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

RECENT CASES Second Circuit Holds that Qualified Immunity Shields School Officials Who Discipline Students for Their Online Speech. — Doninger v. Niehoff, 642 F.3d 334 (2d Cir. 2011), cert. denied, No. 11-113, 2011 WL 3204853 (U.S. Oct. 31, 2011).

District of Oregon Invalidates Biological Opinion for Federally Operated Dams on Columbia River. — National Wildlife Federation v. National Marine Fisheries Service, No. CV 01- 00640-RE, 2011 WL 3322793 (D. Or. Aug. 2, 2011).

Massachusetts Supreme Judicial Court Unanimously Voids Foreclosure Sales Because Securitization Trusts Could Not Demonstrate Clear Chains of Title to Mortgages. — U.S. Bank [...]]]>

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

RECENT CASES
Second Circuit Holds that Qualified Immunity Shields School Officials Who Discipline Students for Their Online Speech. — Doninger v. Niehoff, 642 F.3d 334 (2d Cir. 2011), cert. denied, No. 11-113, 2011 WL 3204853 (U.S. Oct. 31, 2011).

District of Oregon Invalidates Biological Opinion for Federally Operated Dams on Columbia River. — National Wildlife Federation v. National Marine Fisheries Service, No. CV 01- 00640-RE, 2011 WL 3322793 (D. Or. Aug. 2, 2011).

Massachusetts Supreme Judicial Court Unanimously Voids Foreclosure Sales Because Securitization Trusts Could Not Demonstrate Clear Chains of Title to Mortgages. — U.S. Bank National Ass’n v. Ibanez, 941 N.E.2d 40 (Mass. 2011).

Fifth Circuit Holds that Undocumented Immigrants Do Not Have Second Amendment Rights. — United States v. Portillo- Munoz, 643 F.3d 437 (5th Cir. 2011).

Fourth Circuit Upholds Federal Firearms Regulation. — United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011), cert. denied, No. 10-11212, 2011 WL 2516854 (U.S. Nov. 28, 2011).

Federal Circuit Holds that Mental Processes that Do Not, as a Practical Matter, Require a Computer to Be Performed Are Unpatentable. — CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366 (Fed. Cir. 2011).

RECENT LEGISLATION
Food Safety Modernization Act Implements Private Regulatory Scheme. — FDA Food Safety Modernization Act, Pub. L. No. 111-353, 124 Stat. 3885 (2011) (codified in scattered sections of the U.S. Code).

Congress Delegates Power to Raise the Debt Ceiling. — Budget Control Act of 2011, Pub. L. No. 112-25, 125 Stat. 240 (to be codified in scattered sections of the U.S. Code).

RECENT PUBLICATIONS
Recent Publications

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   

Responding to Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379 (2011).

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 [...]]]>

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

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

(In)efficient Breach of International Trade Law: The State of the “Free Pass” After China’s Rare Earths Export Embargo

RECENT CASES D.C. Circuit Vacates District Court’s Preliminary Injunction of Federal Funding for Research Using Human Embryonic Stem Cells. — Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011).

Ninth Circuit Holds that Exercise of Personal Jurisdiction over Company Whose Website Cultivates Significant Forum State User Base Comports with Due Process. — Mavrix Photo, Inc. v. Brand Technologies, Inc., 647 F.3d 1218 (9th Cir. 2011).

D.C. Court of Appeals Allows Recovery for Emotional Harm Outside Zone of Danger. — Hedgepeth v. Whitman [...]]]>

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

(In)efficient Breach of International Trade Law: The State of the “Free Pass” After China’s Rare Earths Export Embargo

RECENT CASES
D.C. Circuit Vacates District Court’s Preliminary Injunction of Federal Funding for Research Using Human Embryonic Stem Cells. — Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011).

Ninth Circuit Holds that Exercise of Personal Jurisdiction over Company Whose Website Cultivates Significant Forum State User Base Comports with Due Process. — Mavrix Photo, Inc. v. Brand Technologies, Inc., 647 F.3d 1218 (9th Cir. 2011).

D.C. Court of Appeals Allows Recovery for Emotional Harm Outside Zone of Danger. — Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789 (D.C. 2011) (en banc).

Seventh Circuit Invalidates Wisconsin Inmate Sex Change Prevention Act. — Fields v. Smith, 653 F.3d 550 (7th Cir. 2011).

Federal Circuit Invalidates Diagnostic Method Claims as Drawn to “Abstract Mental Processes.” — Association for Molecular Pathology v. U.S. Patent & Trademark Office, 653 F.3d 1329 (Fed. Cir. 2011).

Seventh Circuit Holds Ban on Firing Ranges Unconstitutional. — Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011).

