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Harvard Law Review, 124: 1 (2010)

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Volume 124 · November 2010 · Number 1

The Supreme Court 2009 Term

FOREWORD
Federalism All the Way Down
Heather K. Gerken

COMMENTS
Citizens United v. FEC: Corporate Political Speech

Corporate Political Speech: Who Decides?
Lucian A. Bebchuk and Robert J. Jackson, Jr.

On Political Corruption
Samuel Issacharoff

Two Concepts of Freedom of Speech
Kathleen M. Sullivan

LEADING CASES
CRIMINAL LAW AND PROCEDURE
Fourth Amendment — Reasonable Expectation of Privacy: City of Ontario v. Quon.

Fifth Amendment — Invocation of the Right to Cut Off Questioning: Berghuis v. Thompkins.

Sixth Amendment — Effective Assistance of Counsel: Padilla v. Kentucky.

Eighth Amendment — Juvenile Life Without Parole Sentences: Graham v. Florida.

ESTABLISHMENT CLAUSE
Endorsement Test: Salazar v. Buono.

FOURTEENTH AMENDMENT
Incorporation of the Right to Keep and Bear Arms: McDonald v. City of Chicago.

FREEDOM OF SPEECH AND EXPRESSION
Categorical Exclusions: United States v. Stevens.

Freedom of Expressive Association: Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez.

Material Support for Terrorism: Holder v. Humanitarian Law Project

Public Disclosure of Referendum Petitions: Doe v. Reed.

NECESSARY AND PROPER CLAUSE
Civil Commitment: United States v. Comstock.

SEPARATION OF POWERS
Removal Power: Free Enterprise Fund v. Public Company Accounting Oversight Board.

TAKINGS CLAUSE
Judicial Takings: Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection.

DIVERSITY JURISDICTION
Corporate Citizenship: Hertz Corp. v. Friend.

FEDERAL RULES OF CIVIL PROCEDURE
Preemption of State Procedural Rules: Shady Grove Othopedic Associates, P.A. v. Allstate Insurance Co.

STATUS OF INTERNATIONAL LAW
Deference to the Executive — Hague Convention on the Civil Aspects of International Child Abduction: Abbott v. Abbott.

CIVIL RIGHTS ACT, TITLE VII
Statute of Limitations: Lewis v. City of Chicago.

CIVIL RIGHTS ATTORNEY’S FEES AWARD ACT
Performance-Based Enhancements: Perdue v. Kenny A. ex rel. Winn.

HONEST SERVICES FRAUD
Covered Offenses: Black v. United States; Skilling v. United States; Weyhrauch v. United States.

PATENT
Patent-Eligible Subject Matter: Bilski v. Kappos.

REVIEW OF ADMINISTRATIVE ACTION
National Labor Relations Act — Agency Jurisdiction: New Process Steel, L.P. v. NLRB.

RICO ACT
Proximate Causation: Hemi Group, LLC v. City of New York.

SHERMAN ACT
Quick Look Rule of Reason — American Needle, Inc. v. National Football League.

STATISTICS
The Statistics

RECENT PUBLICATIONS
Recent Publications

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Harvard Law Review, 123: 8 (2010)

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Volume 123 · June 2010 · Number 8

ARTICLES
The Eleventh Amendment and the Nature of the Union
Bradford R. Clark

The Easy Case for Products Liability Law: A Response to Professors Polinsky and Shavell
John C.P. Goldberg and Benjamin C. Zipursky

A Skeptical Attitude About Product Liability Is Justified: A Reply to Professors Goldberg and Zipursky
A. Mitchell Polinsky and Steven Shavell

BOOK REVIEW
The Lure of Large Numbers
John Ferejohn

NOTES
Nontaxpayer Standing, Religious Favoritism, and the Distribution of Government Benefits: The Outer Bounds of the Endorsement Test

Admitting Doubt: A New Standard for Scientific Evidence

Justifying the Chevron Doctrine: Insights from the Rule of Lenity

Uncommon Goods: On Environmental Virtues and Voluntary Carbon Offsets

RECENT CASES
Fifth Circuit Upholds Texas School District’s Dress Code Under Intermediate Scrutiny. — Palmer ex rel. Palmer v. Waxahachie Independent School District, 579 F.3d 502 (5th Cir. 2009), cert. denied, 130 S. Ct. 1055 (2010).

