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).

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, [...]]]>

 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

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 [...]]]>

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

I’m pleased to announce a new feature at Concurring Opinions – the Law Review Table of Contents Project. We have invited a number of the top law reviews to post the table of contents to their new issues and to provide links to the articles if they are posted on the law review’s website.

The goal of the Table of Contents Project is to provide you with a useful research tool. Finding out about the latest law review publications can be difficult. If you’re like me, you rarely read the physical issues of law reviews anymore; and you don’t have time to constantly keep checking each law review’s website to see if a new issue has been published. Now you don’t have [...]]]>

I’m pleased to announce a new feature at Concurring Opinions – the Law Review Table of Contents Project. We have invited a number of the top law reviews to post the table of contents to their new issues and to provide links to the articles if they are posted on the law review’s website.

The goal of the Table of Contents Project is to provide you with a useful research tool. Finding out about the latest law review publications can be difficult. If you’re like me, you rarely read the physical issues of law reviews anymore; and you don’t have time to constantly keep checking each law review’s website to see if a new issue has been published. Now you don’t have to. Just keep reading Concurring Opinions, and information about the latest law review scholarship will be brought to you – all in one place!

Each journal’s tables of contents will be archived in two categories: (1) a category called Law Rev Contents – collecting all the law review table of contents postings; and (2) a category for each specific law review.

Participating law reviews thus far include:

* Boston College

* Chicago

* Columbia

* Cornell

* Duke

* Emory

* Fordham

* Georgetown

* GW

* Harvard

* Indiana

* Michigan

* Minnesota

* NYU

* Northwestern

* Notre Dame

* Southern California

* Stanford

* Texas

* UCLA

* Vanderbilt

* Virginia

* Washington University

* Yale

We still have a bunch of open invitations, so we anticipate that the number of participants will grow. Unfortunately, we cannot include all law reviews, as this will overwhelm the regular content of our blog.

We hope that you find this new feature to be helpful. We’re very excited about it here, as we believe that this will be of great use to keep you informed about new legal scholarship.

I am very pleased to announce a new project here at Concurring Opinions – the Law Review Forum Project. We will be hosting online forums for several law reviews. Increasingly, law reviews are creating online forums as companions to their regular law review issues. These forums contain very short response pieces, essays, debates, and other works that attempt to bridge the gap between regular legal scholarship and the blogosphere.

Journals seeking to create their own online forum face two daunting challenges. First, they must create and actively maintain a web presence. Second, they must find ways to attract readers, which is difficult in an age where so many blogs and other websites exist. A wide readership for a website depends [...]]]>

I am very pleased to announce a new project here at Concurring Opinions – the Law Review Forum Project. We will be hosting online forums for several law reviews. Increasingly, law reviews are creating online forums as companions to their regular law review issues. These forums contain very short response pieces, essays, debates, and other works that attempt to bridge the gap between regular legal scholarship and the blogosphere.

Journals seeking to create their own online forum face two daunting challenges. First, they must create and actively maintain a web presence. Second, they must find ways to attract readers, which is difficult in an age where so many blogs and other websites exist. A wide readership for a website depends upon having daily content. Law review forums produce content sporadically throughout the year at intervals that are not regular enough to attract a significant readership.

Therefore, we have invited a number of law reviews to participate in a partnership with our blog. Throughout the year, each law review will periodically post forum essays here at Concurring Opinions. We are not requiring an exclusive license, so participating law reviews can also cross-post at their own websites.

We see this as a mutually-beneficial arrangement. We can bring great content to our blog, and law reviews can reach our significant audience without the pressures of having to build and maintain an online readership or of having to produce content with regularity.

Law reviews currently with and without existing forums will be participating. Thus far, the following law reviews have agreed to participate:

* Harvard Law Review

* Virginia Law Review

* Michigan Law Review

* University of Pennsylvania Law Review

* Northwestern Law Review

* UCLA Law Review

* George Washington Law Review

In the near future, we hope to be expanding the list of participating law reviews.