D.C. Circuit Holds Corporations Not Immune from ATS Claims. — Doe VIII v. Exxon Mobil Corp., Nos. 09-7125, 09-7127, 09-7134, 09-7135, 2011 WL 2652384 (D.C. Cir. July 8, 2011).

RECENT PUBLICATIONS
Recent Publications

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

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 [...]]]>  

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
 
 

  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

Freedom of Speech — Campaign Finance Regulation: Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett

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 [...]]]>

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

Freedom of Speech — Campaign Finance Regulation: Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett

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

RECENT PUBLICATIONS
Recent Publications

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

NOTES Interpreting Silence: The Roles of the Courts and the Executive Branch in Head of State Immunity Cases

Advisory Opinions and the Influence of the Supreme Court over American Policymaking

RECENT CASES Third Circuit Holds that Police Officer’s Good Faith Reliance on Legal Advice Creates a Presumption of Reasonableness. — Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010).

Second Circuit Holds that Imposing Below-Guidelines Sentence Using Retroactive Guidelines Range Increase Does Not Violate Ex Post Facto [...]]]>  

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

NOTES
Interpreting Silence: The Roles of the Courts and the Executive Branch in Head of State Immunity Cases

Advisory Opinions and the Influence of the Supreme Court over American Policymaking

RECENT CASES
Third Circuit Holds that Police Officer’s Good Faith Reliance on Legal Advice Creates a Presumption of Reasonableness. — Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010).

Second Circuit Holds that Imposing Below-Guidelines Sentence Using Retroactive Guidelines Range Increase Does Not Violate Ex Post Facto Clause. — United States v. Ortiz, 621 F.3d 82 (2d Cir. 2010).

Ninth Circuit Holds that Grand Jury Can Subpoena Protected Foreign Documents. — In re Grand Jury Subpoenas (White & Case LLP), 627 F.3d 1143 (9th Cir. 2010).

Sixth Circuit Holds that Primary and Secondary School Teachers’ Curricular Decisions Are Not Entitled to Free Speech Protection. —Evans-Marshall v. Board of Education, 624 F.3d 332 (6th Cir. 2010).

Sixth Circuit Holds that Federal Judges May Not Consider § 3553(a) Factors in Rule 35(b) Hearings. — United States v. Grant, No. 07-3831, 2011 WL 71475 (6th Cir. Jan. 11, 2011)(en banc).

RECENT LEGISLATION
Dodd-Frank Act Creates the Consumer Financial Protection Bureau. — Dodd-Frank Act, Pub. L. No. 111-203, 124 Stat. 1376 (2010) (to be codified in scattered sections of the U.S. Code).

RECENT PUBLICATIONS
Recent Publications

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

RECENT CASES New York Court of Appeals Clarifies Standard for Imputability of an Agent’s Fraudulent Conduct to Its Principal in the Context of an In Pari Delicto Defense. — Kirschner v. KPMG LLP, 938 N.E.2d 941 (N.Y. 2010).

D.C. Circuit Holds that EPA Rule Modifying Cap-and-Trade Regulatory System for Hydrochlorofluorocarbons Is Impermissibly Retroactive. — Arkema Inc. v. EPA, 618 F.3d 1 (D.C. Cir. 2010).

Fourth Circuit Holds that State Public Nuisance Suit Against Electricity-Generating Plant Emissions Is Preempted by the Clean Air Act [...]]]>

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

RECENT CASES
New York Court of Appeals Clarifies Standard for Imputability of an Agent’s Fraudulent Conduct to Its Principal in the Context of an In Pari Delicto Defense. — Kirschner v. KPMG LLP, 938 N.E.2d 941 (N.Y. 2010).

D.C. Circuit Holds that EPA Rule Modifying Cap-and-Trade Regulatory System for Hydrochlorofluorocarbons Is Impermissibly Retroactive. — Arkema Inc. v. EPA, 618 F.3d 1 (D.C. Cir. 2010).

Fourth Circuit Holds that State Public Nuisance Suit Against Electricity-Generating Plant Emissions Is Preempted by the Clean Air Act Regime. — North Carolina ex rel. Cooper v. TVA, 615 F.3d 291 (4th Cir. 2010).

Ninth Circuit Holds that Dispute over Private Card Check Agreement Is Subject to Primary Jurisdiction of NLRB. — International Union of Painter & Allied Trades, District 15, Local 159 v. J & R Flooring, Inc., 616 F.3d 953 (9th Cir. 2010).

RECENT LEGISLATION
Congress Expands Incentives for Whistleblowers to Report Suspected Violations to the SEC. — Dodd-Frank Act, Pub. L. No. 111-203, § 922, 124 Stat. 1376, 1841–49 (2010) (to be codified at 15 U.S.C. § 78u-6).