Ninth Circuit Finds a Within-Guidelines Sentence for Illegal Reentry To Be Substantively Unreasonable. — United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir.), reh’g en banc denied, 586 F.3d 1176 (9th Cir. 2009).

RECENT PUBLICATIONS
Recent Publications

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Harvard Law Review, 123: 7 (2010)

posted by Harvard Law Review

Volume 123 · May 2010 · Number 7

ARTICLE

Bundling and Entrenchment
Lucian A. Bebchuk and Ehud Kamar

2009 OLIVER WENDELL HOLMES LECTURES
Dignity and Defamation: The Visibility of Hate
Jeremy Waldron

BOOK REVIEW
Cause Lawyering for People with Disabilities
Michael Ashley Stein, Michael E. Waterstone, and David B. Wilkins

NOTES
The Pakistani Lawyers’ Movement and the Popular Currency of Judicial Power

The Ineligibility Clause’s Lost History: Presidential Patronage and Congress, 1787—1850

Overbreadth and Listeners’ Rights

RECENT CASES
Supreme Judicial Court of Massachusetts Recognizes Cause of Action for Medical Monitoring of Tobacco Users. — Donovan v. Philip Morris USA, Inc., 914 N.E.2d 891 (Mass. 2009).

Third Circuit Strikes Down Prophylactic Regulations Governing Speech Surrounding Health Care Facilities Providing Abortions. — Brown v. City of Pittsburgh, 586 F.3d 263 (3d Cir. 2009).

Second Circuit Holds that Alleged Victim of Extraordinary Rendition Did Not State a Bivens Claim. — Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (en banc).

Tenth Circuit Holds that a Defendant Is Prejudiced When His Lawyer’s Deficient Performance Leads Him To Forego a Plea Bargain and Face a Fair Trial. — Williams v. Jones, 571 F.3d 1086 (10th Cir. 2009) (per curiam).

RECENT PROPOSED LEGISLATION
Congress Considers Bill To Prohibit Employment Discrimination on the Basis of Sexual Orientation and Gender Identity. — Employment Nondiscrimination Act of 2009, H.R. 3017, 111th Cong. (2009).

RECENT PUBLICATIONS
Recent Publications

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Harvard Law Review, 123: 6 (2010)

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Volume 123 · April 2010 · Number 6

ARTICLES
Race, Region, and Vote Choice in the 2008 Election: Implications for the Future of the Voting Rights Act
Stephen Ansolabehere, Nathaniel Persily, and Charles Stewart III

The Uneasy Case for Product Liability
A. Mitchell Polinsky and Steven Shavell

NOTE
The Best of a Bad Lot: Compromise and Hybrid Religious Exemptions

RECENT CASES
California Supreme Court Classifies Proposition 8 as “Amendment” Rather than “Revision.” — Strauss v. Horton, 207 P.3d 48 (Cal. 2009).

Ninth Circuit Holds that Retroactive Application of SORNA to Juvenile Violates Ex Post Facto Clause. — United States v. Juvenile Male, 581 F.3d 977 (9th Cir. 2009).

RECENT LEGISLATION
California Establishes Pilot Programs To Expand Access to Counsel for Low-Income Parties. — Act of Oct. 11, 2009, ch. 457 (codified in scattered sections of CAL. BUS. & PROF. CODE and CAL. GOV’T CODE).

