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May 05, 2009

Vanderbilt Law Review En Banc

posted by Vanderbilt Law Review

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Vanderbilt Law Review En Banc

Reforming the Legal Ethics Curriculum: A Comment on Edward Rubin’s “What’s Wrong with Langdell’s Method and What To Do About It”
by Lauren Solberg

This Response addresses Edward Rubin’s March 2007 article “What’s Wrong With Langdell’s Method and What to Do About It,” which discusses the need for curriculum reform in U.S. law schools. He proposes a curriculum overhaul to reform, at a minimum, first-year law school courses, and he advocates that law schools develop more concentrations—programs akin to undergraduate majors—to offer students a more cohesive curriculum. Rubin also briefly mentions general student and faculty distaste for the course in professional responsibility required by most law schools but proposes no remedy for this issue.

This Response proposes to supplement Rubin’s suggested comprehensive reform with just such a remedy. Recent publications suggest that the required professional responsibility course in its current form is indeed disliked, outdated, and fails to teach law students adequately about real-world ethical issues in legal practice. To resolve this problem, law schools should implement a re-tooled legal ethics curriculum that weaves legal ethics into each core course in the law school curriculum. This method of integration, known as the “pervasive method,” will educate students about practical and relevant ethical issues associated with the particular legal discipline in conjunction with the standard course material. It will serve to reduce monotony in the coursework and provide a better setting than the standard Professional Responsibility course for examining real-world ethical issues in legal practice.

This Response will discuss how to implement the pervasive method in the law school setting and the advantages and disadvantages that accompany it.


Interested in writing a response for En Banc? Check out our website to find out how.

Posted by LR_Vanderbilt at 12:32 PM | Comments (0) | TrackBack

April 28, 2009

Sidebar Publishes Response to The Federal Common Law of Nations

posted by Columbia Law Review
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Columbia Law Review's Sidebar is pleased to announce the publication of a response to The Federal Common Law of Nations by Anthony J. Bellia Jr. and Bradford R. Clark.

In their Article Professors Bellia and Clark describe the role that the law of nations has played throughout American history. They argue that federal courts have not viewed enforcement of the law of nations as an Article III power to fashion federal common law, but have instead applied rules derived from the law of nations as a way to implement the political branches’ Article I and Article II powers to recognize foreign nations, conduct foreign relations, and decide momentous questions of war and peace. This allocation of powers approach, they contend, best explains the most important federal cases involving the law of nations across American history.

Professor Ernest Young's Response questions the historical account provided by Bellia and Clark on two grounds: first, that the debate over reception of the common law at the federal Constitutional Convention shows greater early skepticism about judge-made common law than Bellia and Clark suggest; and second, that the jurisdictional provisions of Article III covering cases implicating foreign affairs were not intended fully to centralize power over such cases in federal courts because they left concurrent jurisdiction in the state courts. In addition Professor Young questions the extent to which the Founding Era history is directly relevant to contemporary debates about how to treat customary international law (CIL). He contends that what does the real work in the Bellia and Clark approach is simply constitutionally-grounded concerns about the separation of powers in foreign affairs cases, not anything about CIL per se.

Posted by LR_Columbia at 03:40 PM | Comments (0) | TrackBack

April 19, 2009

UCLA Law Review 56:4 (April 2009)

posted by UCLA Law Review

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Volume 56, Issue 4 (April 2009)

Articles

A Constitutional Birthright: The State, Parentage, and the Rights Of Newborn Persons (pdf)
James G. Dwyer

“Which Is To Be Master,” The Judiciary or the Legislature? When Statutory Directives Violate Separation Of Powers (pdf)
Linda D. Jellum

Normative Methods for Lawyers (pdf)
Joseph William Singer


Comment

Sex Outside of the Therapy Hour: Practical and Constitutional Limits on Therapist Sexual Misconduct Regulations (pdf)
S. Wesley Gorman

Posted by LR_UCLA at 05:11 PM | Comments (0) | TrackBack

April 13, 2009

The Yale Law Journal Pocket Part: The Mismatch Between Probable Cause and Partial Matching

posted by Yale Law Journal

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Volume 118 of The Pocket Part is please to announce our final publication, The Mismatch Between Probable Cause and Partial Matching by Natalie Ram. Ram's piece discusses a new rule requiring federal officials to collect and retain DNA not only from persons convicted of a federal offense, but also from those merely arrested on suspicion of being involved in a federal offense. Among its flaws, this rule exacerbates the tension between the shared nature of genetic information and the standards justifying DNA collection and retention. By linking DNA collection to probable cause, the new regulation threatens to destabilize our understandings about what constitutes probable cause and to put millions of never-arrested individuals under perpetual genetic suspicion.

Posted by LR_Yale at 10:16 AM

Vanderbilt Law Review En Banc

posted by Vanderbilt Law Review

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Vanderbilt Law Review En Banc

Relative Difference and the Dean Method: A Comment on "Getting the Math Right"
by Mark Bell

This Response critiques a recent Article in the Vanderbilt Law Review, Getting the Math Right: Why California Has Too Many Seats in the House of Representatives, by Professor Paul H. Edelman, on the doctrine of "one person one vote" as applied to congressional apportionment. Professor Edelman discusses the background of "one person one vote" in the congressional apportionment context and asserts that because of a mathematical flaw, the Supreme Court in U.S. Department of Commerce v. Montana incorrectly permitted a method of congressional apportionment that is not in accordance with "one person one vote." Professor Edelman's mathematical assertion is fundamentally correct; the Court did not use the correct denominator in its calculations. However, this Response argues that even if the Court had been presented with the correct mathematical calculations, the Court should not have been persuaded. This Response also argues that there should be a distinction between relative deviation—used in districting—and relative difference—used in apportionment—and proposes a method for calculating relative difference that differs from the ones that Professor Edelman and the Court proposed.

Interested in writing a response for Vanderbilt Law Review En Banc? Check out our website to find out how.

Posted by LR_Vanderbilt at 08:38 AM | Comments (0) | TrackBack

April 03, 2009

April Responses to the Penn Law Review

posted by University of Pennsylvania Law Review
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PENNumbra's featured works are now available at www.pennumbra.com.

This issue contains responses to Immigration Law’s Organizing Principles by Adam B. Cox.

In his Article, Professor Cox questions the central principle of immigration law that rules for selecting immigrants are fundamentally different from rules that regulate the lives of immigrants outside the selection process. Cox argues that the distinction is false because every rule of immigration necessarily effects both selection and regulation. Furthermore, even if rules could effectively be categorized, there is no moral or constitutional significance to the distinction. Rather, they are simply two alternative mechanisms that a state may use to achieve a particular end. Under this new understanding, Cox explores the implications to immigration law and institutional design.

Professor Schuck, in his Response, Immigration Law’s Organizing Principles: A Response, agrees that there is overlap in the incentives and effects of selection rules and regulation rules, but contends that Cox goes too far to claim “essential equivalence of the two.” Rather, he argues the real question is “whether, despite the overlap, enough difference between the two remains to justify maintaining some distinction in the legal rules that apply to them.” Unfortunately, despite Cox’s “valuable contribution” to the immigration law scholarship, by claiming equivalence of the two types of rules, Cox does not fully address, “much less answer” this question.

>Read the full response by Peter H. Schuck

Professor Huntington, in her Response, A House Still Divided, is sympathetic to Cox’s desire to discard the traditional dichotomy between rules that govern the selection and regulation of immigrants. She identifies, however, two points of resistance to destabilizing the categories. Both because “there is some difference between selection and regulation,” and, more importantly, there is “political utility” in distinguishing between the two, Huntington argues that academics “need to be forthright about the power the distinction retains.”

>Read the full response by Clare Huntington

Posted by LR_Penn at 11:32 AM | Comments (0) | TrackBack

Debate: Democracy, Political Ignorance, and Constitutional Reform

posted by University of Pennsylvania Law Review

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Democracy, Political Ignorance, and Constitutional Reform

In Democracy, Political Ignorance, and Constitutional Reform, Professors Ilya Somin and Sanford Levinson discuss the constitutional implications of a federal government whose “size, scope, and complexity” are far beyond anything that the framers could have possibly imagined and an electorate that is more likely to be able to name the Three Stooges than the three branches of their government. While both professors agree that the situation is problematic for our democratic form of government, they offer very different solutions to address the issue. Professor Somin argues that given such political ignorance, there is no guarantee that opening the door to large-scale constitutional reform would be able to provide a government that is any better. Rather, the best solutions would be aimed at “reduc[ing] the overweening power of government over society.” Professor Levinson, on the other hand, asserts any efforts to radically reduce government are akin to “swimming upstream, perhaps against a waterfall.” Instead, he offers three Constitutional reforms to adapt our founding document to better match the complexity of the modern state. Through these three modest changes, Professor Levinson asserts we can take significant steps toward a “more perfect Union.”

As always, please visit PENNumbra to read previous Responses and Debates, or to check out pdfs of the Penn Law Review's print edition articles.

Posted by LR_Penn at 11:28 AM | Comments (0) | TrackBack

March 31, 2009

The Yale Law Journal Pocket Part: Roberts Court Jurisprudence and Legislative Enactment Costs

posted by Yale Law Journal

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The Pocket Part is proud to announce the publication of Roberts Court Jurisprudence and Legislative Enactment Costs by William Rinner. The piece highlights a crucial but overlooked function of the judiciary in crafting doctrines that discourage constitutionally problematic statutes. Rinner argues that rather than drawing explicit boundaries of permissible and impermissible statutory schemes, courts can and do produce constitutional doctrine that leaves these boundaries blurry, thus raising the risk of reversal for time- and resource-strapped legislators.

Posted by LR_Yale at 11:19 AM

March 23, 2009

The Yale Law Journal Pocket Part: Bruce Ackerman on Mirijan Damaška

posted by Yale Law Journal

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The Pocket Part is please to announce the publication of a short essay by Bruce A. Ackerman written in tribute to his long time friend and colleague Mirijan Damaška.

Posted by LR_Yale at 09:15 AM

March 13, 2009

Sidebar Publishes Responses to The Subjective Experience of Punishment

posted by Columbia Law Review

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Columbia Law Review's Sidebar is pleased to announce the publication of two responses to The Subjective Experience of Punishment by Adam J. Kolber.

In this Essay Professor Kolber argues that any successful justification of punishment must take into account how the punishment is experienced by the individual offender. Thus, a retributivist must measure punishment severity in a manner that is sensitive to individuals’ experiences of punishment to avoid punishing people more than is justified. Similarly, a consequentialist must consider the individual experience of punishment in order to create a system that is optimally deterrent.The Responses challenge these claims.

Miriam H. Baer responds to the Essay from a consequentialist perspective, arguing that sentencing is just one variable in deterrence and that calibrating punishment based on an individual's subjective reaction to punishment, without taking into account the way in which law enforcement monitors and detects crime, may not have the deterrent effects Kolber claims.

Kenneth W. Simons responds from a retributivist perspective, arguing that retributivists need not calibrate punishment to an offender's subjective experience of punishment because objective deprivations are also relevant to retribution and that, to the extent that subjective experiences are relevant, it is unclear which mental states should be considered in evaluating the severity of a particular sentence.

Posted by LR_Columbia at 10:48 AM | Comments (0) | TrackBack

March 12, 2009

(Pre-)Expedited Review Question

posted by Darian Ibrahim

I’ll be back to blogging about Silicon Valley, entrepreneurial finance, and corporate law in my next posts, but a recent entry over at The Faculty Lounge posed an interesting question that many of us might be thinking about during the law review submission season: How much information should authors give editors when seeking an expedited review? The prior post (and the interesting comments it generated) focused on whether authors should update an expedite request when new offers come in, even if it doesn't change the deadline. I want to pose a different question: Do editors like it when authors tell them that so-and-so journal has selected the author's piece for final review (which the journals usually let you know) and therefore an expedite request might be coming their way?

Speaking from personal experience, in the past I’ve encountered this situation twice, and both times the journals taking my piece to final review were in the top 20 (I mention this because it might make a difference in how the editors answer). I thought that letting the higher-ups know might attract some attention to my work (after all, the goal is getting pulled from the pile and read, right?), but also worried that these journals might not care if it wasn’t yet an offer – and worse yet, what if it didn't become one? So the question boils down to: Does making it to final review stage with one (well-respected) journal generate sufficient buzz that it’s worth the risk of annoyance and no offer coming through? Also, how does the journal taking your piece to final review feel about this practice – if it finds out, would this potentially nix an offer? Wouldn't want that. Editors: any advice would be appreciated!

