Category: Law Rev (Yale)

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Responses and Reactions to “Minorities, Shareholder and Otherwise” by Anupam Chander: Comparing Corporate and Constitutional Minority Protections

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In a 2003 essay in The Yale Law Journal entitled Minorities, Shareholder and Otherwise, Anupam Chander compared corporate law’s special protections for minority shareholders with the increasingly colorblind position of constitutional law, arguing that the former has much to teach the later. In this edition of The Yale Law Journal Pocket Part we revisit this controversial essay with reactions from three constitutional and corporate law scholars and, finally, a response from Anupam Chander addressing these perspectives on his work.

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Still in Search of a Unifying Principle: What Kennedy v. Louisiana and the Supreme Court’s Denial of the State’s Petition for Rehearing Signal for the Future

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In Kennedy v. Louisiana, the Supreme Court struck down a Louisiana law that authorized the death penalty for the crime of child rape. The Court held, first, that “there is a social consensus against capital punishment for the crime of child rape;” and, second, that in the Court’s own “independent judgment” the penalty is disproportionate. Kennedy came under intense public scrutiny because a purported omission in the majority opinion was said to undermine the decision on its own terms. The State of Louisiana claimed that a recent change in military law invalidated the Court’s finding of a national consensus. It attempted to capitalize upon fresh media coverage and widespread confusion about the facts by filing a petition for rehearing with the Supreme Court. On October 1, 2008, the Court denied the request for a rehearing. A piece by Bidish Sarma is the current issue of The Yale Law Journal Pocket Part briefly explores: (I) the basis of the Court’s decision to reject the request for rehearing; and (II) the Kennedy decision’s implications for the Eighth Amendment’s future.

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The Yale Law Journal Pocket Part: Call for Papers

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The Yale Law Journal Pocket Part is seeking commentaries and essays on the ethical issues presented by the duty of confidentiality in the attorney-client relationship. In particular, we seek submissions discussing the potential conflict between a lawyer’s duty to guard a client’s communications and his or her obligation to disclose those communications to prevent harm to third parties. Submissions may address, but need not be limited to, the implications for client confidentiality and protection in the corporate setting, the public interest context—including strategic litigation and direct legal services—and government service.

Scholarly and practitioner submissions that advance a novel perspective or proposal related to the ethical aspects of this topic are encouraged in any area of law or policy. Pieces submitted should be timely, and should also address any relevant literature and developments in the field.

Submissions should be around 1500 words including footnotes. We encourage authors to write in a style accessible to policy-makers and practitioners. For a detailed style guide and instructions for submitting your piece, please visit our website, www.thepocketpart.org, and follow the link for “Submissions.”

The deadline for submissions is November 20, 2008

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The Yale Law Journal Pocket Part: The Estate Tax Fundamentals of Celebrity and Control

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Authors Mitchell M. Gans, Bridget J. Crawford, and Jonathan G. Blattmachr previously “suggested in [The Pocket Part] that post-death publicity rights could be excluded from the decedent’s estate for tax purposes if state legislation precluded the decedent from exercising post-death control.” In the latest issue of The Pocket Part they respond to Professor Joshua Tate’s rebuttal of their original piece. The authors argue that Tate’s contention “that under current law, estate tax inclusion would be required regardless of the decedent’s ability to exercise control. . . .[meaning] the estate tax would apply even if the legislation vested those rights in the decedent’s oldest daughter and even if the decedent had no right to alter this outcome” represents an unsupportable view of the law. Gans, Crawford, and Blattmachr argue that “Tate’s analysis misconstrues fundamental estate tax principles and misunderstands the precedents on which he relies.”

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Why Hollywood Does Not Require “Saving” From the Recordkeeping Requirements Imposed by 18 U.S.C. Section 2257

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In the latest edition of The Pocket Part Professor Ann Bartow responds to Alan Levy’s earlier piece How “Swingers” Might Save Hollywood from a Federal Pornography Statute. Bartow argues so “eager was Levy to ‘save Hollywood’ from having to keep records to verify that performers engaging in actual sexually explicit conduct are legally adults, that he grossly distorted the meaning and effect of 18 U.S.C. § 2257.” She also argues that, “[i]ronically, while exaggerating the negative impact of § 2257, [Levy] simultaneously underestimated the problematic nature of a different statutory provision potentially requiring record keeping for performers who engage in simulated sexual conduct.”