RECENT PUBLICATIONS
Recent Publications

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

A Chevron for the House and Senate: Deferring to Post-Enactment Congressional Resolutions that Interpret Ambiguous Statutes

Restoring Electoral Equilibrium in the Wake of Constitutionalized Campaign Finance

Rethinking the Boundaries of the Sixth Amendment Right to Choice of Counsel

RECENT CASES D.C. Circuit Upholds EPA Superfund Authority to Issue Cleanup Orders Reviewable Only Under Threat of Penalty. — General Electric Co. v. Jackson, 610 F.3d 110 (D.C. Cir. 2010).

Third Circuit Allows Government to Acquire Cell Phone Data Without Probable Cause. — In re The Application of the United States for an Order [...]]]>

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

A Chevron for the House and Senate: Deferring to Post-Enactment Congressional Resolutions that Interpret Ambiguous Statutes

Restoring Electoral Equilibrium in the Wake of Constitutionalized Campaign Finance

Rethinking the Boundaries of the Sixth Amendment Right to Choice of Counsel

RECENT CASES
D.C. Circuit Upholds EPA Superfund Authority to Issue Cleanup Orders Reviewable Only Under Threat of Penalty. — General Electric Co. v. Jackson, 610 F.3d 110 (D.C. Cir. 2010).

Third Circuit Allows Government to Acquire Cell Phone Data Without Probable Cause. — In re The Application of the United States for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government, 620 F.3d 304 (3d Cir. 2010).

Ninth Circuit Holds that Excluding Men from Supervisory Positions in Women’s Prison Violates Title VII. — Breiner v. Nevada Department of Corrections, 610 F.3d 1202 (9th Cir. 2010).

Nevada Supreme Court Reverses Conviction on the Basis of Spillover Prejudice. — Stewart v. State, No. 53100, 2010 WL 4226456 (Nev. Oct. 22, 2010).

RECENT REGULATION
Librarian of Congress Exempts University Professors and Film Students from DMCA Anticircumvention Provisions. — Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 75 Fed. Reg. 43,825 (July 27, 2010) (to be codified at 37 C.F.R. pt. 201).

RECENT PUBLICATIONS
Recent Publications

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

RECENT CASES Second Circuit Leaves Classification of Magistrate Judges’ Rule 11 Sanctions Unresolved — Kiobel v. Millson, 592 F.3d 78 (2d Cir. 2010).

Fifth Circuit Reaffirms that a Defendant’s Knowledge of Likely Harm to a Plaintiff in the Forum State Is Insufficient to Create Jurisdiction Under Calder v. Jones. — Clemens v. McNamee, 615 F.3d 374 (5th Cir. 2010).

RECENT PUBLICATIONS Recent Publications

ARTICLE The Structural Safeguards of Federal Jurisdiction Tara Leigh Grove

BOOK REVIEW The New Habeas Revisionism Stephen I. Vladeck

NOTES OIRA Avoidance

How Chevron Step One Limits Permissible Agency Interpretations: Brand X and the FCC’s Broadband Reclassification

The State’s Vicarious Liability for the Actions of the City

RECENT CASES Ninth Circuit Holds that Statutory Ban on Arbitration Is Nonwaivable. — Greenwood v. CompuCredit Corp., 615 F.3d 1204 (9th Cir. 2010).

Federal Tax Court Holds Pre-Chevron Judicial Construction of Statute Precludes Subsequent Agency Interpretation if Prior Construction Was Premised on Legislative History. — Intermountain Insurance Service of Vail, LLC v. Commissioner, No. 25868-06, 2010 WL 1838297 (T.C. May 6, 2010).

En Banc Seventh Circuit Holds Prohibition on Firearm Possession by Domestic Violence Misdemeanants to [...]]]>  

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

How Chevron Step One Limits Permissible Agency Interpretations: Brand X and the FCC’s Broadband Reclassification

The State’s Vicarious Liability for the Actions of the City

RECENT CASES
Ninth Circuit Holds that Statutory Ban on Arbitration Is Nonwaivable. — Greenwood v. CompuCredit Corp., 615 F.3d 1204 (9th Cir. 2010).

Federal Tax Court Holds Pre-Chevron Judicial Construction of Statute Precludes Subsequent Agency Interpretation if Prior Construction Was Premised on Legislative History. — Intermountain Insurance Service of Vail, LLC v. Commissioner, No. 25868-06, 2010 WL 1838297 (T.C. May 6, 2010).

En Banc Seventh Circuit Holds Prohibition on Firearm Possession by Domestic Violence Misdemeanants to Be Constitutional. — United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (en banc).

