Category: Law Rev Forum

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Cardozo Law Review, Vol. 34, Issue 2


Articles

Cartels as Rational Business Strategy: Crime Pays
John M. Connor & Robert H. Lande 427

Dynamic Fiduciary Duties
Andrew S. Gold 491

The Twilight of Equity Liquidity
Jeff Schwartz 531

The Cultural Analysis Paradigm: Women and Synagogue Ritual as a Case Study
Roberta Rosenthal Kwall 609

Can a Computer Intercept Your Email?
Bruce E. Boyden 669

Discovery About Discovery: Sampling Practice and the Resolution of Discovery  Disputes in an Age of Ever-Increasing Information
Charles Yablon & Nick Landsman-Roos 719

Notes 

Terminating Beyond the Limits: CMS Is Overreaching in Its Attempt to Regulate ACOs According to Antitrust Standards
Benjamin M. Zegarelli 781

A Power and a Duty: Prosecutorial Discretion and Obligation in United States Sentencing Guideline § 3E1.1(B)
Laura Waters 813

A New Paradigm: Domicile as the Exclusive Basis for the Exercise of General Jurisdiction over Individual Defendants
Emily Eng 845

 

For more information on responding to any of these articles on Cardozo Law Review’s online companion, Cardozo Law Review de•novo, please visit us here.

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Vanderbilt Law Review En Banc – New Publications

Vanderbilt Law Review En Banc is pleased to announce several new publications.

Three response essays in our Fisher v. University of Texas at Austin Roundtable are now available, including:

Revisiting Grutter and Its Diversity Rationale: A Few Reactions to Professor Blumstein’s Critique
Vikram David Amar · 65 Vand. L. Rev. En Banc 195 (2012)

Whatever
Girardeau A. Spann · 65 Vand. L. Rev. En Banc 203 (2012)

The Education of an Admissions Office
Gerald Torres · 65 Vand. L. Rev. En Banc 211 (2012)

We have also published two new book reviews:

American Legal History Revisited
James W. Ely, Jr. · 65 Vand. L. Rev. En Banc 185 (2012), Reviewing: G. Edward White, Law in American History, Volume 1: From the Colonial Years Through the Civil War (Oxford University Press, 2012).

Justice for All?
Rebecca K. Lee · 65 Vand. L. Rev. En Banc 217 (2012), Reviewing: Judith Resnik & Dennis Curtis, Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms (Yale University Press, 2011).

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Vanderbilt Law Review En Banc Fisher v. University of Texas Roundtable

Vanderbilt Law Review En Banc is pleased to present the first round of our current Roundtable, which looks at Fisher v. University of Texas at Austin. Fisher will be argued in the October 2012 Supreme Court Term and the Court will consider whether the University of Texas’s use of race in its undergraduate admissions process is lawful under the Equal Protection Clause of the Fourteenth Amendment.

Professors Vikram Amar, James Blumstein, Tomiko Brown-Nagin, Girardeau Spann, and Gerald Torres consider the issues and offer their views on how the Court might—or should—approach this case in their “First Take” articles. In approximately eight weeks, these same scholars will offer responses to each other’s essays. We look forward to a spirited debate on these interesting and often contentious issues.

Roundtable: First Takes

Is Honesty the Best (Judicial) Policy in Affirmative Action Cases? Fisher v. University of Texas Gives the Court (Yet) Another Chance to Say Yes
Vikram David Amar · 65 Vand. L. Rev. En Banc 77 (2012)

Grutter and Fisher: A Reassessment and a Preview
James F. Blumstein · 65 Vand. L. Rev. En Banc 57 (2012)

The Diversity Paradox: Judicial Review in an Age of Demographic and Educational Change
Tomiko Brown-Nagin · 65 Vand. L. Rev. En Banc 113 (2012)

Fisher v. Grutter
Girardeau A. Spann · 65 Vand. L. Rev. En Banc 45 (2012)

Fisher v. University of Texas: Living in the Dwindling Shadow of LBJ’s America
Gerald Torres · 65 Vand. L. Rev. En Banc 97 (2012)

