments, whether, in general, I knew what I was talking about and could express myself competently. But then Larry, whom I had not before met, spoke. Unlike the others, Larry didn’t ask about the paper, which was on insolvency risk, or my defense of its themes. Instead he honed in on a comment that I had made in passing, one only indirectly related to my thesis. If I remember correctly, the remark that caught Larry’s attention was about corporate capital structure. Larry asked me one question about the comment and then, after contemplating my response, followed up with a series of others. He was, it seemed, trying to work out something in his own mind rather than connect his thoughts to my paper. I wasn’t sure what was happening but I remember the feeling of relief when the questioning moved on to others.


Preemption and Choice-Of-Law Coordination

Erin O'Hara O'Connor & Larry E. Ribstein

Legal Entities as Transferable Bundles of Contracts

Kenneth Ayotte & Henry Hansmann

Policeman, Citizen, or Both? A Civilian Analogue Exception to Garcetti v. Ceballos

Caroline A. Flynn

The First Amendment prohibits the government from leveraging its employment relationship with a public employee in order to silence the employee’s speech. But the Supreme Court dramatically curtailed this right in Garcetti v. Ceballos by installing a categorical bar: if the public employee spoke “pursuant to her official duties,” her First Amendment retaliation claim cannot proceed. Garcetti requires the employee to show that she was speaking entirely “as a citizen” and not at all “as an employee.” But this is a false dichotomy—especially because the value of the employee’s speech to the public is no less if she is speaking pursuant to mixed motivations.

A recent Second Circuit case, Jackler v. Byrne, suggests an exception to Garcetti’s categorical bar. Because the public employee’s speech in Jackler had a civilian analogue—that is, because an ordinary citizen could speak in the same manner and to the same audience—the court allowed the employee’s claim to proceed. The Second Circuit’s exception contradicts Garcetti, but it furthers significant First Amendment values while adequately protecting public employers’ interest in controlling employee speech. As such, the Supreme Court should adopt the civilian analogue exception to ameliorate Garcetti’s problematic rule.


Stop Being Evil: A Proposal for Unbiased Google Search

Joshua G. Hazan
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