UPDATE: In thinking through this some more after I posted, I realized that one reason to alert higher-ups at the final review stage rather than wait for the offer is precisely because an offer might not come. You still get what an expedite request provides (the higher-ups reading your piece) even if the original journal ultimately rejects you. All of which is evidence that this process will make you crazy if you let it, and a much better course of action is to submit and move on to new projects!

Posted by Darian_Ibrahim at 12:47 PM | Comments (4) | TrackBack

March 10, 2009

Debate:  Implicit Race Bias and the 2008 Presidential Election: Much Ado About Nothing?

posted by University of Pennsylvania Law Review
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Implicit Race Bias and the 2008 Presidential Election: Much Ado About Nothing?

Dr. Gregory Park and Professor Jeffrey Rachlinksi debate Professor Richard Epstein on the implications of President Obama’s election on race-based policies such as affirmative action and antidiscrimination laws.  Dismissing claims that a “post-racial America” has arrived, Parks and Rachlinski argue that the presidential campaign simply demonstrated that modern racism “operates not as an absolute barrier, but as a kind of tax on members of racial minorities.”  Because a typical minority job applicant does not have access to the “enormous resources” available to Obama, affirmative action and antidiscrimination laws are still necessary.  Epstein, on the other hand, argues that while Parks’ and Rachlinski’s analysis of the campaign is flawed, the debate itself is a “sideshow.”  Instead, “any private individual or firm can hire a person for good reason, bad reason, or no reason at all” and the market, not public force, should end unsavory hiring practices.

As always, please visit PENNumbra to read previous Responses and Debates, or to check out pdfs of the Penn Law Review's print edition articles.

Posted by LR_Penn at 10:15 AM | Comments (1) | TrackBack

March Responses to the Penn Law Review

posted by University of Pennsylvania Law Review

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PENNumbra's featured works are now available at www.pennumbra.com.

This issue contains responses to Saving Lives Through Administrative Law and Economics by John D. Graham.

In this Article, Dean Graham examines the recent history of federal lifesaving regulation and argues that, considering both philosophical and practical perspectives, lifesaving regulation informed by benefit-cost analysis (BCA) has compelling advantages relative to regulation informed by the main alternatives to BCA. Using his first-hand experience as the Administrator of the Office of Information and Regulatory Affairs (OIRA), Graham suggests that, despite its reputation for antiregulatory bias, BCA is actually an influential tool for protecting or advancing valuable lifesaving regulations. But the Article also pinpoints problems in the “benefit-cost” state, and identifies opportunities for improvement in the process of lifesaving regulation. Graham concludes by suggesting that innovations in analytic practice that would strengthen the efficiency and fairness of federal lifesaving regulation.

Professor Elliott, in his Response, Only a Poor Workman Blames his Tools:  On the Uses and Abuses of Benefit-Cost Analysis in Regulatory Decision Making About the Environment, faults Graham’s argument for falling into “the two conceptual traps that it inherits from the critics:   both the ‘fine tuning’ and the ‘selective realism’ fallacies.”  If these two fallacies were better understood and avoided, Elliott argues that “BCA can be a very useful, albeit imperfect, technique for comparing policies.”
>Read the full response by E. Donald Elliott

Professor Hsu, in his Response, Saving Lives Through Administrative Law and Economics:  A Response, takes issue with Graham’s support for the “soft” BCA rule.   Instead, he comes to the defense of using BCA as a “procedural” rule, “in which a [BCA] is required of agency actions but is provided for informational purposes only and not intended to be determinative in any way.”  Hsu also looks into the potential for the growing field of happiness research to better inform BCA, helping to ensure that BCA best fulfills its informational role.
>Read the full response by Shi-Ling Hsu

Professor Hammitt, in his Response, Saving Lives:  Benefit-Cost Analysis and Distribution, focuses on Graham’s support for using BCA as a “soft” rule, which would allow for considerations of equity along with the more common utilitarian measurements.  After exploring the issues of measurement inherent in BCA, Hammitt concludes that BCA helps ease some tensions in regulatory decision making by “providing an integrated framework to account for the consequences of regulation and making estimates of the magnitudes of these consequences explicit and open to review and challenge.”  And, by incorporating equity concerns, Hammitt believes that Graham’s test ultimately “should make BCA even more valuable.”
>Read the full response by James K. Hammitt

Posted by LR_Penn at 10:02 AM | Comments (0) | TrackBack

March 04, 2009

The Yale Law Journal Pocket Part: Legal Ethics Symposium

posted by Yale Law Journal

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The Yale Law Journal Pocket Part is pleased to announce the publication of our symposium on legal ethics. This week presents the final Pocket Part symposium issue of the academic year.

Posted by LR_Yale at 08:40 AM

February 13, 2009

Southern California Law Review, 82:2 (January 2009)

posted by Southern California Law Review

Southern California Law Review

Southern California Law Review, 82:2 (January 2009)

In Memoriam

Rich Chacon, Erwin Chemerinsky, James B. Curtis, Susan Estrich, Michael J. Graetz, Louise LaMothe & Michael Sims, A Tribute to Professor Charles H. Whitebread, 82 S. Cal. L. Rev. 173 (2009)

Articles

Richard H. McAdams, Beyond the Prisoners’ Dilemma: Coordination, Game Theory, and Law, 82 S. Cal. L. Rev. 209 (2009)

Gerald L. Neuman, The Extraterritorial Constitution After Boumediene v. Bush, 82 S. Cal. L. Rev. 259 (2009)

Notes

Andrew C. Elken, Rethinking the Material Adverse Change Clause in Merger and Acquisition Agreements: Should the United States Consider the British Model?, 82 S. Cal. L. Rev. 291 (2009)

Michael Reynolds, Depictions of the Pig Roast: Restricting Violent Speech Without Burning the House, 82 S. Cal. L. Rev. 341 (2009)

Posted by LR_USC at 03:35 PM | Comments (1) | TrackBack

February 09, 2009

Liability for Exercising Personal Belief Exemptions from Vaccination

posted by Michigan Law Review

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The Michigan Law Review’s companion journal First Impressions has published an online symposium on Liability for Exercising Personal Belief Exemptions from Vaccination.

Recent outbreaks of diseases such as measles, mumps, and pertussis, which have mostly been eradicated in the United States for decades, have called attention to the increased use of personal belief exemptions (sometimes called philosophical exemptions) to childhood vaccination requirements. Twenty states, including Michigan, allow personal belief exemptions, in addition to the medical exemptions allowed by every state. Since the 1990s, parents have increasingly used these personal belief exemptions, often related to an unproven belief that vaccines are linked to autism and other disorders. An outbreak of the disease can sicken not only children who are unvaccinated, but also children who have received the vaccine. While in the past, unvaccinated children were more likely to be low-income, increasingly more are higher-income and their parents well-educated. With the increased risk that the use of personal belief exemptions will limit the effectiveness of vaccination, this symposium addresses whether parents who refuse to vaccinate their children should be liable in tort to individuals who are infected and injured by the unvaccinated children.

The extended post contains a more complete description of the symposium and links to the essays.

Douglas S. Diekema of the Seattle Children's Hospital applies his medical expertise to the question of tort liability for personal belief exemptions and explains how such exemptions might fit the elements of negligence in tort law.


Pediatrician Jay Gordon privileges parental choice over concerns about the possible harms from the use of vaccine personal belief exemptions, arguing against holding parents liable for the use of the exemptions.


Jason L. Schwartz of the University of Pennsylvania Center for Bioethics warns that the use of tort liability to combat the overuse of personal belief exemptions may undermine efforts to promote vaccination by hardening opposition to childhood vaccination and by exacerbating misplaced alarm about such vaccinations.


Alexandra Stewart of the School of Public Health and Health Services at the George Washington University Medical Center proposes that public nuisance law might be an effective and appropriate remedy to address harms caused by parental use of personal belief exemptions.


Stephen P. Teret and Jon S. Vernick of the Johns Hopkins Bloomberg School of Public Health claim that the deterrent effect of tort liability makes it an advisable solution to the foreseeable and preventable harms that the use of personal belief exemptions can cause.


Daniel B. Rubin and Sophie Kasimow of the University of Michigan Law School identify a possible problem with the use of individual tort liability to address the harms caused by personal belief exemptions—that imposing such liability might undermine the sense of collective well-being necessary to maintain sufficient childhood vaccination rates.

To download a PDF of the entire symposium, feel free to click here.

Additional First Impressions content is available at http://www.michiganlawreview.org.

Posted by LR_Michigan at 06:44 PM | Comments (1) | TrackBack

The Yale Law Journal Pocket Part: The Continuing Viability of Medicaid Rights After the Deficit Reduction Act of 2005

posted by Yale Law Journal

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In the latest edition of The Pocket Part Harper Jean Tobin and Rochelle Bobroff, attorneys at the Federal Rights Project of the National Senior Citizens Law Center, respond to a recent note in The Yale Law Journal, in which Jon Donenberg argued that (1) program changes in Medicaid ushered in by the Deficit Reduction Act of 2005 (DRA) sub silentio rendered Medicaid’s basic availability provision unenforceable under 42 U.S.C. § 1983, and (2) state fair hearing procedures constitute the best alternative for enforcement of beneficiary rights. Tobin and Bobroff argue that Donenberg misreads both the DRA and § 1983 jurisprudence, overstates the usefulness of fair hearings, and overlooks the better alternative of preemption claims to enforce the Medicaid Act.

Posted by LR_Yale at 09:05 AM

January 26, 2009

The Yale Law Journal Pocket Part: Virtual Worlds Symposium

posted by Yale Law Journal

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The Yale Law Journal Pocket Part is pleased to announce the publication of a symposium on legal issues surrounding the rise of virtual worlds. This week presents the second of the two part virtual worlds symposium issue with pieces by Leandra Ledermann and Zachery Jones.

Posted by LR_Yale at 08:32 AM

January 25, 2009

Southern California Law Review, 82:1 (November 2008)

posted by Southern California Law Review

Southern California Law Review

Southern California Law Review, 82:1 (November 2008)

Articles

Anne L. Alstott, Is the Family at Odds with Equality? The Legal Implications of Equality for Children, 82 S. Cal. L. Rev. 1 (2008)

Scott A. Keller, How Courts Can Protect State Autonomy from Federal Administrative Encroachment, 82 S. Cal. L. Rev. 45 (2008)

Notes

Brian Cook, Clearing a Path for Digital Development: Taking Patents in Eminent Domain Through the Adoption of Mandatory Standards, 82 S. Cal. L. Rev. 97 (2008)

Noelle Formosa, Ganging Up on RICO: Narrowing Gonzales v. Raich to Preserve the Significance of the Jurisdictional Element as a Constitutional Limitation in the Racketeer Influenced and Corrupt Organizations Act, 82 S. Cal. L. Rev. 135 (2008)

Posted by LR_USC at 07:28 PM | Comments (0) | TrackBack

January 21, 2009

On the Colloquy: Military Commissions, International Antitrust, Presidential Transitions, and More

posted by Northwestern University Law Review

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In the past few months, the Northwestern University Law Review Colloquy has published essays contributing to several existing and new colloquies. Amos N. Guiora wrote an essay about military commissions and national security courts, which added to the colloquy on the Military Commissions Act. Click here to view all of the essays in the colloquy on a single page. Salil Mehra wrote an essay regarding building antitrust agency capacity that responded to an earlier essay on the subject by D. Daniel Sokol. Both essays can be viewed by clicking here.

Additionally, the Colloquy recently published an essay by Paul Horwitz that began a discussion on presidential transitions. In conjunction with this colloquy, we republished a series of essays by Seth Barrett Tillman and Brian C. Kalt that were originally published in volume 101 of the Colloquy. To view all of the essays on one page click here. We will be publishing several more essays regarding presidential transitions in the coming weeks.

We have continued to focus on recent Supreme Court cases with an essay on City of Pleasant Grove v. Summun by Paul E. McGreal. We have also published stand-alone essays on various topics, such as an essay by Alex B. Long on recent amendments to the Americans with Disabilities Act, an essay by Jennifer S. Hendricks that proposes revisions to the Employment Non-Discrimination Act, an essay by Adam N. Steinman that addresses proposed amendments to Rule 56 of the Federal Rule of Civil Procedure, and an essay by David T. Hardy that discusses the lecture notes of St. George Tucker. This week, we published an essay by Mitchell H. Rubinstein concerning an interesting case where an attorney and his nurse clients were criminally charged after the nurses resigned en mass.