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Harvard Law Review Online Forum: Responding to Judge Guido Calabresi, Judge Dennis Davis, Rosalind Dixon, Dieter Grimm, Patrick O. Gudridge, Martha Minow, Margaret Jane Radin, In Tribute: Frank I. Michelman, 125 Harv. L. Rev. 879 (2012)

 

Harvard Law Review

Online Forum

Provocation: Law’s Republics

Vlad Perju :: I begin with three premises: First, the relevance for any polity of the exercises in self-government of other political communities, as encoded in their constitutional laws and cultures, is not self evident and must therefore be justified. Second, that justification must place domestic and foreign law within a unitary framework by reference to which the comparativist’s choices can be defended. Third, no project of comparative constitutional law, and perhaps comparative law generally, can withstand scrutiny unless it articulates, or it signs on to some articulation, of such a framework. By placing comparative constitutional law within the larger constitutional democratic project of government by law, Professor Frank Michelman’s work gives us a framework for how the constitutional mind can approach — or “go visiting,” as Hannah Arendt put it — the experiments in collective self-determination of other free communities of equals.  READ MORE

Provocation: Frank’s Way

Robert Post :: I know that Dean Martha Minow would like me to begin with a provocation, but I can’t help beginning instead with an acknowledgment. Throughout my career as a legal academic, I have always had two guiding lights, two pole stars whose integrity and depth I have trusted to steer me in the right direction. One is Owen Fiss, and the other is Frank Michelman.  READ MORE

Provocation: Everyone is a Philospher!

T.M. Scanlon :: In the first chapter of his book, Reading Obama, Professor James Kloppenberg offers an account of the intellectual climate at Harvard Law School during the years in which President Obama was here as a student, describing both the influential figures at the school and the writers and ideas they were discussing. Unsurprisingly, Professor Frank Michelman appears prominently on the first list.  READ MORE

Provocation: The Comparative Turn: Accident, Coincidence, or Fate?

Katharine G. Young :: Why would a long-standing leader in the field of American constitutional law turn his intellectual attention to another constitutional system? And why choose South Africa? For almost two decades, Frank Michelman’s contribution to the field of comparative constitutional law has been much like his contribution to constitutional theory and constitutional law in general: soaring, generous, always in dialogue with others, and yet always uniquely his own. In this Provocation, I examine: what accounts for the comparative turn?  READ MORE

 

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The Harvard Law Review Online Forum: Responding to Orin S. Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 Harv. L. Rev. 476 (2011) and Christopher Slobogin, An Original Take on Originalism,125 Harv. L. Rev. F. 14 (2011)

Harvard Law Review

Online Forum

Defending Equilibrium-Adjustment

Orin S. Kerr :: I thank Professor Christopher Slobogin for responding to my recent Article, An Equilibrium-Adjustment Theory of the Fourth Amendment. My Article contended that much of today’s Fourth Amendment law can be understood as the product of equilibrium-adjustment. When changing technology and social practice threaten to considerably expand or restrict government power, courts tighten or loosen Fourth Amendment restrictions to restore the status quo level of government power. That is, courts account for changing technology by adjusting rules in an effort to restore the prior equilibrium of government power. Existing Fourth Amendment doctrine therefore reflects many decades of equilibrium-adjustment over time. READ MORE

 

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The Harvard Law Review Online Forum: Responding to Jody Freeman and Jim Rossi, Agency Coordination in Shared Regulatory Space, 125 Harv. L. Rev. 1131 (2012)

Harvard Law Review

Online Forum

The More the Merrier: Multiple Agencies and the Future of Administrative Law Scholarship

Eric Biber :: Multiple agencies are all the rage in administrative law. As Professors Jody Freeman and Jim Rossi note, the traditional focus in administrative law has been on investigating how individual agencies function, and how interactions with the White House, Congress, and the courts shape (for better or for worse) their decisionmaking. In contrast, the newer scholarship looks at how multiple agencies interact. Some of that scholarship focuses on particular areas of law, calling on policymakers to consider using a combination of multiple agencies, rather than one single agency, to solve particular policy problems. Other scholarship is more cross-cutting, trying to identify larger patterns that run across substantive areas, describing how the existence of multiple agencies and their interactions might shape agency decisionmaking and what we might (or might not) want to do about it. Freeman and Rossi’s piece, though it draws on a particular case study, has a broader ambition and makes an important and useful contribution to this second category. READ MORE