RECENT REGULATION
FTC Extends Endorsement and Testimonial Guides To Cover Bloggers. — 74 Fed. Reg. 53,124 (Oct. 15, 2009) (to be codified at 16 C.F.R. pt. 255).

RECENT PUBLICATIONS
Recent Publications

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Harvard Law Review, 123: 5 (2010)

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Volume 123 · March 2010 · Number 5

ARTICLES
Economic Crisis and the Rise of Judicial Elections and Judicial Review
Jed Handelsman Shugerman

Shareholder Opportunism in a World of Risky Debt
Richard Squire

ESSAY
Inducing Moral Deliberation: On the Occasional Virtues of Fog
Seana Valentine Shiffrin

DEVELOPMENTS IN THE LAW
Developments in the Law – State Action and the Public/Private Distinction

NOTES
The Single Publication Rule and Online Copyright: Tensions Between Broadcast, Licensing, and Defamation Law

Designing a Prisoner Reentry System Hardwired To Manage Disputes

RECENT CASES
First Circuit Adopts Plain Meaning of Requirement that Plaintiffs Give Government Their Information Before Filing Suit. — United States ex rel. Duxbury v. Ortho Biotech Products, L.P., 579 F.3d 13 (1st Cir. 2009).

Ninth Circuit Requires Case-by-Case Prudential Analysis of Exhaustion of Local Remedies in Foreign Sovereign Immunities Act Suits. — Cassirer v. Kingdom of Spain, 580 F.3d 1048 (9th Cir. 2009).

Ninth Circuit Strikes Down California Law Extending Statute of Limitations for the Recovery of Holocaust-Era Artwork. — Von Saher v. Norton Simon Museum of Art at Pasadena, No. 07-56691, 2010 WL 114959 (9th Cir. Jan 14, 2010).

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Harvard Law Review, 123: 4 (2010)

posted by Harvard Law Review

Volume 123 · February 2010 · Number 4

ARTICLE
Intellectual Property Law and the Sumptuary Code
Barton Beebe

BOOK REVIEW
The Possibilities and Limitations of Privatization
Edward Rubin

NOTES
Prosecutorial Power and the Legitimacy of the Military Justice System

Badging: Section 230 Immunity in a Web 2.0 World

Making Ballot Initiatives Work: Some Assembly Required

RECENT CASES
En Banc Ninth Circuit Holds that the Government Should Waive Reliance on Plain View Doctrine in Digital Contexts. — United States v. Comprehensive Drug Testing, Inc., 579 F.3d 989 (9th Cir. 2009) (en banc).

Maryland Court of Appeals Sets Out Process Required Before Court May Compel Identification of Anonymous Internet Defendants. — Independent Newspapers, Inc. v. Brodie, 966 A.2d 432 (Md. 2009).

Fifth Circuit Equally Divides on Decision To Uphold Judgment Against District Attorney’s Office for Withholding Exculpatory Evidence. — Thompson v. Connick, 578 F.3d 293 (5th Cir. 2009) (en banc).

Third Circuit Issues Split Decision in Case Involving Gay Man’s Harassment Claims. — Prowel v. Wise Business Forms, Inc., No. 07-3997, 2009 U.S. App. LEXIS 19350 (3d Cir. Aug. 28, 2009).

Fourth Circuit Upholds Award of Punitive but Not Statutory Damages. — Van Alstyne v. Electronic Scriptorium, Ltd. , 560 F.3d 199 (4th Cir. 2009).

Ninth Circuit Holds Montana Election Contribution Disclosure Requirements Unconstitutional as Applied to De Minimis Contributions. — Canyon Ferry Road Baptist Church of East Helena, Inc. v. Unsworth, 556 F.3d 1021 (9th Cir. 2009).

RECENT SIGNING STATEMENT
President Obama Issues First Constitutional Signing Statement, Declares Appropriations Bill Provisions Unenforceable. — Statement on Signing the Omnibus Appropriations Act, 2009, Daily Comp. Pres. Doc. No. DCPD200900145 (Mar. 11, 2009).