Second Circuit Holds Within-Guidelines Child Pornography Sentence Procedurally and Substantively Unreasonable. — United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010).

Seventh Circuit Upholds Endorsement and Personal Solicitation Clauses of Wisconsin Code of Judicial Conduct. — Siefert v. Alexander, 608 F.3d 974 (7th Cir. 2010).

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.

RECENT PUBLICATIONS
Recent Publications

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

RECENT CASES D.C. Circuit Deems Warrantless Use of GPS Device an Unreasonable Search. — United States v. Maynard, 615 F.3d 544 (D.C. Cir.), reh’g en banc denied, No. 08-3034, 2010 WL 4703743 (D.C. Cir. Nov. 19, 2010), cert. denied, No. 10-7102, 2010 WL 4156203 (U.S. Nov. 29, 2010).

Second Circuit Strikes Down the FCC’s Indecency Policy as Void for Vagueness. — Fox Television Stations, Inc. v. FCC, 613 F.3d 317 (2d Cir. 2010).

Fourth Circuit Holds that a Regulation Largely Prohibiting Alcohol Advertisements in College Newspapers Is Constitutional. — Educational Media [...]]]>  

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

RECENT CASES
D.C. Circuit Deems Warrantless Use of GPS Device an Unreasonable Search. — United States v. Maynard, 615 F.3d 544 (D.C. Cir.), reh’g en banc denied, No. 08-3034, 2010 WL 4703743 (D.C. Cir. Nov. 19, 2010), cert. denied, No. 10-7102, 2010 WL 4156203 (U.S. Nov. 29, 2010).

Second Circuit Strikes Down the FCC’s Indecency Policy as Void for Vagueness. — Fox Television Stations, Inc. v. FCC, 613 F.3d 317 (2d Cir. 2010).

Fourth Circuit Holds that a Regulation Largely Prohibiting Alcohol Advertisements in College Newspapers Is Constitutional. — Educational Media Co. at Virginia Tech v. Swecker, 602 F.3d 583 (4th Cir. 2010).

Second Circuit Holds that an Album of Music Is a Compilation. — Bryant v. Media Right Productions, Inc., 603 F.3d 135 (2d Cir.), cert. denied, No. 10-415, 2010 WL 3740393 (U.S. Nov. 29, 2010).

Second Circuit Holds that Law Barring ACORN from Receiving Federal Funding Is Not a Bill of Attainder. — ACORN v. United States, 618 F.3d 125 (2d Cir. 2010).

RECENT PUBLICATIONS
Recent Publications

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

RECENT CASES Fourth Circuit Holds that Republishing Social Security Numbers Gleaned from Online Public Records Is Protected Speech. — Ostergren v. Cuccinelli, 615 F.3d 263 (4th Cir. 2010).

Fifth Circuit Leaves Panel Decision Vacated upon Loss of En Banc Quorum. — Comer v. Murphy Oil USA, 607 F.3d 1049 (5th Cir. 2010) (en banc).

Federal Circuit Heightens Standard for Plaintiff Presence that [...]]]>  

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

RECENT CASES
Fourth Circuit Holds that Republishing Social Security Numbers Gleaned from Online Public Records Is Protected Speech. — Ostergren v. Cuccinelli, 615 F.3d 263 (4th Cir. 2010).

Fifth Circuit Leaves Panel Decision Vacated upon Loss of En Banc Quorum. — Comer v. Murphy Oil USA, 607 F.3d 1049 (5th Cir. 2010) (en banc).

Federal Circuit Heightens Standard for Plaintiff Presence that Will Weigh Against Transfer. — In re Zimmer Holdings, Inc., 609 F.3d 1378 (Fed. Cir. 2010).

D.C. Circuit Holds that Government Officials’ Potentially Defamatory Allegations Regarding Plaintiffs’ Terrorist Ties Are Protected by Political Question Doctrine. — El-Shifa Pharmaceutical Industries Co. v. United States, 607 F.3d 836 (D.C. Cir. 2010) (en banc).

European Court of Justice Holds that Search Engines Do Not Infringe Trademarks. — Joined Cases C-236/08, C-237/08 & C-238/08, Google France SARL v. Louis Vuitton Malletier SA, 2010 ECJ EUR-Lex LEXIS 119 (Mar. 23, 2010).

RECENT PUBLICATIONS
Recent Publications

Volume 124 · November 2010 · Number 1

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 [...]]]>  

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

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 [...]]]>  

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

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 [...]]]>  

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

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. — [...]]]>  

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

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 [...]]]>  

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).

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. [...]]]>  

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

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 — [...]]]>  

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).