 

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Harvard Law Review Online Forum

 

Harvard Law Review

Online Forum

Reaction: Salvaging Perry

Andrew Koppelman :: The Ninth Circuit, in Perry v. Brown, deftly avoided forcing the Supreme Court’s hand on the big claim that the Constitution requires recognition of same-sex marriage — a claim likely to be rejected now, though perhaps not a few years from now. Instead, it held that California’s Proposition 8, which stripped same-sex couples of their right to have their unions called “marriages,” was unconstitutional because it reflected a bare desire to harm a politically unpopular group.  READ MORE

Reaction: Splitting the Difference: Reflections on Perry v. Brown

Jane S. Schacter :: The latest chapter in California’s long running debate over marriage equality began when the voters passed Proposition 8 in 2008. Several months earlier, the California Supreme Court had interpreted the state constitution to protect the right of same-sex couples to marry, and Prop 8 amended the constitution to eliminate that right.  READ MORE

Reaction: A Marriage is a Marriage is a Marriage: The Limits of Perry v. Brown

Robin West :: The Ninth Circuit’s decision in Perry v. Brown, authored by Judge Reinhardt, has been widely lauded in the last few weeks by marriage equality proponents for its creative minimalism. In keeping with commentators’ expectations, the court found a way to determine that California’s Proposition 8 violated the U.S. Constitution’s Equal Protection Clause, namely that the provision took away an entitlement that had previously been enjoyed by same-sex couples — the right to the appellation of one’s partnership as a “marriage” — for no rational reason.  READ MORE

 

 

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Harvard Law Review

Online Forum

Reaction: A Marriage is a Marriage is a Marriage: The Limits of Perry v. Brown

Robin West :: The Ninth Circuit’s decision in Perry v. Brown, authored by Judge Reinhardt, has been widely lauded in the last few weeks by marriage equality proponents for its creative minimalism. In keeping with commentators’ expectations, the court found a way to determine that California’s Proposition 8 violated the U.S. Constitution’s Equal Protection Clause, namely that the provision took away an entitlement that had previously been enjoyed by same-sex couples — the right to the appellation of one’s partnership as a “marriage” — for no rational reason. The People of California’s categorization and differential treatment of same-sex couples as compared with opposite-sex couples, the court held, failed the test of minimal rationality required for upholding state action. The two types of couples were simply too indistinguishable to carry the weight of the difference between them that the People of California had tried to codify. Thus, the court struck down the state constitutional amendment.  READ MORE

 

 

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The Harvard Law Review Online Forum: Responding to Rebecca Tushnet, Worth a Thousand Words: The Images of Copyright, 125 Harv. L. Rev. 683 (2012)

Harvard Law Review

Online Forum

More Than a Thousand Words in Response to Rebecca Tushnet

Christina Spiesel :: In this response to Professor Rebecca Tushnet, Professor Christina Spiesel argues that the contrast Tushnet uses to differentiate pictures and words poses problems in view of the challenges posed by the Internet. Online, all expression is representation made of the same material and everything is first a picture or a sound behind a picture, so the different status of words and pictures requires further sorting. Professor Spiesel complicates the conversation Professor Tushnet began by showing that copyright law is now at the center of very large debates about the Internet and our public lives.  READ MORE

 

 

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The Harvard Law Review Online Forum: Responding to Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379 (2011)

Harvard Law Review

Online Forum

Hollow Hopes and Exaggerated Fears: The Canon/Anticanon in Context

Mark A. Graber :: The conventional constitutional canon and constitutional anticanon promote courts as powerful institutions. But neither the canonical nor the anticanonical constitutional decisions by the Supreme Court have produced the wonderful results or horrible evils sometimes attributed to them. In many cases, elected officials made cotemporaneous constitutional decisions that had as much influence as the celebrated or condemned judicial rulings. More often than not, judicial rulings matter by changing the political dynamics than by directly changing public policy. READ MORE