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The Yale Law Journal Pocket Part: Marilyn Monroe’s Legacy: Taxation of Postmortem Publicity Rights

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Joshua Tate revisits an April 2008 essay in The Yale Law Journal Pocket Part by Mitchell Gans, Bridget Crawford, and Jonathan Blattmachr, who argued that recent state legislation recognizing postmortem publicity rights fails to take into account the likely estate tax consequences. In the most recent edition of The Pocket Part Tate argues that although Gans, Crawford, and Blattmachr are correct to argue that allowing publicity rights to pass by will or inheritance could have adverse tax consequences for some estates, those ramifications are not as far-reaching as might be imagined. Moreover, the authors’ “legislative solution” will not solve the problem.

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The Yale Law Journal Pocket Part: Citing the Transcript of Oral Argument: Which Justices Do It and Why

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The behavior of the Justices during oral argument has always fascinated Supreme Court watchers. Recent studies have confirmed what experienced observers have long known: Justice Breyer talks the most, Justice Thomas says the least, and Justice Scalia gets the most laughs. What has remained somewhat of a mystery, however, is how much the Justices continue to think about oral argument after they leave the courtroom and return to their chambers. Which Justices give oral argument the most consideration? Which statements by advocates make the most lasting impressions?

In the newest edition of The Pocket Part author Fred Liu explores the influence of oral argument on the Justices.

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The Yale Law Journal Pocket Part: “Home Schooling” in California

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The recent decision of the California Court of Appeal in the Rachel L. case set off a storm of protest from the California “home school” community and drew nationwide media attention. It was understood by many as holding that it is illegal for parents without teaching credentials to teach their own children at home, thus exposing the children and parents to truancy and child dependency proceedings. In the wake of the public response, the Court of Appeal granted rehearing and solicited an amicus brief from the California Department of Education (CDE) and State Superintendent of Public Instruction Jack O’Connell. In the most recent edition of The Pocket Part , CDE General Counsel Michael E. Hersher argues that home-schooled children should not be declared truant if, in the opinion of local public school officials, the parents are providing an adequate education in compliance with the laws governing private schools.

Note: The two previous pieces published in The Yale Law Journal Pocket Part this summer are Agency Preemption Inputs in Riegel v. Medtronic by Christen Linke Young and Prisoners of Their Own War: Can Policymakers Look Beyond the “War on Drugs” to Drug Treatment Courts? by Jennifer Broxmeyer, both accessible from The Pocket Part homepage.

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The Yale Law Journal Pocket Part: A Dialogue on Teaching the Constitution: A Reply to Ernest Young’s “The Constitution Outside the Constitution”

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In the new issue of The Yale Law Journal Pocket Part Sanford Levinson writes a response to Ernest Young’s recent article in The Yale Law Journal, The Constitution Outside the Constitution, and discusses the needs and challenges inherent to teaching the Constitution. In the second piece of this issue Professor Young writes a rebuttal to Professor Levinson’s response, continuing the dialogue about the breadth of constitutional law and what it should encompass in legal education.

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The Yale Law Journal Pocket Part: How “Swingers” Might Save Hollywood from a Federal Pornography Statute

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“Section 2257 of title 18 of the U.S. Code requires that ‘producers’ of photographs and films of ‘actual sexually explicit conduct’ create and maintain records documenting the age of the performers depicted in those performances. The statute’s purpose is to ensure that the performers are not minors. This recordkeeping statute has generally been limited to the adult film industry, although recently the statute’s impact has crept into the realm of mainstream film and television. For over two decades, the statute has withstood numerous constitutional challenges by the adult film industry and civil libertarian organizations. On October 23, 2007, however, the U.S. Court of Appeals for the Sixth Circuit held that § 2257 was overbroad on its face and therefore unconstitutional.”

This week The Pocket Part takes a look at how this case, recently vacated for rehearing, could impact the free speech claims of the adult and mainstream entertainment industry in addition to the constitutional rights of individual adults that engage in private conduct implicated by the record keeping requirement of § 2257.