For more, go to the Colloquy archives page, and remember to check back each week for new content.

Posted by LR_NW at 11:56 PM | Comments (0) | TrackBack

January 19, 2009

The Yale Law Journal Pocket Part: Virtual Worlds Symposium

posted by Yale Law Journal

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The Yale Law Journal Pocket Part is pleased to announce the publication of a symposium on legal issues surrounding the rise of virtual worlds. This week presents the first of the two part virtual worlds symposium issue with pieces by Joseph Blocher, James Grimmelmann, and Joshua Fairfield.

Posted by LR_Yale at 09:20 AM | Comments (0)

December 15, 2008

The Yale Law Journal Pocket Part: Imposing Tort Liability on Websites for Cyber- Harassment

posted by Yale Law Journal

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Recent examples have brought the vexing problem of cyber-harassment to the public’s attention. Under § 230 of Title 47 of the U.S. Code, websites are not liable as publishers for the content on their sites so long as they are not involved in the creation of the objectionable content. Accordingly, much of the relevant scholarship has focused on repealing § 230 or imposing liability upon posters.

The immunity that website sponsors—the entities that own the domain name and control the activity on a website—have as publishers should not mean that they have no obligation whatsoever for the activity on their website. Website sponsors have a proprietary interest in their websites. Accordingly, as Nancy Kim argues in the latest edition of The Pocket Part, they should be subject to the same standard of conduct as other proprietors.

Posted by LR_Yale at 04:50 PM

December 03, 2008

UCLA Law Review Discourse

posted by UCLA Law Review

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56 UCLA Law Review Discourse (December 2008).

Articles
Stephen M. Bainbridge, Reflections on Twenty Years of Law Teaching, 56 UCLA L. Rev. Discourse 13 (2008).

Posted by LR_UCLA at 04:37 PM | Comments (0) | TrackBack

November 30, 2008

December Responses

posted by University of Pennsylvania Law Review

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PENNumbra’s featured works are now available at www.pennumbra.com. This issue contains responses to an article from the print edition of the Law Review and a debate.

Thomas Berg, Richard Garnett, and Steven Smith respond to Nelson Tebbe’s Excluding Religion, 156 U. PA. L. REV. 1263 (2008). In his article, Professor Tebbe analogizes free exercise to other constitutional rights such as speech and privacy and argues that the government may single out religious activities and entities for exclusion from its support programs without offending the Constitution. Though Tebbe explains that this power is consrtained by several limits, he maintains that “the government need not remain neutral toward religion in its support programs,” even if doing so “may skew private incentives toward nonreligious activities and messages.” Tebbe concludes by exploring the implications of his argument for how a government ought to be permitted to “influence private choices concerning matters of conscience.”

Professor Berg, in his Response, Religious Choice and Exclusions of Religion, argues that Professor Tebbe’s justifications for his argument fail because religious choice is a central purpose of the Religion Clauses. After rejecting Tebbe’s justifications and criticizing Tebbe’s interpretation of legal precedent, Berg concludes that “Tebbe’s argument for government discretion to exclude religion succeeds only if preserving the religious choice of individuals and groups is not a fundamental First Amendment value.”

While Professor Garnett generally expresses his appreciation of Tebbe’s “thorough and thoughtful examination . . . of important and difficult questions,” his Response, Excluding Religion: A Response, expresses “some doubts and reservations.” First, while he agrees that “governments may and should, sometimes and for some purposes, treat religion in a special or distinctive way,” he questions whether the reasons Tebbe gives for exclusion are actually “Establishment Clause reasons.” Second, Garnett expresses reservations that “Tebbe’s conclusions are not as bracing or radical as one might have expected, or even hoped.” Specifically, Garnett takes issue with the limits that Tebbe would place on this power of exclusion and questions why Tebbe’s analysis “does not carry him further, to a somewhat more ‘muscular’ liberalism.”

Professor Smith, in his Response, Playing Around with Religion’s Constitutional Joints, begins by arguing generally that, when it comes to the Religion Clause, “there just is not much to say . . . that could or should convince anybody who is not independently inclined toward a particular advocate’s point of view.” Tracing at least “three clusters of authorities and arguments” with regard to government support for religion, Smith argues that no side is in a position to be convinced by the arguments of the others. While he finds himself siding with Tebbe’s position, he “can see no reason why anyone not so inclined should be persuaded.”

Finally, in The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, Seth Barrett Tillman and Professor Steven Calabresi debate whether there is a constitutional bar to joint senate-presidential office-holding. Treating the text formalistically, Tillman carefully parses the text of the Constitution’s Incompatibility Clause and other related clauses to reach the conclusion that the presidency is not “an Office under the United States.” However, citing other constitutional provisions and the history of presidential practice, Professor Calabresi counters that Tillman has “made an ingenious argument for an utterly implausible proposition” that “is contrary to the plain meaning of the constitutional text and to the way we have done things for eight hundred years.”

As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review's print edition articles.

Posted by LR_Penn at 11:33 PM | Comments (0) | TrackBack

November 24, 2008

The Yale Law Journal Pocket Part: Sovereign Wealth Funds Symposium

posted by Yale Law Journal

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The Yale Law Journal Pocket Part is pleased to announce the publication of a symposium on legal issues surrounding the growth and use of sovereign wealth funds as an international investment tool. This week presents the second of the two part sovereign wealth funds symposium issue with pieces by Paul Rose and Arina Popova.

Posted by LR_Yale at 04:59 PM

Vanderbilt Law Review En Banc

posted by Vanderbilt Law Review

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Vanderbilt Law Review En Banc

Wrongs Without Recourse: A Comment on Jason Solomon’s Judging Plaintiffs
by Professor John C.P. Goldberg
November 22, 2008

Jason Solomon’s very interesting Article Judging Plaintiffs argues that neither efficient-deterrence theories nor corrective justice theories adequately explain the existence of rules that bar or limit recovery by a tort victim on the ground that she failed to take certain pre-tort steps to protect herself from harm, or failed to take certain post-tort steps in response to the harm. The vitality of these “judging plaintiffs” doctrines, he maintains, attests to the superiority of an alternative theory of tort known as civil recourse theory. According to Solomon, recourse theory treats tort law as one component of a liberal political order and thus explains these doctrines in terms of a liberal principle calling for state nonintervention where it was or is unnecessary. In this Response, I situate Judging Plaintiffs within current tort theory debates, describe briefly its major claims, and discuss some of the doctrinal and theoretical strengths and weaknesses of the position it stakes out.

Interested in writing a response for En Banc? Check out our website to find out how.

Posted by LR_Vanderbilt at 08:49 AM | Comments (0) | TrackBack

November 17, 2008

The Yale Law Journal Pocket Part: Sovereign Wealth Funds Symposium

posted by Yale Law Journal

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The Yale Law Journal Pocket Part is pleased to announce the publication of a symposium on legal issues surrounding the growth and use of sovereign wealth funds as an international investment tool. This week presents the first of the two part sovereign wealth funds symposium issue with pieces by Mark E. Plotkin, Victor Fleischer, and Mihir A. Desai & Dhammika Dharmapala.

Posted by LR_Yale at 08:15 PM

November 05, 2008

November Responses

posted by University of Pennsylvania Law Review

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PENNumbra’s featured works are now available at www.pennumbra.com. This issue contains responses to an article from the print edition of the Law Review and a debate.

Stephanos Bibas, George Thomas, and Ronald Wright respond to Josh Bowers’ Punishing the Innocent, 156 U. PA. L. REV. 1117 (2008). In his article, Professor Bowers makes the seemingly counterintuitive argument that the criminal justice system should make it easier for innocent defendants to enter guilty pleas and take advantage of plea bargains. Bowers maintains that, because most criminal defendants are recividivists in low-stakes cases, the arguments for reducing the process costs of taking a case to trial vastly outweigh the concerns of false guilty pleas and wrongful punishment. Thus, the system should view false guilty pleas as a legal fiction and require defense attorneys to advise and assist innocent defendants who wish to enter a false guilty plea to avoid these process costs.

Professor Bibas, in his Response, Exacerbating Injustice, argues that Professor Bowers’ argument “rests on [the] misguided premise” that “the job of plea rules and defense lawyers is simply to maximize the satisfaction of individual defendants’ preferences.” According to Bibas, false guilty pleas would serve to undermine “the public faith and confidence in the judicial system” and to impede both guilty defendants’ admissions of their own guilt and the healing benefits of closure for victims. Bibas concludes that our criminal justice system must remain morally committed to “exonerating the innocent, however inconsistant we are in pursuing that in practice.”

Professor Thomas, in his Response, Helping Defendants in High-Stakes Cases, deems Professor Bowers’ article “a breath of fresh air.” However, Thomas argues for an even more radical change of our system—where specially-appointed magistrates would “actively engage in a search for truth rather than being mere referees for adversaries.” These “screening magistrates” would screen out cases where defendants “are probably not guilty,” and then act as “plea regulators” for the cases that remain, proposing a charge and sentence that the defendant could either take or move on to a jury trial. Thomas believes that moving away from our current adversarial system in this way would “move us toward a model where protecting innocence is more important than advocacy.”

Professor Wright, in his Response, Guilty Pleas and Submarkets, criticizes Bowers’ focus on just recidivists in low-stakes cases. Instead of viewing “defendants” as one global market, Wright believes it would be better to “to evaluate and regulate the submarkets of criminal justice separately.” Furthermore, Wright notes that there are also submarkets among criminal prosecutors, depending on the organization of prosectuion offices around the country. Wright thus suggests that the solution lies in targeted regulation that is sensitive to these submarkets, and not global change, as “the simple microeconomic model of buyers and sellers in the market for guilty pleas has taken us about as far as it can go”

Finally, in First Amendment Limits on the Regulation of Judicial Campaign Speech: Defining the Government’s Interest, Professors Paul E. McGreal and James J. Alfini explore the permissible limits on judicial campaign speech in light of the Supreme Court’s First Amendment Campaign Speech precedent.. Professor McGreal argues that, as long as a judge’s campaign speech expresses an accepted form of legal analysis, that speech may not be regulated without violating the judicial candidate’s First Amendment rights. Dean Alfini, on the other hand, would require a more stringent regulation of campaign speech and would base such restrictions on the ABA’s formulation that judges may not “make pledges, promises, or commitments” in their campaign that would compromise their impartiality.

As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review's print edition articles.

Posted by LR_Penn at 05:05 PM | Comments (0) | TrackBack

November 03, 2008

The Environmental Agenda for the Next Administration

posted by Michigan Law Review

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The Michigan Law Review’s companion journal First Impressions this week published an online symposium on The Environmental Agenda for the Next Administration.

The new President in 2009 will follow an administration which has not been seen as proactive in developing environmental policy to address issues of climate change, alternative energy, and sustainability. Environmental organizations, legal and policy academics, and industry officials are beginning to debate the necessary focus of that next administration as it endeavors to develop sustainable environmental policies. As the nation’s major environmental laws were enacted three decades ago, when the country faced very different environmental problems, this symposium proposes a fresh legal and policy approach to climate change, alternative energy, and sustainability for the next presidential administration to follow.

The extended post contains a more complete description of the symposium and links to the essays.

Lisa Heinzerling of the Georgetown University Law Center (and lead author the Massachusetts v. EPA brief) suggests several steps that the next administration can take within existing statutory frameworks, since many of the previous administration's actions and omissions can be remedied by executive action alone.


Ann E. Carlson of the UCLA School of Law believes that the next administration should allow exemplar states to take a leadership role in setting emissions standards for appliances, in light of ineffective federal efforts in this area.


Thomas P. Lyon of the Ross School of Business and the School of Natural Resources and Environment at the University of Michigan recommends that the next administration should create a partnership between the United States and China to develop technology for carbon capture and sequestration.


Jonathan Z. Cannon of the University of Virginia proposes that the next administration order federal agencies to adopt sustainable practices related to resource management, and also create an interagency Sustainable Watersheds Task Force to coordinate efforts among federal agencies and state and local governments to promote watershed protection.


