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Category: Law Rev (Harvard)

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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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Harvard Law Review, 125: 4 (2012)

 

Harvard Law Review

Volume 125 · February 2012 · Number 4

TRIBUTE
In Tribute: Frank I. Michelman
Judge Guido Calabresi, Judge Dennis Davis, Rosalind Dixon, Dieter Grimm, Patrick O. Gudridge, Martha Minow, Margaret Jane Radin

ARTICLE
The Forgotten Core Meaning of the Suspension Clause
Amanda L. Tyler

BOOK REVIEW
Law and Local Knowledge in the History of the Civil Rights Movement
Kenneth W. Mack

NOTE
International Delegation as Ordinary Delegation

RECENT CASES
Third Circuit Applies Tinker to Off-Campus Student Speech. — J.S. ex rel. Snyder v. Blue Mountain School District, 650 F.3d 915 (3d Cir. 2011) (en banc).

Second Circuit Affirms Conviction Despite Closure to the Public of a Voir Dire. — United States v. Gupta, 650 F.3d 863 (2d Cir. 2011).

D.C. Circuit Holds that U.S. Officials Are Immune from Alien Tort Statute Claims. — Ali v. Rumsfeld, 649 F.3d 762 (D.C. Cir. 2011).

D.C. Circuit Finds SEC Proxy Access Rule Arbitrary and Capricious for Inadequate Economic Analysis. — Business Roundtable v. SEC, 647 F.3d 1144 (D.C. Cir. 2011).

Second Circuit Holds that Student’s Removal from Class Is Not First Amendment Retaliation Where Motivation Is Protective. — Cox v. Warwick Valley Central School District, 654 F.3d 267 (2d Cir. 2011).

Seventh Circuit Upholds Rejection of Diminished Capacity as Mitigating Factor. — United States v. Garthus, 652 F.3d 715 (7th Cir. 2011).

First Circuit Holds that Rehabilitation Cannot Justify Post-Revocation Imprisonment. — United States v. Molignaro, 649 F.3d 1 (1st Cir. 2011).

RECENT BOOK
Review of David E. Bernstein, Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform

RECENT PUBLICATIONS
Recent Publications

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Harvard Law Review, 125: 3 (2012)

 

Harvard Law Review

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

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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

 

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Harvard Law Review

Online Forum

 

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

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Harvard Law Review, 125: 2 (2011)

Harvard Law Review

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

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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)

 

Harvard Law Review

Online Forum

 

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

 

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Harvard Law Review, 125: 1 (2011)

Harvard Law Review

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

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Harvard Law Review, 124: 8 (2011)

Harvard Law Review

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