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Harvard Law Review, 125:3 (2012)
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Volume 125 · January 2012 · Number 3
ARTICLE
Worth a Thousand Words: The Images of Copyright
Rebecca Tushnet
BOOK REVIEW
Capital Punishment and Contingency
Carol S. Steiker
NOTE
Spare the Mod: In Support of Total-Conversion Modified Video Games
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January 23, 2012 at 1:57 pm
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The Harvard Law Review Online Forum: Responding to Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379 (2011)
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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
January 11, 2012 at 11:03 am
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Responding to Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379 (2011).
Is Dred Scott Really the Worst Opinion of All Time? Why Prigg Is Worse Than Dred Scott (But Is Likely to Stay Out of the “Anticanon”)
Sanford Levinson :: In The Anticanon, Professor Jamal Greene examines how a particular set of cases came to constitute the “anticanon” of constitutional law, that is, cases whose names can be spoken only to be condemned. In this response, Professor Sanford Levinson questions whether the vitriol visited upon anticanonical cases, whether by lawyers or the laity, is necessarily defensible. Levinson suggests that anticanonical cases may be indistinguishable from cases accorded far greater respect (and, indeed, treated as “canonical” exemplars of legal craft). Some anticanonical cases may have genuine merit and lessons worth drawing on. More particularly, Levinson asks why Prigg v. Pennsylvania, written by Justice Joseph Story, suffered neither the public obloquy nor the condemnation by professional legal academics directed at Chief Justice Taney for his opinion in Dred Scott, even though Greene notes that Prigg may be the worst Supreme Court decision of all time and Dred Scott, according to Levinson, contains potentially inspirational passages. We want to believe that the canon and anticanon are separated by an impermeable wall. But what if they are not? READ MORE
Responding to Orin S. Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 Harv. L. Rev. 476 (2011).
An Original Take on Originalism
Christopher Slobogin :: In An Equilibrium-Adjustment Theory of the Fourth Amendment, Professor Orin Kerr argues that Fourth Amendment law ought to be structured to ensure that the balance of power between government and citizenry remains constant. In this response, Professor Christopher Slobogin acknowledges that this equilibrium-adjustment theory is elegant and, because it rests on a relatively “neutral” historical foundation, might be attractive to judges and scholars from different perspectives. However, contrary to Kerr’s assertion, Slobogin argues that equilibrium adjustment does not easily explain many of the Court’s cases, nor does it help address the most difficult Fourth Amendment issues facing the Court today. The historical foundations on which it rests are often shaky or insufficiently cognizant of modern preferences. At bottom, equilibrium-adjustment theory is originalism, and thus suffers from all of the problems associated with that methodology. READ MORE
January 4, 2012 at 3:55 pm
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Harvard Law Review, 125:2 (2011)
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Volume 125 · December 2011 · Number 2
ARTICLES
The Anticanon
Jamal Greene
An Equilibrium-Adjustment Theory of the Fourth Amendment
Orin S. Kerr
BOOK REVIEW
The Founding Revisited
Michael J. Klarman
NOTES
Deweyan Democracy and the Administrative State
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December 20, 2011 at 1:47 pm
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The Harvard Law Review Online Forum: Responding to Dan M. Kahan, Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law, 125 Harv. L. Rev. 1 (2011)
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Democracy’s Distrust: Contested Values and the Decline of Expertise
Suzanna Sherry :: In this response to Professor Dan Kahan’s Foreword, Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law, Professor Suzanna Sherry argues that while Kahan accurately describes the contemporary “neutrality crisis” and the consequent popular mistrust of the Supreme Court, he has mistaken its cause and thus proposes the wrong solution. READ MORE
“I Couldn’t See It Until I Believed It”: Some Notes on Motivated Reasoning in Constitutional Adjudication
Mark Tushnet :: In this response to Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law, Professor Mark Tushnet raises two potential problems with Professor Dan Kahan’s argument that the Supreme Court can restore public faith in its neutrality by avoiding “motivated reasoning” and instead writing opinions that affirm the values of citizens with strikingly different cultural orientations. READ MORE
November 28, 2011 at 3:59 pm
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Harvard Law Review, 125:1 (2011)
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Volume 125 · November 2011 · Number 1
The Supreme Court 2010 Term
FOREWORD
Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law
Dan M. Kahan
COMMENT
Fairness in Numbers: A Comment on AT&T v. Concepcion, Wal-Mart v. Dukes, and Turner v. Rogers
Judith Resnik
LEADING CASES
FIRST AMENDMENT
Establishment Clause — Taxpayer Standing: Arizona Christian School Tuition Organization v.Winn
Freedom of Speech — Categorical Exclusions: Brown v. Entertainment Merchants Ass’n
Freedom of Speech — Mixed Public-Private Speech: Snyder v. Phelps
FOURTH AMENDMENT
Exigent Circumstances Exception: Kentucky v. King
Material Witness Statute: Ashcroft v. al-Kidd
Right to Informational Privacy: NASA v. Nelson
FIFTH AMENDMENT
Self-Incrimination Clause: J.D.B. v. North Carolina
SIXTH AMENDMENT
Confrontation Clause: Bullcoming v. New Mexico
EIGHTH AMENDMENT
Prison Population Reduction Order: Brown v. Plata
SEPARATION OF POWERS
Displacement of Federal Common Law: American Electric Power Co. v. Connecticut
FEDERAL PREEMPTION OF STATE LAW
Agency Deference: Williamson v. Mazda Motor of America, Inc.