Amie Medley of the University of Michigan Law School argues that the next administration should facilitate local, citizen-driven efforts: individuals taking action in their homes and communities in order to decrease the unsustainable demand for natural resources.


Joshua Van der Ploeg of the University of Michigan Law School suggests that the next administration work to promote a new international framework for regulating greenhouse gases that will balance the needs of developed and developing nations, and should adopt domestic policies that will further that effort.

To download a PDF of the entire symposium, feel free to click here.

Additional First Impressions content is available at http://www.michiganlawreview.org.

Posted by LR_Michigan at 01:41 PM | Comments (0) | TrackBack

October 28, 2008

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

posted by Yale Law Journal

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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.

Posted by LR_Yale at 10:17 PM

October 21, 2008

On the Colloquy:

posted by Northwestern University Law Review

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It has been a busy summer and fall for the Northwestern University Law Review Colloquy. We have focused on timely issues including several recent Supreme Court decisions, and we have published several colloquies as well as stand alone pieces. Recent colloquies have included discussions of: The Military Commissions Act of 2006, Preemption of State Laws in Drug Cases, Capital Punishment for Child Rape Offenders, and Antitrust and the Internet. Click on the respective links to view all of the essays on a single page. Additionally, click on the links below to access each of our recent essays.

Engaging Capital Emotions  [pdf]   Douglas A. Berman & Stephanos Bibas
A Floor, Not a Ceiling: Federalism and Remedies for Violations of Constitutional Rights in Danforth v. Minnesota  [pdf]   Ilya Somin
The Many Mendelsohn "Me Too" Missteps: An Alliterative Response to Professor Rubinstein  [pdf]   Paul Secunda
Sprint/United Management Company v. Mendelsohn and Case-by-Case Adjudication of "Me Too" Evidence of Discrimination  [pdf]   David L. Gregory
The Significance of Sprint/United Management Company v. Mendelsohn: A Reply to Professors Gregory and Secunda  [pdf]   Mitchell H. Rubinstein
Ordeal By Innocence: Why There Should Be a Wrongful Incarceration/Execution Exception to Attorney-Client Confidentiality  [pdf]   Colin Miller
Heller's Future in the Lower Courts  [pdf]   Glenn H. Reynolds & Brannon P. Denning
What Riegel Portends for FDA Preemption of State Law Products Liability Claims  [pdf]   Catherine M. Sharkey
Competition and Privacy in Web 2.0 and the Cloud  [pdf]   Randal C. Picker
Rediscovering the Law's Moral Roots  [pdf]   Morris B. Hoffman
Child Rape, Moral Outrage, and the Death Penalty  [pdf]   Susan A. Bandes
Beyond Guantanamo, Obstacles and Options  [pdf]   Gregory S. McNeal
The Case for Field Preemption of State Laws in Drug Cases  [pdf]   Richard A. Epstein
Finding a Happy and Ethical Medium Between a Prosecutor Who Believes the Defendant Didn't Do It and the Boss Who Says That He Did  [pdf]   Melanie D. Wilson
If Obscenity Were To Discriminate  [pdf]   Barry P. McDonald
No Third Class Processes for Foreigners  [pdf]   Benjamin G. Davis
Crying Havoc Over the Outsourcing of Soldiers and Democracy's Slipping Grip on the Dogs of War  [pdf]   Joshua S. Press
The Influence of Ex Parte Quirin and Courts-Martial on Military Commissions  [pdf]   Morris D. Davis
Continuing the Debate About Presidential Debates  [pdf]   Alexander J. Blenkinsopp
Is Military Law Relevant to the "Evolving Standards of Decency" Embodied in the Eighth Amendment?  [pdf]   Corey Rayburn Yung
A Comment on Rosenberg's New Edition of The Hollow Hope  [pdf]   Richard Delgado
Dysfunctional Deference and Board Composition: Lessons from Enron  [pdf]   Bernard S. Sharfman & Steven J. Toll
Diversity and Race-Neutrality  [pdf]   Kenneth L. Marcus
On Jurisdictional Elephants and Kangaroo Courts  [pdf]   Stephen I. Vladeck

For more, go to the Colloquy archives page, and remember to check back each week for new content.

Posted by LR_NW at 05:29 PM | Comments (0) | TrackBack

October 14, 2008

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

posted by Yale Law Journal

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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.

Posted by LR_Yale at 04:30 PM

October 11, 2008

The Yale Law Journal Pocket Part: Call for Papers

posted by Yale Law Journal

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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

Posted by LR_Yale at 10:48 AM

October 07, 2008

Vanderbilt Law Review En Banc

posted by Vanderbilt Law Review

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Vanderbilt Law Review is proud to announce the launch of its online companion, En Banc. In its first publication, En Banc presents a Response by Professor Randall S. Thomas to an Article by Professors Stephen Choi and Jill Fisch.

Public Pension Funds as Shareholder Activists: A Comment on Choi and Fisch
by Professor Randall S. Thomas
October 6, 2008

This Response critiques a recent Article on public pension fund shareholder activism by Stephen Choi and Jill Fisch. Choi and Fisch use the results of a survey of forty public pension funds as a basis for an empirical and normative analysis of public pension fund activism. Choi and Fisch’s survey evidence gives us some tantalizing glimpses inside the black box of public pension fund activism. At the end of the day though, we are still left with significant questions. This Response raises some of these questions, critiquing the representativeness of Choi and Fisch’s sample, their interpretation of the survey results on litigation and non-litigation activism, and the “right” place for public pension funds in the spectrum of shareholder activists.

Posted by LR_Vanderbilt at 07:58 AM | Comments (0) | TrackBack

September 30, 2008

Senator John McCain and Natural Born Citizenship

posted by Michigan Law Review

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The Michigan Law Review’s companion journal First Impressions this week published an online symposium on Senator John McCain and Natural Born Citizenship.

Senator John McCain, the current Republican Party nominee for President, was born in the Panama Canal Zone in 1936. The circumstances of his birth raise the question of whether he is a "natural born citizen" as required by Article II, section 1 of the Constitution. The symposium contributors explore both the substance of this issue and the methods used to resolve it.

The extended post contains a more complete description of the symposium and links to the essays.

Gabriel J. Chin of the University of Arizona argues that the citizenship statute in effect in 1936 did not grant Senator McCain citizenship at birth. A person must be a citizen at birth to be a natural born citizen. Because he was not born a citizen, he is not eligible to the office of president.


Lawrence B. Solum of the University of Illinois Law School discusses how New Originalists would focus on the original public meaning of the term "natural born citizen." He notes that the notion of a “natural born citizen” was likely a term of art derived from the idea of a “natural born subject” in English law—a category that most likely did not extend to persons, like Senator McCain, who were born outside sovereign territory. But the Constitution speaks of “citizens” and not “subjects,” introducing uncertainties and ambiguities that might (or might not) make McCain eligible for the presidency.


Daniel P. Tokaji of The Ohio State University Moritz College of Law suggests that lower federal courts will not reach the merits of suits about Senator McCain's eligibility because of standing requirements and the political question doctrine. These justiciability constraints dictate that the question of Senator McCain's eligibility would be more aptly resolved in state court or by Congress.


Peter J. Spiro of the Temple University Beasley School of Law claims that non-judicial actors—including Congress, editorialists, leading members of the bar, and the People themselves—have settled the question of Senator John McCain's eligibility. The emergence of this sort of popular consensus is an acceptable method of constitutional determination.


Yale Law School alumnus Stephen E. Sachs argues that Senator John McCain did not fall into a loophole in the governing citizenship statute. That statute made citizens of certain children “born out of the limits and jurisdiction of the United States." The best historical evidence indicates that this phrase should be interpreted such that Senator John McCain would have been a citizen at birth.

To download a PDF of the entire symposium, feel free to click here.

Additional First Impressions content is available at http://www.michiganlawreview.org.

Posted by LR_Michigan at 11:58 PM | Comments (0) | TrackBack

Virginia Law Review In Brief

posted by Virginia Law Review

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In Brief, the online companion to the Virginia Law Review, recently published a discussion centered around Professor Stephen F. Smith's article The Supreme Court and the Politics of Death, published in the April 2008 Issue of the Virginia Law Review:

Professor Darryl K. Brown’s response, The Multifarious Politics of Capital Punishment: A Response to Smith , suggests "that the politics of death are not quite as bleak as Smith believes them to be," and highlights "some significant developments in the moderation of capital punishment policy achieved through the democratic process" before closing with some thoughts regarding "the significance of the Court's recent forays into capital punishment regulation."

In Get in the Game or Get out of the Way: Fixing the Politics of Death, Professor Adam M. Gershowitz agrees with Professor Smith that "the Court has politicized the death penalty and in doing so inadvertently stymied reform efforts," but takes a less optimistic view of the Court's latest jurisprudence, instaed arguing, "If the Court desires to eliminate the arbitrariness of the death penalty, it needs to either take a major step forward or get out of the way so that the political actors can take responsibility."

Finally, in What's Wrong with Democracy? A Critique of "The Supreme Court and the Politics of Death", Professor Paul G. Cassell and District Attorney Joshua K. Marquis take issue with the need for judicial reform, arguing that "[c]apital punishment is a proper punishment in the American criminal justice system, whose popular support should not mark it for judicial undermining, but rather judicial support," and that "Professor Smith should be more trusting in the outcome of democratic processes."

Posted by LR_Virginia at 04:14 PM | Comments (0) | TrackBack

September 29, 2008

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

posted by Yale Law Journal

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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."

Posted by LR_Yale at 08:18 PM

September 16, 2008

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

posted by Yale Law Journal

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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."

Posted by LR_Yale at 12:48 PM

September 11, 2008

William & Mary Law Review, Issue 49:6 (May 2008)

posted by William & Mary Law Review
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Articles

Owen D. Jones & Sarah F. Brosnan, Law, Biology, and Property: A New Theory of the Endowment Effect

Stephen A. Saltzburg & Daniel J. Capra, The Unrecognized Right of Criminal Defendants to Admit Their Own Pretrial Statements

Jim Hawkins, Renting the Good Life

Timothy J. Holbrook, Extraterritoriality in U.S. Patent Law


Wren Cross Controversy

Gerard V. Bradley, Religion at a Public University

Erwin Chemerinsky, Why Church and State Should Be Separate


Notes

Jocelyn Kempema, Imitation is the Sincerest Form of ... Infringement?: Guitar Tabs, Fair Use and the Internet

Bin Wang, All Bark and No Bite: A Modern Evidentiary Argument for the Retirement of the Age-Old Pennsylvania Rule

Posted by LR_William-Mary at 12:49 PM | Comments (0) | TrackBack

September 09, 2008

Virginia Law Review In Brief

posted by Virginia Law Review

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In Brief, the online companion to the Virginia Law Review, recently published a discussion centered around Professor Melissa Murray's article The Networked Family: Reframing the Legal Understanding of Caregiving and Caregivers, published in the April 2008 Issue of the Virginia Law Review:

Professor Susan Frelich Appleton’s response, The Networked—Yet Still Hierarchical—Family, considers "what Murray’s call for recognition of caregiving networks might mean, first, for the traditional gender stereotypes that family law once embraced but now professes to reject and, then, for the issues of race and class that family law all too routinely ignores."

In Rights and Realities, Professor Laura A. Rosenbury supports Professor Murray's proposals "to the extent that they force reformers and scholars to confront who benefits and who is harmed by legal conceptions of the family, even ones that have been expanded to reflect functional approaches to the family," but fears "that Murray’s analysis may be held back by an assumption about the appropriate relationship between rights and reality often embraced by family law scholars including, at times, by Murray herself."

Finally, in Parents as Hubs, Professor Clare Huntington "wholeheartedly agree[s] with Professor Murray that the law should support families in providing care," and advances the conversation by engaging "with a central aspect of Professor Murray’s argument: the nature of the recognition she argues that the law should provide for nonparental caregivers." Professor Huntington goes on consider whether recognition should be "simply cognizance of and greater attention to the care provided by nonparents" or "direct legal protection of the relationship between a nonparental caregiver and a family."

Posted by LR_Virginia at 08:02 PM | Comments (1) | TrackBack

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

posted by Yale Law Journal

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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.

Posted by LR_Yale at 10:35 AM

September 02, 2008

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

posted by Yale Law Journal

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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.

Posted by LR_Yale at 09:29 AM

July 19, 2008

The Yale Law Journal Pocket Part: "Home Schooling" in California

posted by Yale Law Journal

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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.