RECENT PUBLICATIONS
Recent Publications

March 2, 2010 at 10:38 am Posted in: Law Rev (Harvard), Law Rev Contents Print This Post Comments Closed

Harvard Law Review, 123: 3 (2010)

posted by Harvard Law Review

Volume 123 · January 2010 · Number 3

ARTICLES
Complementary Constraints: Separation of Powers, Rational Voting, and Constitutional Design
Jide O. Nzelibe and Matthew C. Stephenson

Enabling Employee Choice: A Structural Approach to the Rules of Union Organizing
Benjamin I. Sachs

NOTE
Central Bank and Intellectual Property

RECENT CASES
Constitutional Law — Eighth Amendment — Eastern District of California Holds that Prisoner Release Is Necessary To Remedy Unconstitutional California Prison Conditions — Coleman v. Schwarzenegger, No. CIV S-90-0520 LKK JFM P, 2009 WL 2430820 (E.D. Cal. Aug. 4, 2009).

Criminal Law — Sentencing Guidelines — Seventh Circuit Holds that Involuntary Manslaughter Is Not a Crime of Violence for Sentencing Guidelines’ Recidivism Enhancement. — United States v. Woods, 576 F.3d 400 (7th Cir. 2009).

Federal Statutes — Alien Tort Statute — Second Circuit Looks Beyond Complaint To Find State Action Requirement Satisfied. — Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2d Cir. 2009).

Criminal Law — Supervised Release — Third Circuit Approves Decade-Long Internet Ban for Sex Offender — United States v. Thielemann, 575 F.3d 265 (3d Cir. 2009).

First Amendment — Defamation Law — First Circuit Applies Libel Law that Does Not Allow Truth as a Defense in Cases of “Actual Malice.” — Noonan v. Staples, Inc., 556 F.3d 20, reh’g denied, 561 F.3d 4 (1st Cir. 2009).

Federal Government Litigation — Equal Access to Justice Act — Fourth Circuit Holds that Attorney’s Fees Are Payable to Claimant and Are Eligible for Administrative Offset. — Stephens ex rel. R.E. v. Astrue, 565 F.3d 131 (4th Cir. 2009).

Constitutional Law — Equal Protection — New York Court of Appeals Holds that State May Restrict Legal Alien Access to Disability Benefits. — Khrapunskiy v. Doar, 909 N.E.2d 70 (N.Y. 2009).

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Harvard Law Review, 123: 2 (2009)

posted by Harvard Law Review

Harvard Law Review

Volume 123 · December 2009 · Number 2

ARTICLES
Tying, Bundled Discounts, and the Death of the Single Monopoly Profit Theory
Einer Elhauge

Mobile Capital, Local Economic Regulation, and the Democratic City
Richard C. Schragger

NOTE
Textualism as Fair Notice

RECENT CASES
Constitutional Law — Speech or Debate Clause — D.C. Circuit Quashes Subpoenas for Congressman’s Testimony to the House Ethics Committee. — In re Grand Jury Subpoenas, 571 F.3d 1200 (D.C. Cir. 2009).

Customary International Law — Extradition — Eleventh Circuit Holds that “Rule of Specialty” Applies Only When Provided by Treaty. — United States v. Valencia-Trujillo, 573 F.3d 1171 (11th Cir. 2009).

Civil Procedure — Pleading Requirements — Eleventh Circuit Dismisses Alien Tort Statute Claims Against Coca-Cola Under Iqbal’s Plausibility Pleading Standard. — Sinaltrainal v. Coca-Cola Co., No. 06-15851, 2009 WL 2431463 (11th Cir. Aug. 11, 2009).

Criminal Law — Search and Seizure — D.C. Circuit Holds that Police Checkpoint Program Likely Violates the Fourth Amendment. — Mills v. District of Columbia, 571 F.3d 1304 (D.C. Cir. 2009).