Immigration Law: Chamber of Commerce v. Whiting
Tort Law: Bruesewitz v. Wyeth LLC
PERSONAL JURISDICTION
Stream-of-Commerce Doctrine: J. McIntyre Machinery, Ltd. v. Nicastro
42 U.S.C. § 1983
Postconviction Access to DNA Evidence: Skinner v. Switzer
Scope of Municipal Liability: Connick v. Thompson
FREEDOM OF INFORMATION ACT
Personnel Exemption: Milner v. Department of the Navy
PATENT ACT OF 1952
Standard of Proof: Microsoft Corp. v. i4i Ltd. Partnership
STATISTICS
The Statistics
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November 15, 2011 at 3:26 pm
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Harvard Law Review, 124:8 (2011)
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Volume 124 · June 2011 · Number 8
IN MEMORIAM
In Memoriam: William J. Stuntz
Pamela S. Karlan, Michael J. Klarman, Martha Minow, Daniel C. Richman, Robert E. Scott, David Skeel, Carol Steiker
ARTICLES
The Host’s Dilemma: Strategic Forfeiture in Platform Markets for Informational Goods
Jonathan M. Barnett
Separation of Powers as Ordinary Interpretation
John F. Manning
Advisory Opinions and the Influence of the Supreme Court over American Policymaking
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June 20, 2011 at 11:28 am
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Harvard Law Review, 124:7 (2011)
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Volume 124 · May 2011 · Number 7
ARTICLE
Article III and the Scottish Judiciary
James E. Pfander and Daniel D. Birk
BOOK REVIEW
Constitutional Alarmism
Trevor W. Morrison
NOTES
A Justification for Allowing Fragmentation in Copyright
Taxing Partnership Profits Interests: The Carried Interest Problem
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May 15, 2011 at 4:27 pm
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Harvard Law Review, 124:6 (2011)
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Volume 124 · April 2011 · Number 6
IN MEMORIAM
In Memoriam: Benjamin Kaplan
ARTICLES
Orphan Business Models: Toward a New Form of Intellectual Property
Michael Abramowicz
Information Acquisition and Institutional Design
Matthew C. Stephenson
NOTES
Permitting Private Initiation of Criminal Contempt Proceedings
Restoring Electoral Equilibrium in the Wake of Constitutionalized Campaign Finance
Rethinking the Boundaries of the Sixth Amendment Right to Choice of Counsel
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April 21, 2011 at 4:03 pm
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Harvard Law Review, 124:5 (2011)
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Volume 124 · March 2011 · Number 5
ARTICLES
Lightened Scrutiny
Bert I. Huang
Despite Preemption: Making Labor Law in Cities and States
Benjamin I. Sachs
DEVELOPMENTS IN THE LAW
Developments in the Law — Extraterritoriality
NOTE
From Consensus to Collegiality: The Origins of the “Respectful” Dissent
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March 21, 2011 at 4:06 pm
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Harvard Law Review, 124:4 (2011)
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Volume 124 · February 2011 · Number 4
ARTICLE
The Structural Safeguards of Federal Jurisdiction
Tara Leigh Grove
BOOK REVIEW
The New Habeas Revisionism
Stephen I. Vladeck
NOTES
OIRA Avoidance
The State’s Vicarious Liability for the Actions of the City
RECENT INTERNATIONAL ADVISORY OPINION
— Accordance with International Law of Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion (July 22, 2010), http://www.icj-cij.org/docket/files/141/15987.pdf.
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February 18, 2011 at 4:18 pm
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Harvard Law Review, 124:3 (2011)
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Volume 124 · January 2011 · Number 3
ARTICLES
Parchment and Politics: The Positive Puzzle of Constitutional Commitment
Daryl J. Levinson
The New Equal Protection
Kenji Yoshino
NOTE
Three’s a Crowd — Defending the Binary Approach to Government Speech
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January 20, 2011 at 3:23 pm
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Harvard Law Review, 124:2 (2010)
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Volume 124 · December 2010 · Number 2
ADDRESS
Harvard University’s 359th Commencement Address
Justice David H. Souter
ARTICLE
Why (Ever) Define Markets?
Louis Kaplow
ESSAY
The Distortionary Effect of Evidence on Primary Behavior
Gideon Parchomovsky and Alex Stein
NOTES
Too Sovereign to Be Sued: Immunity of Central Banks in Times of Financial Crisis
Educational Benefits Realized: Universities’ Post-Admissions Policies and the Diversity Rationale
Chevron and the Substantive Canons: A Categorical Distinction
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December 20, 2010 at 3:04 pm
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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.
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
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November 20, 2010 at 11:23 am
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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
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
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June 20, 2010 at 2:00 pm
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Harvard Law Review, 123:7 (2010)
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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 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).
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May 20, 2010 at 1:58 pm
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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 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).
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April 20, 2010 at 1:48 pm
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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
Designing a Prisoner Reentry System Hardwired To Manage Disputes
March 19, 2010 at 10:09 am
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Harvard Law Review, 123:4 (2010)
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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
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March 2, 2010 at 10:38 am
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Harvard Law Review, 123:3 (2010)
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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
January 22, 2010 at 3:05 pm
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