Posted by LR_Yale at 08:54 AM | Comments (0) | TrackBack

July 11, 2008

UCLA Law Review Discourse

posted by UCLA Law Review

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56 UCLA Law Review Discourse (October 2008).

Articles
Gary Blasi, Lawyers, Clients, and the "Third Person in the Room", 56 UCLA L. Rev. Discourse 1 (2008).

Posted by LR_UCLA at 06:00 PM | Comments (0) | TrackBack

June 12, 2008

On the Colloquy: Antitrust, Mendelsohn, and More

posted by Northwestern University Law Review

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This week, the Northwestern University Law Review Colloquy published an Essay by Professor William H. Page and Mr. Seldon J. Childers that discusses the Microsoft-Samba agreement. This Essay is part of an ongoing colloquy started by Professor David S. Evans in an Essay discussing issues that the internet poses for antitrust law.

The Colloquy has also recently started a dialogue on the impact of the Supreme Court’s decision in Sprint/United Management Co. v. Mendelsohn. Professor Mitchell H. Rubinstein began this discussion in his Essay, and we look forward to continuing it this summer. Additionally, we continued our colloquy on climate change legislation with a piece by Professor Hari M. Osofsky.

Due to our emphasis on timely pieces, we have also recently published an Essay by Professor Richard L. Hasen debating the constitutionality of Congressional measures to reform presidential primaries. We also published a piece by Professor Amy J. Wildermuth arguing for an amendment to the Federal Rules of Civil Procedure in light of Bell Atlantic Court v. Twombly right before the May 1st deadline for the Supreme Court to announce Rules revisions. Professor Holning Lau also wrote an Essay analyzing the effect of globalization on human rights protections, with a focus upon homosexual rights, which includes commentary on the recent California decision to allow same-sex marriage.

Finally, the Colloquy also published interesting Essays by Professor Brian G. Slocum (hyperlink: ) analyzing contractionist statutory interpretations and Mr. Aaron R. Petty arguing that the unavailability requirement of the Sixth Amendment should be lowered in situations where there is forfeiture by wrongdoing.

For more, go to the Colloquy archives page, and remember to check back each week for new content.

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May 16, 2008

The Yale Law Journal Pocket Part: A Dialogue on Teaching the Constitution: A Reply to Ernest Young's "The Constitution Outside the Constitution"

posted by Yale Law Journal

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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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May 08, 2008

Southern California Law Review, 81:3 (March 2008)

posted by Southern California Law Review

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Southern California Law Review, 81:3 (March 2008)

Articles

Margaret H. Lemos, The Other Delegate: Judicially Administered Statutes and the Nondelegation Doctrine, 81 S. Cal. L. Rev. 405 (2008)

David Luban, On the Commander in Chief Power, 81 S. Cal. L. Rev. 477 (2008)

Notes

Padraic Foran, Unreasonably Wrong: The Supreme Court's Supremacy, the AEDPA Standard, and Carey v. Musladin, 81 S. Cal. L. Rev. 571 (2008)

Michael Moulton, Effecting the Impossible: An Argument Against Tax Strategy Patents, 81 S. Cal. L. Rev. 631 (2008)

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April 30, 2008

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

posted by Yale Law Journal

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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.

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April 28, 2008

April Responses

posted by University of Pennsylvania Law Review

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PENNumbra’s featured works are now available at www.pennumbra.com. This issue contains responses to two articles from the print edition of the Law Review.

John Gardner and R.A. Duff both respond to Michael S. Moore’s Causing, Aiding, and the Superfluity of Accomplice Liability. In his article, Professor Moore rejects the notion that a separate desert basis must be created for accomplice liability, by focusing on the actus reus of accomplice liability and asking “what does one have to do in order to be an accomplice to someone else’s crime?”

Professor Gardner, in his Response, Moore on Complicity and Causality, notes that, though he and Professor Moore agree “that causal wrongs exist,” they “part company [when they] turn to the question of which moral and legal wrongs are causal wrongs.” Gardner argues that “the wrongs of accomplices are all causal wrongs,” in that “aiding, abetting, and counseling are all straightforward ways of making a causal contribution to the wrongs that are aided, abetted, or counseled.” Gardner argues for a view of accomplice liability that incorporates “causal pluralism,” or that “causing something is not the only way of making a causal contribution” to an outcome. Human agency, Gardner asserts, involves a causal complexity that is “not visible to the experimental sciences,” and that this difference “explains both the significance and the importance of causal contributions that are distinguished, causally distinguished, with respect to their directedness and indirectedness.” He concludes that “the types of causal contributions made by accomplices to and through the acts of their principals vary” in ways that Moore’s account fails to provide for.

Professor Duff, in his Response, Is Accomplice Liability Superfluous?, explores the “third and fourth desert bases Moore identifies” and argues “that there is still some room for a distinctive doctrine of complicity and thus for accomplice liability as a distinctive type of liability.” Duff focuses on the mens rea of accomplice liability, specifically that of intentionality and foresight, and ultimately claims “that, even if all that Moore says about the actus reus is right, it does not warrant his conclusion” that there is no unique desert basis for accomplice liability.

Responding to Barak D. Richman’s Antitrust and Nonprofit Hospital Mergers: A Return to Basics, James F. Blumstein examines Professor Richman’s account under the two different “ways of thinking about the product and the industry – the traditional professional/scientific and the market-oriented model.” Professor Blumstein, in his Response, Antitrust Enforcement in the Health Care Industry: A Battleground of Competing Paradigms, describes the history of the struggle between these two paradigms, in the industry and in the courts, and how the “[a]pplication of the antitrust laws to the greater healthcare marketplace has . . . contributed toward a greater emphasis on the market-oriented paradigm,” leading to “push back in antitrust doctrine . . . in the context of judicial hostility to applying traditional antitrust orthodoxy to some components of health care.” Recognizing that the health care industry developed according to the professional/scientific model, Blumstein emphasizes Richman’s assertion that antitrust doctrine can play a “constructive role” in the context of hospital mergers, by “build[ing] accountability into an economic sector that has inadequate accountability mechanisms.” Blumstein concludes that “[a]ntitrust doctrine does not necessarily stand in the way of nonprofit hospitals that seek to merge, but it imposes an analytical metric that focuses on competition and efficiency.”

As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review's print edition articles.

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April 25, 2008

The Yale Law Journal Pocket Part: Congressional Ethics

posted by Yale Law Journal

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Congressional ethics scandals have appeared frequently on the front pages of newspapers for the last several years; in March 2008, the House of Representatives approved "one of the most significant changes to its ethics rules in decades, creating for the first time an independent panel empowered to initiate investigations of alleged misconduct by members of the chamber." This issue of The Pocket Part addresses a related proposal made last year in The Yale Law Journal by Josh Chafetz; Chafetz calls for "a new congressional oversight body, modeled on the British Parliamentary Commissioner for Standards."

In his Reply, Paul M. Thompson argues that Chafetz's proposal is unnecessary, and that the recent ethics scandals that have plagued Congress are signs that a system that is functioning well, rather than one that is in "disrepair." "Like the fever that accompanies a virus," Thompson argues, "they are a sign that our body politic can heal itself." Furthermore, according to Thompson, Chafetz's proposal would "replace a system that works with one that is redundant, at best, and prone to partisanship and gridlock, at worst."

Chafetz responds to Thompson's criticisms by arguing that Thompson's position relies on the inapplicable paradigm of criminal law as a model for ethics enforcement. Instead, Chafetz claims, "Congressional ethics is not simply about punishing rulebreakers; rather, it aims to promote public trust in Congress and its members." Under this framework, "it is clear not only that our current system is in shambles, but also that the creation of Congressional Commissioners would be a useful corrective."

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April 16, 2008

Yale Law Journal Pocket Part Call for Papers

posted by Yale Law Journal

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The Yale Law Journal Pocket Part is soliciting short essays and commentaries on the challenges and opportunities presented by the growth of sovereign wealth funds. We are seeking practitioner and scholarly perspectives on the legal, political, and institutional implications of foreign government investment in domestic and international corporations. We are also soliciting commentaries and essays related to the legal issues presented by virtual worlds and economies. Submissions may address, but need not be limited to, the overlap with and implications for real-world institutions. All accepted pieces will be published in two special symposia issues of the Pocket Part published this Fall.

Please visit www.thepocketpart.org for submissions guidelines. Sovereign wealth fund submissions are due June 27th and virtual world submissions are due August 25th.

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April 13, 2008

Virginia Law Review In Brief

posted by Virginia Law Review

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In Brief, the online companion to the Virginia Law Review, recently published a discussion centered around Professor Matthew T. Bodie's article Information and the Market for Union Representation, published in the March 2008 Issue of the Virginia Law Review:

Professor Catherine Fisk’s response worries that "[w]hile Professor Bodie does an admirable job of explaining why information matters, the process will not be significantly improved if an argument for more information is taken as an argument to protect the status quo of misleading and one-sided information."

In Rent-to-Own Unionism?, Professor Jeffrey M. Hirsch notes that "Bodie rightly decries the NLRB's failure to ensure that employees have access to the information needed to make a fully informed decision whether to unionize," but remains unconvinced "that the gains from a consumer approach to union elections are large enough to warrant the regulatory response it demands."

In Professor Harry G. Hutchinson's response, he identifies and addresses three shortcomings in Professor Bodie's proposal: "First, unions may resist disclosure initiatives unless they are paired with a card-check certification program, which defeats the goal of enabling workers to make rational decisions about union membership. Second, Bodie's conception of capture focuses on employer capture and ignores the problem of capture by outside interest groups aligned with union hierarchs. Finally, Bodie's mistaken conclusion that unions secure better conditions for workers leads to a faulty assessment of the problem of free riding."

To conclude the forum, in The Market for Union Services: Reframing the Debate, Professor Bodie writes "a brief reply to their efforts, in hopes that it is just the beginning of a much more extended conversation about the way we conceive of and regulate union representation." He focuses on the various policy implications of his proposal suggested by the other authors, specifically the effects of mandatory disclosure, card-check and neutrality agreements, and the idea that more information could lead to less union representation, before once again calling for continued discussion.

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April 09, 2008

Agricultural Animals and Animal Law

posted by Michigan Law Review

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The Michigan Law Review’s companion journal First Impressions this week published an online symposium on Agricultural Animals and Animal Law.

The largest meat recall in U.S. history this February catalyzed debate on the treatment of animals in agriculture. Video of agricultural workers forcing “downer” cattle to slaughter at a California meat packing facility prompted criminal sanctions in that case. On the other side of the country, the New Jersey Supreme Court will consider this term whether regulations promulgated pursuant to a law mandating humane treatment of farm animals go far enough. The regulations reportedly do not prohibit castrating male piglets without anesthesia, removing chicken beaks and turkey claws without painkillers, or confining veal calves and pregnant sows in cages small enough to restrict turning around.

In light of these controversies, the symposium contributors debate the extent to which animal protection laws should apply to the agricultural industry.

The extended post contains a more complete description of the symposium and links to the essays.

The Humane Society of the United States’ Vice President of Government Relations Nancy Perry and Senior Attorney Peter Brandt decry the inadequacy of USDA regulations in protecting animals from abuse. Highlighting the recent media coverage of abuse at the Hallmark Meat Packing plant in California, they argue that states should enforce their animal cruelty laws against the agricultural animal industry, and that protecting animals requires a new and robust federal framework.


University of Michigan Harry Burns Hutchins Professor of Law Joseph Vining identifies a particular advantage of criminal sanctions: that a corporation will regulate agricultural practices if it is liable as an entity itself. Corporations have methods and resources that public agencies lack, which will lead to better protections for farmed animals.


Angela J. Geiman, Senior Lawyer for Cargill Meat Solutions Corp, supports applying science-based regulations to the animal agriculture industry. She agrees with approaches that allow academic and industry experts to decide what the definition of a “humane” practice is.


Animal rights attorney and President of the Center for the Expansion of Fundamental Rights Steven M. Wise likens current agricultural animal practices to human slavery, arguing that economic interests that perpetuated the institution of slavery resemble the contemporary industry opposition to animal rights. He argues that animals have fundamental rights based on the practical autonomy that they possess as beings, rather than as things.