Constitutional Law — Free Exercise Clause — Ninth Circuit Rejects Strict Scrutiny for Pharmacy Dispensing Requirement. — Stormans, Inc. v. Selecky, 571 F.3d 960 (9th Cir. 2009).

RECENT REGULATION
Employment Law — Family and Medical Leave Act of 1993 — Department of Labor Regulations Alter Substitution of Paid Leave Provision Under the FMLA. — FMLA Final Rule, 73 Fed. Reg. 67,934 (Nov. 17, 2008) (codified at 29 C.F.R. pt. 825 (2009)).

RECENT PUBLICATIONS
Recent Publications

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Harvard Law Review, 123: 1 (2009)

posted by Harvard Law Review

Volume 123 · November 2009 · Number 1

The Supreme Court 2008 Term

FOREWORD

System Effects and the Constitution
Adrian Vermeule

COMMENTS
Caperton v. A.T. Massey Coal Co.: Due Process Limitations on the Appearance of Judicial Bias

Electing Judges, Judging Elections, and the Lessons of Caperton
Pamela S. Karlan

What Everybody Knows and What Too Few Accept
Lawrence Lessig

Relinquished Responsibilities
Penny J. White

LEADING CASES
CRIMINAL LAW AND PROCEDURE
Fourth Amendment — Exclusionary Rule: Herring v. United States.

Fourth Amendment — Search by School Officials: Safford Unified School District No. 1 v. Redding.

Fourth Amendment — Search Incident to Arrest: Arizona v. Gant.

Sixth Amendment — Right to Counsel — Interrogation Without Counsel Present: Montejo v. Louisiana.

Sixth Amendment — Sentencing — Factfinding in Sentencing for Multiple Offenses: Oregon v. Ice.

Sixth Amendment — Witness Confrontation — Testimony of Crime Lab Experts: Melendez-Diaz v. Massachusetts.

DUE PROCESS
Peremptory Challenges — Harmless Error Doctrine: Rivera v. Illinois.

Postconviction Access to DNA Evidence: District Attorney’s Office v. Osborne.

FREEDOM OF SPEECH AND EXPRESSION
Government Speech: Pleasant Grove City v. Summum.

Government Subsidies of Political Speech: Ysursa v. Pocatello Education Ass’n.

CIVIL PROCEDURE
Pleading Standards: Ashcroft v. Iqbal.

FEDERAL PREEMPTION OF STATE LAW
Preemption of State Common Law Claims: Wyeth v. Levine.

QUALIFIED IMMUNITY
Order of Analysis: Pearson v. Callahan.

CIVIL RIGHTS ACT, TITLE VII
Compliance Efforts: Ricci v. DeStefano.

FOREIGN SOVEREIGN IMMUNITIES ACT
Iraqi Sovereign Immunity: Republic of Iraq v. Beaty.

HAWAII APOLOGY RESOLUTION
Alienation of Hawaiian Land: Hawaii v. Office of Hawaiian Affairs.

IDENTITY THEFT
Mens Rea Requirement: Flores-Figueroa v. United States.

NATIONAL BANK ACT
Preemption of State Law Enforcement: Cuomo v. Clearing House Ass’n.

NATIONAL LABOR RELATIONS ACT
Waiver of Right to a Federal Forum: 14 Penn Plaza LLC v. Pyett.

REVIEW OF ADMINISTRATIVE ACTION
Clean Water Act — Judicial Review of Cost-Benefit Analysis: Entergy Corp. v. Riverkeeper, Inc.

Communications Act — Scope of Arbitrary and Capricious Review: FCC v. Fox Television Stations, Inc.

VOTING RIGHTS ACT
Preclearance: Northwest Austin Municipal Utility District No. One v. Holder.

Vote Dilution: Bartlett v. Strickland.

STATISTICS
The Statistics

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