Professor Neil D. Hamilton, Director of the Agricultural Law Center at Drake Law School, suggests that litigation cannot address concerns about animal cruelty in agricultural settings. The divide between animal rights and animal welfare is a broader cultural phenomenon that a judicial decision cannot decide.


Colorado State University Professor of Philosophy, Animal Sciences and Biomedical Sciences Bernard Rollin catalogs five factors that demonstrate the necessity of shifting to a framework that recognizes animal rights. People now think of animals as having rights as a result of these five changes.


University of Michigan J.D. candidate Kyle H. Landis-Marinello demonstrates the severe harm that current agricultural animal practices cause the environment. He argues that enforcing animal cruelty laws in the agricultural animal industry will therefore yield significant environmental benefits.

To download a PDF of the entire symposium, feel free to click here.

Additional First Impressions content is available at http://www.michiganlawreview.org.

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April 02, 2008

The Yale Law Journal Pocket Part: State Legislatures

posted by Yale Law Journal

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This week, The Pocket Part presentes the second of two issues on recent developments in courts and legislatures. In this installment, we survey a variety of interesting trends among state legislatures.

First, Mitchell M. Gans, Bridget J. Crawford & Jonathan G. Blattmachr comment on new state laws that establish descendible rights of publicity. Authors argue that such laws may have unforeseen federal estate tax consequences. They propose revisions to the new laws to avoid an unintended tax bite for heirs.

Next, Kamal Ghali discusses a new internal procedural rule implemented by Georgia's state legislature. House Rule 11.8 gives the Speaker unprecedented legal power to control the function of legislative committees. Ghali argues that argues that Rule 11.8 is an abuse of the committee system, which should push legal scholars to theorize about the normative value of allowing such laissez-faire organization of our legislatures.

Christen Linke Young discusses a new trend among states interested in resource preservation to rely on tax incentives to encourage voluntary efforts. Young discusses key issues facing states contemplating such measures.

Finally, Jeffrey M. Hirsch argues for the elimination of state authority to regulate the workplace. Hirsch argues that scholars are overly optimistic about the ability of federalism to improve workplace regulation.
As with our last state law issue, you will find links to audio Podcasts of the Commentaries at the end of each piece. The Podcasts are in mp3 format for listening online or downloading into to protable audio players.

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March 28, 2008

The Yale Law Journal Pocket Part: Hybrid Situations

posted by Yale Law Journal

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In this issue, Murad Hussain discusses his recent Note, in which he proposes that the Free Exercise Clause doctrine of “hybrid situations” be used to encourage judicial recognition of group harms resulting from “governmental burdens upon religiously motivated exercises of secular constitutional rights.” Hussain argues that this strategy could be useful to American Muslims who bear the brunt of certain forms of counterterrorism profiling.

In response, Bernadette Meyler questions the immediate impact of the strategy, but notes that it could “eventually afford judges greater insight into the harms occasioned by the governmental action at issue and encourage them to weigh these in the balance against the national security interests that they invoke.” Frederick Mark Gedicks questions whether “hybrid rights” exist at all, and even if they did, why religious groups should be “more deserving of constitutional protection” than secular ones. R. Richard Banks, however, argues that Hussain does not go far enough, especially as his theory regards “the legitimate anxiety about the judicial role that may underlie courts’ disinclination to invalidate antiterrorism measures that impose group harms.” Hussain responds to each of these authors.

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March 27, 2008

March Responses

posted by University of Pennsylvania Law Review

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PENNumbra's featured works are now available at www.pennumbra.com.

Susan A. Bandes, Peter H. Huang, and Michael Stocker each respond to Dan M. Kahan’s Two Conceptions of Emotion in Risk Regulation, 156 U. Pa. L. Rev. 741 (2008).  In his article, Professor Kahan mainly examines two competing theories of risk perception, the “irrational weigher” theory and the “cultural evaluator theory.” Kahan prefers the latter theory, which suggests, in part, that “individuals are cognitively motivated to reject information about risk when they perceive that accepting it would threaten their defining group commitments.” He argues that “[t]o avoid this reaction . . . information about risks must be framed in a way that affirms rather than denigrates recipients’ cultural identities . . . .”

Professor Bandes, in her Response, Emotions, Values, and the Construction of Risk, notes that when dealing with emotions and public policymaking “[t]he challenge is to encourage the helpful emotions, and discourage, educate, or cabin the unhelpful ones.” She argues that “Values and the emotions that animate them should be assessed in light of our democratic aspirations” and concludes that the “process of defining and acting upon our collective values . . . is . . . essential to the working of participatory democracy . . . .”

Professor Huang, in his Response, Diverse Conceptions of Emotions in Risk Regulation, adds to Kahan’s analysis by focusing on the role that positive emotions can play in affecting risk perceptions. He acknowledges that fear is a strong motivating factor in risk perception, but argues that we should not ignore the influence of positive emotions “including courage and pride.” Professor Huang also emphasizes the problem of heterogeneity in the audience and warns that “no single model of emotions in risk perception can accurately describe all roles that all emotions play for all people, in all situations, during all times, facing all risks.”

Finally, Professor Stocker, in his Response, Some Questions About Emotions and Risk Evaluation, examines Kahan’s account of the rational weigher, irrational weigher, and cultural evaluator theories and probes for weakness in each theory’s treatment of emotion and risk evaluation. He observes that the challenge in capturing the relationship between emotion and risk results from the fact that “the social values expressed by . . . emotions are typically available only in outline.” He asks us, in conclusion, to consider just “how difficult it is . . . to give a ‘full and final’ account of what patriotism, love, being a good lawyer, etc., [really] requires . . . .”

As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review's print edition articles.

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March 18, 2008

The Yale Law Journal Pocket Part: State Courts

posted by Yale Law Journal

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This week, The Pocket Part presents the first of two issues on recent developments in state courts and legislatures. In this installment, we are honored to present Commentaries by two influential state jurists: Chief Justice Randall T. Shepard of the Indiana Supreme Court and Chief Justice Margaret H. Marshall of the Massachusetts Supreme Judicial Court.

Chief Justice Shepherd's Commentary discusses the leading role played by state courts in reforming the "crown jewel of America's legal system": the institution of the jury. Chief Justice Marshall's Commentary discusses recent administrative reforms aimed at delivering justice to litigants "promptly, and without delay," as mandated by the Massachusetts Constitution.

The Pocket Part is also proud to introduce an exciting new feature: The Yale Law Journal Podcast. In our first segment, Chief Justices Shepard and Marshall discuss emerging issues in state courts, as well as the academy's influence on state court decision-making. In addition, you will find links to audio Podcasts of the Justices' Commentaries at the end of each piece. The Podcasts are in mp3 format for listening online or downloading to portable audio players.

We hope that this new medium will further The Pocket Part's goal of expanding the reach of legal scholarship.

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March 07, 2008

Response: Setting the Bar Too High

posted by University of Pennsylvania Law Review

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PENNumbra's featured works are now available at the NEW AND IMPROVED www.pennumbra.com.

Frank I. Michelman responds to Youngjae Lee’s International Consensus as Persuasive Authority in the Eighth Amendment, 156 U. Pa. L. Rev. 63 (2007). 

Professor Michelman, in his Response, Setting the Bar Too High, critically examines Professor Lee’s attempt to establish “the negligible epistemic value . . . [of a] unanimous world-wide rejection of the death penalty for juveniles.” Professor Michelman supports Justice Kennedy’s reference in Roper v. Simmons to an international consensus against capital punishment for juveniles because while he admits that many countries “are surely not relevantly like-minded with us . . . some of them surely are.” Professor Michelman is confident that “the probability is strong that the number of the world’s relevantly like-minded societies . . . is large enough to sustain the instructiveness for us of the external world’s unanimous rejection of the juvenile death penalty.” Moreover, he argues that “however true it . . . is that any randomly selected country in the worldwide bunch ‘may’ think vastly differently than we do about the severity of death, . . . not a single one of them dissents from the flat rejection of death as a fitting punishment for juveniles.” Consequently, he concludes that “[t]he presumption of epistemic value in the face of worldwide unanimity holds.”

As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review's print edition articles.

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March 06, 2008

Response: Law and the Market: The Impact of Enforcement

posted by University of Pennsylvania Law Review

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PENNumbra's featured works are now available at the NEW AND IMPROVED www.pennumbra.com.

Howell E. Jackson responds to John C. Coffee, Jr.’s Law and the Market: The Impact of Enforcement, 156 U. Pa. L. Rev. 229 (2007).

Professor Jackson, in his Response, The Impact of Enforcement: A Reflection, seeks to tease out the “not inconsiderable challenges” scholars might face in attempting to confirm or rebut Professor Coffee’s core argument—“that higher levels of enforcement in the United States provide a genuine benefit to U.S. financial markets.” For example, Professor Jackson points out that when comparing regulatory efforts at the international level, it is difficult to know the extent to which “resources allocated to regulatory agencies . . . [may] serv[e] as sinecures for cronies of political elites or positions from which to extract bribes.” After considering a number of other problems that complicate the comparison process, Professor Jackson suggest two alternative approaches that might help overcome the complexities he identifies: 1) “focus on technical measures of financial performance;” and 2) “examin[e] the behavior of market participants.”

As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review's print edition articles.

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March 03, 2008

The Yale Law Journal Pocket Part: Natural Born Citizenship

posted by Yale Law Journal

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Last week, the usually obscure Natural-Born Citizen Clause of Article II of the Constitution became the subject of newfound media attention. As the New York Times reported, the candidacy of Sen. John McCain, born in the Panama Canal Zone, has revived a "musty debate": Is a person born abroad of American parents a "natural born Citizen" eligible to be president? As noted in the article, Jill Pryor, writing in the Yale Law Journal twenty years ago, examined this very issue.

Click here to read Jill A. Pryor, Note, The Natural-Born Citizen Clause and Presidential Eligibility: Resolving Two Hundred Years of Uncertainty, 97 Yale L.J. 881 (1988).

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February 26, 2008

On the Colloquy: Jurisdiction and Climate Change

posted by Northwestern University Law Review

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This week, the Northwestern University Law Review Colloquy published a response by Professor Scott Dodson regarding the Supreme Court's decision in Bowles v. Russell. He responded to critiques by Professor Elizabeth Chamblee Burch, Mr. E. King Poor, and Professor Perry Dane and defended his position that the Court disrupted prior precedent in Bowles. To see all of the pieces in the series, click here.

Last week, Professor Howard M. Wasserman responded to Professor Dodson's Article In Search of Removal Jurisdiction, 102 Nw. U. L. Rev. 55 (2008). His Essay examines the connections between jurisdiction, merits, and procedure, when the connections come into play, and how to separate them out.

On February 11, Professor Robert L. Glicksman participated in the ongoing debate on climate change legislation. He discussed which federal agencies should be responsible for implementing climate change regulation, the proper measure of discretion that Congress should afford these various agencies, and whether the regulation should trump state and local initiatives. To see all pieces in the series, click here.

For more, go to the Colloquy archives page, and remember to check back each week for new content.


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February 25, 2008

The Yale Law Journal Pocket Part: Antislavery Courts

posted by Yale Law Journal

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This week, the Yale Law Journal Pocket Part published a companion issue to Professor Martinez' Article, Antislavery Courts and the Dawn of International Human Rights Law. The Article discusses the complex history of international courts involved in the suppression of the transatlantic slave trade in the nineteenth century.

In this Pocket Part issue, Professor Martinez shares with readers digital images of some of the original court archives. Most of the courts’ decisions and a substantial part of the correspondence between the judges and the British government are summarized in the published British Parliamentary Papers. But the original, handwritten court records are housed at the United Kingdom National Archives outside London. These handwritten records give a more human sense of the courts’ operations, and their impact on individual lives.

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February 04, 2008

On the Colloquy: The Best of 2007, The Newest of 2008

posted by Northwestern University Law Review

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The Northwestern University Law Review Colloquy celebrated its first full year of publishing online content in 2007, and we look forward to publishing new pieces throughout 2008. Please be sure to check back weekly for new pieces.

Today, we published the most recent piece in our ongoing series concerning climate change legislation. You can view Professor Rose's piece here; and you can see all pieces related to climate change here. Keep an eye out in the coming weeks for more contributions to this topic.

We've also published more pieces in the past few weeks concerning temporal jurisdiction and the Supreme Court's decision in Bowles v. Russell. To see all of the pieces in that series, click here.

Continue reading for some of the highlights of the past year.

Ideological Drift of Supreme Court Justices

Professors Epstein et al. contributed an essay collecting empirical evidence of ideological drift among Supreme Court justices, in advance of their full-length publication in the Law Review. The essay drew a variety of responses, including a response from Linda Greenhouse of the New York Times. Click here for a list of all the posts in that series.

Originalism

In January 2007, Professors McGinnis and Rappaport wrote an essay entitled A Pragmatic Defense of Originalism. This sparked a spirited exchange, with contributions from Professors Leib, Law, and McGowan. Click here for all of the posts in that series.

Post-Kelo Reforms

Professors Dana and Somin debated the effect of post-Kelo reforms on the poor, especially considering the effect that such legislation would have on "blight" condemnation. Click here for a list of the posts in that exchange.

For a listing of all the debates we've hosted on the Colloquy, click here.

We have also hosted a number of excellent independent pieces in the last year, including Professor Reynold's piece on the constitutionality of Dick Cheney and Professor Bennett's timely piece on electoral vote reform in California. For more, check out our archives, and as always, check back each week for new content.

Posted by LR_NW at 09:00 AM | Comments (2) | TrackBack

February 02, 2008

The Pocket Part: 2007 Highlights

posted by Yale Law Journal

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The Pocket Part is bringing back some of our most popular and influential issues of the year. We chose three different issues that represent the diverse array of scholarship that The Pocket Part has published: White Collar Criminals, In Defense of Guantanamo, and Congressional Representation for Puerto Rico. Read below for an introduction to each issue.

We hope that you have enjoyed reading The Pocket Part in the past year, and we look forward to publishing new and interesting pieces in 2008.

White Collar Criminals

In a controversial essay, Ellen Podgor argues that the Federal Sentencing Guidelines for white collar crimes are too harsh. Fraud is not comparable to aiding terrorist organizations. Furthermore, white collar criminals are less likely to recidivate than other criminals. Finally, white collar criminals simply do not threaten our sense of security in the way that violent criminals do.

In response, Andrew Weissmann and Joshua A. Block attack Podgor's assertion that white collar criminals are severely punished. Although there are high profile outliers, the average white collar criminal does not serve jail sentences comparable to murders or terrorists. Furthermore, Podgor's suggestion that white collar criminals are more deserving of leniency is problematic and potentially discriminatory.

Ellen S. Podgor, Throwing Away the Key, 116 Yale L.J. Pocket Part 279 (2007), http://thepocketpart.org/2007/02/21/podgor.html.

Andrew Weissmann & Joshua A. Block, White-Collar Defendants and White-Collar Crimes, 116 Yale L.J. Pocket Part 286 (2007), http://thepocketpart.org/2007/02/21/weissmann_block.html.

In Defense of Guantanamo Bay

In this candid essay , former Chief Prosecutor of the Military Commissions, Morris Davis, gives a first hand account of the conditions on Guantanamo Bay. In particular, Colonel Davis defends the judicial procedures of the military commissions as both fair and transparent. Recently, Colonel Davis stepped down from his role as Chief Prosecutor after a public conflict with the Bush administration over these very issues.

Morris D. Davis, In Defense of Guantanamo Bay, 117 Yale L.J. Pocket Part 21 (2007), http://thepocketpart.org/2007/08/13/davis.html.

Congressional Representation for Puerto Rico

José R. Coleman Tió argues the current commonwealth relationship between the United States and Puerto Rico is insufficient to satisfy Puerto Rico's democratic aspirations. Coleman believes that Puerto Rico can and should be given congressional representation through federal legislation.

In response, Christina Duffy Burnett and John C. Fortier argue that Coleman cannot surmount the constitutional and normative challenges to his proposal. Taking a different perspective, Ezra Rosser argues that early treaties with Native American tribes provide historical examples of similar non-state congressional representation.

José R. Coleman Tió, Democracy, Not Statehood: The Case for Puerto Rican Congressmen, 116 Yale L.J. Pocket Part 397 (2007), http://thepocketpart.org/2007/05/19/coleman.html.

Christina Duffy Burnett, Two Puerto Rican Senators Stay Home, 116 Yale L.J. Pocket Part 408 (2007), http://thepocketpart.org/2007/05/19/burnett.html.

John C. Fortier, The Constitution Is Clear: Only States Vote in Congress, 116 Yale L.J. Pocket Part 403 (2007), http://thepocketpart.org/2007/05/19/fortier.html.

Ezra Rosser, Promises of Nonstate Representatives, 117 Yale L.J. Pocket Part 118 (2007), http://thepocketpart.org/2007/10/17/ rosser.html.

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January 30, 2008

January Responses

posted by University of Pennsylvania Law Review

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PENNumbra's featured works are now available at www.pennumbra.com.

Elizabeth M. Glazer provides a fourth response (following in the wake of Professors Fennell, Garnett, and Underkuffler) to Eduardo Moisés Peñalver and Sonia K. Katyal’s Property Outlaws, 155 U. Pa. L. Rev. 1095 (2007). 

Professor Glazer, in her Response, Rule by (Out)Law: Property’s Contingent Right to Exclude, attempts to explain why Peñalver and Katyal’s “property outlaws” so successfully violate property owners’ exclusion rights when the right to exclude is seen “as property law’s most important or defining right.” Professor Glazer concludes that “the outlaw tells us[] that an owner cannot invoke [the right to exclude] if she wishes to invoke it in isolation. . . .” She believes that the right to exclude is only absolute “so long as its exercise is coupled with the exercise of another right in the property bundle.”

Shyamkrishna Balganesh responds to Sara K. Stadler’s Copyright as Trade Regulation, 155 U. Pa. L. Rev. 899 (2007). 

Balganesh examines Professor Stadler’s argument that “the copyright grant be reformulated to consist of no more than an exclusive right to distribute works publicly.” He agrees that “copyright law ought to be visualized as a doctrine of unfair competition,” but offers an alternative conception of “implementing this ideal.” Balganesh writes, “Since copyright is about generating incentives for creation, we might want to connect [a competitive] nexus requirement to copyright’s instrumental purpose through a test of foreseeability. Given that liability for infringement is premised on a showing of copying, such a test would place the burden on the plaintiff to show that the defendant’s copying was in a market and of a form reasonably foreseeable when the work was created.”

As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review's print edition articles.

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Recent Proposals for Electoral College Reform

posted by Michigan Law Review

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The Michigan Law Review’s companion journal First Impressions today published an online symposium on Recent Proposals for Electoral College Reform.

Several proposals for changing the manner in which electoral votes are assigned have been increasingly debated since the 2008 presidential campaign began. Among these are recent suggestions that states assign their electoral votes based on the popular vote results in individual congressional districts or assign their electoral votes statewide based on the national popular vote. The symposium contributors explore the viability and advisability in today’s political climate of these and other Electoral College reform proposals.

The extended post contains a more complete description of the symposium and links to the essays.

Ohio State University’s Moritz College of Law Professor Daniel P. Tokaji argues that the thirty-five day period in which states can take advantage of the “safe harbor” provision under federal law offers insufficient time for the resolution of post-election disputes over electors. Professor Tokaji proposes a new timetable that would allow states more time to complete recount and contest proceedings in the event of close, contested elections—a change he feels is justified on both fairness and federalism grounds.


Sacramento-based election law attorney and former legal counsel for California Governor Arnold Schwarzenegger and the California Republican Party Thomas W. Hiltachk explains and defends his proposed statewide initiative that would change California’s winner-take-all system of awarding its fifty-five electoral votes to a system that arguably would make California more relevant to the election process. If the California initiative took effect, the state would award the presidential candidate winning the popular vote in each of the state’s congressional districts one electoral vote while awarding the winner of the state’s overall popular vote two electoral votes.


Washington, D.C.-based election law attorney and former Democratic campaign manager Sam Hirsch critiques Hiltachk’s proposed initiative, arguing that the congressional-district system increases the chances of the presidency being awarded to the second-place finisher in popular votes, is significantly biased to favor one political party, and is founded on the erroneous assumption that congressional-district lines are politically “neutral” and thus well suited to functions other than electing members of the U.S. House of Representatives.


University of Chicago Dean of Social Sciences John Mark Hansen examines the effects of the Electoral College system and the proposed reforms to it on the prospect of equal voice in elections, concluding that if every vote is to count equally, the only solution is to elect the president by direct popular vote.


University of California’s Hastings College of the Law Professor Ethan J. Leib and Hastings College of the Law J.D. Candidate Eli J. Mark critique three state-based reform systems—reforms granting electoral votes based on winning congressional districts, reforms granting electoral votes in proportion to the state’s popular vote, and reforms granting all of a state’s electoral votes to the nationwide popular vote winner—and note the effects of partisan principles on defenses and critiques of them.


Massachusetts Institute of Technology Visiting Scholar Alexander S. Belenky discusses instituting direct popular election of the president as well as the National Popular Vote interstate compact but also evaluates a third option that makes the nationwide popular vote a decisive factor in electing a president but retains the Electoral College as a safeguard against failure to elect a president.


University of Michigan J.D. candidate Daniel Rathbun contends both legal and sociological theory can explain the National Popular Vote compact’s failure to take hold. Legally, Rathbun argues, the NPV overlooks significant constitutional and practical-institutional obstacles. Sociologically, he contends, the NPV is structurally incapable of dis-embedding the federalist theory underlying the Electoral College.

To download a PDF of the entire symposium, feel free to click here.

Additional First Impressions content is available at http://www.michiganlawreview.org.

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January 26, 2008

Baze-d and Confused: What's the Deal with Lethal Injection?

posted by University of Pennsylvania Law Review

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PENNumbra's featured works are now available at www.pennumbra.com.

The Supreme Court recently heard oral arguments in the case of Baze v. Rees, which asks the Justices to examine the constitutionality of Kentucky’s lethal injection methodology. In this latest PENNumbra Debate Professors Alison J. Nathan, of Fordham University, and Douglas A. Berman, of The Ohio State University, tease out the legal, political, and practical issues that the Court faces as it addresses Baze.

In her Opening, Professor Nathan critiques the irrationality of the three-formula lethal injection procedure used by Kentucky and many other states. Professor Nathan writes that “lethal injection as pervasively practiced in the United States today is the result of a historical accident, not scientifically informed deliberation.” She contends that the sort of democratic reform that has been the catalyst for legislative changes in execution procedures in the past has been stymied by “lethal injection’s peculiar history, attendant secrecy, and protocol involving the use of [a] pain-masking paralytic drug.” She concludes by arguing that “[i]n this context of non-transparency, it is distinctly the role and responsibility of the judiciary, led by the Supreme Court, to scrutinize the practice of lethal injection and its history.”

Professor Berman agrees that “the development and administration of lethal injection protocols have been haphazard and sloppy.” However, his concern is principally focused on why the lack of a democratic reform movement has failed to raise the consciousness of the nation. He contends that “three critical practical and political realities” explain the absence of a national backlash: in sum, 1) no human-administered death penalty system can be perfect; 2) few Americans care to make a perfect system; and 3) most Americans are “blissfully ignorant” of any such “imperfections.” Through his “realpolitik” lenses, Professor Berman remains skeptical that the Justices will be able to rise above “the broader practical and political realities that surround the modern administration of capital punishment [and help] ensure that the machinations of death . . . persist.”

As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review's print edition articles.

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January 22, 2008

See Also Forum Discussion: Medical Autonomy and the Constitution

posted by Texas Law Review

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See Also Forum Discussion: Medical Autonomy and the Constitution


ARTICLE
The Constitutional Right to Make Medical Treatment Decisions: A Tale of Two Doctrines by B. Jessie Hill
In her article, Professor Hill discusses the fractured state of the Supreme Court’s jurisprudence on whether individuals have a right to make autonomous medical treatment choices. She ultimately concludes “that a constitutional right to protect one’s health should be consistently recognized; that the recognition of this right should not be artificially limited by excessive deference to legislative findings of medical fact; and that this right will have to be carefully balanced against the state’s real and legitimate interest in regulating the practice of medicine to protect the public.”

RESPONSES
Necessity, Not Autonomy by Mark S. Stein
In his response to the article, Mark Stein argues for a somewhat different framing of the substantive-due-process right advocated by Professor Hill.

A View from the Trenches by J. Scott Ballenger
In his response, Scott Ballenger discusses issues of medical autonomy in light of his experience as counsel for the Abigail Alliance.

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January 07, 2008

Responses to Property Outlaws

posted by University of Pennsylvania Law Review

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PENNumbra's featured works are now available at www.pennumbra.com.

Lee Anne Fennell, Nicole Stelle Garnett, and Laura S. Underkuffler each respond to Eduardo Moisés Peñalver and Sonia K. Katyal’s Property Outlaws, 155 U. Pa. L. Rev. 1095 (2007).  In their article, Professors Peñalver and Katyal argue that the violation of property laws (by actors they call “property outlaws”) can enhance the social order. In their view, “the apparent stability and order that property law provides owe much to the destabilizing role of the lawbreaker, who occasionally forces shifts of entitlements and laws.”

Professor Fennell, in her Response, Order with Outlaws?, notes that “most property violations destabilize the social order without producing any significant offsetting benefits.” She argues that in order to maximize the “informational signal that [a property] violation sends,” liability rules, injunctive relief, and supercompensatory penalties can help to “harness the information generated by lawbreakers.”

Professor Garnett, in her Response, Property In-Laws, is skeptical of Peñalver and Katyal’s claim that property outlaws provide beneficial and necessary “shocks” to a system that “has a . . . tendency to become ossified and out of date.” Instead, her intuition is that “outlaws usually respond to instability in a property regime, not the ossified hyper-stability that Peñalver and Katyal fear.” Thus, she suspects that “the evolutionary sequence [of property law] generally proceeds from instability to stability, not from bad stability to instability to good stability as [Peñalver and Katyal] suggest.”

Finally, Professor Underkuffler, in her Response, Lessons from Outlaws, agrees with Peñalver and Katyal that, in a system which disfavors property violations, it is critical to “distinguish positive or desirable property lawbreaking from that which is not.” However, Professor Underkuffler does not believe that relying on efficiency and rectification analyses always provides the correct answer. She wonders whether the true reason for our tolerance of property outlaws is “because the lawbreakers are the losers under the existing regime of property and entitlements, while the targeted owners are winners under the same regime.”

As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review's print edition articles.

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January 03, 2008

Debate: Collaberative Environmental Law

posted by University of Pennsylvania Law Review

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Professors Eric W. Orts, of Penn's Wharton School, and Cary Coglianese, of Penn's Law School, discuss the benefits and disadvantages of collaborative public policy decision making in the environmental context.

Professor Orts argues that it is time to embrace a different policymaking approach—that of collaborative environmental lawmaking. Professor Orts's skepticism of the independence of political and other governmental actors in a world in which “lobbyists and campaign financiers . . . play large and often decisive roles in th[e public policymaking] process” leads him to conclude that “in many situations, it makes better sense to trust less in the traditional centralized process of environmental lawmaking and to consider more frequently the alternative of engaging in collaborative environmental law.”

Professor Coglianese responds that collaborative environmental law is “not at all feasible for making real-world decisions about major environmental problems,” and that this policymaking approach “introduces new types of predictable and serious problems.” Professor Coglianese contends that, by making agreement the primary aim of policymaking, collaborative environmental law actually conveys a willingness to give in to interested parties in pursuit of the “holy grail” of consensus. Instead, Professor Coglianese urges that public “engagement should be used with another goal in mind . . . mak[ing] the best possible decision [to] . . . best advance[] the overall public interest.”

As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review's print edition articles.

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December 23, 2007

Yale Law Journal Pocket Part: The New Voting Rights Act

posted by Yale Law Journal

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This week The Pocket Part is publishing the first of two issues discussing Nathaniel Persily’s article, The Promise and Pitfalls of the New Voting Rights Act. In this issue, we present Professor Persily’s summary of his article with responses by Ellen Katz and Richard Pildes.

A forthcoming issue will feature additional responses to Professor Persily’s article. In addition, Professor Persily will respond to the comments on his article and discuss issues raised in a pending constitutional challenge to section 5 of the VRA.

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December 04, 2007

Yale Law Journal Pocket Part: A Toast to Free Flow of Liquor Across State Borders

posted by Yale Law Journal

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This week, the Yale Law Journal Pocket Part published a Commentary on the purposes and interpretation of the Twenty-First Amendment. In Uncorking a Seventy-Four-Year-Old Bottle: A Toast to the Free Flow of Liquor Across State Borders, Ethan Davis argues that state laws designed to shield in-state producers, wholesalers, and retailers from out-of-state competition conflict with the original intent of the Twenty-First Amendment.

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November 30, 2007

Responses: Plea bargaining

posted by University of Pennsylvania Law Review

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PENNumbra's featured November responses are now available at www.pennumbra.com.

This month, Frank O. Bowman, III, Michael M. O'Hear, and Daniel Richman each respond to Ronald F. Wright's article, Trial Distortion and the End of Innocence in Federal Criminal Justice, 154 U. Pa. L. Rev. 79 (2005). In his article, Professor Wright addresses the challenges to the judicial system from the rise of plea bargaining rates in the United States. He argues that reform is best accomplished through a “mid-level” regulatory strategy—what he calls the “trial distortion theory”—that neither condemns nor endorses the plea bargaining process, but asks if pleas are distorting the pattern of outcomes that would result from a “healthy” system in which trials were the norm.

Professor Bowman, in his Response, American Buffalo: Vanishing Acquittals and the Gradual Extinction of the Federal Criminal Trial Lawyer, picks up on one of Professor Wright's key findings: “the curious fact that the rate of acquittals in federal criminal cases has declined even faster than the rate of guilty pleas has increased.” Professor Bowman goes on to suggest that “acquittals may be vanishing in part because a once-common courtroom denizen—the true trial lawyer—is becoming an endangered species,” and worries that the system has created “ever-greater disincentives to trying the kind of cases in which acquittal is a live possibility.”

Professor O'Hear, in his response, What's Good About Trials?, questions whether trial distortion represents a significant problem. Professor O'Hear believes our main focus should be on “mak[ing] plea bargaining processes look more like trial processes.” According to Professor O'Hear, “The trick is to find ways of injecting the values of voice, neutrality, and respect into the plea bargaining process without robbing plea bargaining of its efficiency advantages over the trial process.”

Finally, Professor Richman, in his Response, Judging Untried Cases, applauds Professor Wright for attempting to determine whether “the inexorable reduction in trials actually reflects an impairment of the federal criminal system's truth-finding function.” However, he notes that Professor Wright overlooked one important factor in his analysis: the extent to which “the vanishing acquittal rate reflects an increase in the [federal] adoption of well-established ‘local’ cases.” Without more information, Professor Richman concludes, “aggregrate caseload statistics are . . . hard to interpret.”

As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review's print edition articles.

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November 27, 2007

Debate: Voter ID: What's at Stake?

posted by University of Pennsylvania Law Review

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PENNumbra's featured works of November are now available at www.pennumbra.com.

As Lyle Denniston wrote earlier this fall on SCOTUSblog.com, “[f]ew cases the [Supreme] Court might have agreed to hear w[ill] be likely to have as much real-world political impact as the newly granted case[] of Crawford v. Marion County Election Board . . . , involving an Indiana voting requirement law that is said to be among the most demanding in the nation.” (see Analysis: An Election Issue for an Election Year.) Before the Justices themselves have an opportunity to delve into the case, Professors Bradley A. Smith, of Capital University Law School, and Edward B. Foley, of The Ohio State University, debate the major legal, political, and philosophical issues behind the controversial matter of voter ID in Voter ID: What's at Stake?

As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review's print edition articles.

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November 18, 2007

Pay-to-Stay Programs in Correctional Facilities

posted by Michigan Law Review

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The Michigan Law Review’s companion journal First Impressions today published an online symposium on Pay-to-Stay Programs in Correctional Facilities.

Approximately fifteen California jails have implemented pay-to-stay programs. These programs allow some offenders to pay a daily fee in order to serve their sentences in a city-run or privately-managed correctional facility rather than in a county jail. In some programs, benefits include assignment to a private cell with a regular door, separation from violent offenders, access to the jail’s movie collection, and the ability to carry an iPod or cell phone. The symposium contributors consider the implications of these pay-to-stay programs.

The extended post contains a more complete description of the symposium as well as links to the essays.

Stanford Law School Professor and Stanford Criminal Justice Center Director Robert S. Weisberg argues that pay-to-stay, if it is honestly represented, could prove salutary for the criminal justice system if recognized as part of our somewhat ritualized cycle of constructive self-embarrassment over the role of wealth in criminal justice. He contends that, by increasing public awareness about incarceration costs, pay-to-stay may lead politicians to become more willing to treat criminal punishment as a regulatory system worthy of cost-benefit analysis rather than a deontological necessity.

USC Gould School of Law Professor Kim Shayo Buchanan unpacks the gendered racial stereotypes that accompany pay-to-stay programs. She explores how the government publicizes pay-to-stay programs for wealthier lawbreakers (generally perceived as white drunk drivers) while confining tens of thousands of others in dangerous, squalid conditions.

Loyola Law School Los Angeles Professor Laurie L. Levenson and Loyola Los Angeles J.D. candidate Mary Gordon identify five truths implicit in the influence of money in the criminal justice system that explain why—despite pay-to-stay’s superficial appeal—we must look deeper to rehabilitate our ailing criminal justice system.

Santa Ana Chief of Police Paul M. Walters and Jail Administrator Russell Davis explain how the City of Santa Ana’s Pay-to-Stay Program fits into the City’s entrepreneurial innovations relating to its new jail. They argue that these innovations, including pay-to-stay and contract housing, have enabled the city to meet the incarceration needs of the Police Department without incurring exorbitant operational costs.

Los Angeles criminal defense attorney and chief legal correspondent for the E! Network Shawn Chapman Holley asserts that pay-to-stay is a bad idea for defendants and that the county jail is actually a wiser choice for most defendants.

University of Michigan J.D. candidate Bradley W. Moore contends that pay-to-stay jails show that the state cannot balance the competing concerns of the traditional theories of punishment—deterrence and retribution—under its current rubric. He proposes that virtue ethics instead be used to assess whether a criminal justice reform such as pay-to-stay should be adopted.

To download a PDF of the entire symposium, feel free to click here.

Additional First Impressions and Michigan Law Review content is available at www.michiganlawreview.org.

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November 16, 2007

Yale Law Journal Pocket Part: The Supreme Court and Comedy

posted by Yale Law Journal

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This week, the Yale Law Journal Pocket Part published an update to Professor Wexler's study on the funniness of Supreme Court Justices. Two years ago, Professor Wexler analyzed the frequency with which each Justice caused courtroom laughter. In Laugh Track II: Still Laughin'!, Professor Wexler examines how recent changes in personnel have altered the comedic balance of the Court.

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November 14, 2007

Announcing Postscript, the Online Companion to the Southern California Law Review

posted by Southern California Law Review

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The Southern California Law Review is pleased to announce the launch of its new online companion, Postscript. Other top law schools have added online companions, and the Law Review finds these new mediums to be a developing and important component of legal scholarship. Postscript permits us to publish a wider variety of material than we can accommodate in our printed journal. Postscript is intended to enhance legal scholarship by providing a forum where academics, practitioners, and students can respond to articles published in the Law Review and to recent legal developments in a concise and expedited format.

Postscript invites two categories of submissions. First, Postscript publishes responses to articles published in the Law Review. Second, Postscript publishes commentaries on legal developments and significant court decisions. We issue topic prompts for commentaries. In addition, authors are free to submit commentaries on other topics.

Postscript utilizes a more expedited production process than the Law Review. Thus, we encourage responses and commentaries under 3,000 words and lightly footnoted. Academics, judges, practitioners, and students are free to submit pieces of original scholarship to Postscript.

For more information, please visit our website. For comments or suggestions, please e-mail postscript@law.usc.edu. We invite and look forward to your participation in Postscript.

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November 09, 2007

October in The Pocket Part

posted by Yale Law Journal

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This October, The Yale Law Journal Pocket Part published a variety of articles. To access the following pieces, click on the links below, or find them on our Most Recent tab online at www.thepocketpart.org.


The Capabilities Approach and Ethical Cosmopolitanism: A Response to Noah Feldman

In response to Professor Noah Feldman’s book review, Cosmopolitan Law?, Professor Martha C. Nussbaum distinguishes her political theory, the capabilities approach, from the ethical doctrine of cosmopolitanism. Furthermore, Professor Nussbaum clarifies the relationship between her theory and that of Rawls, Pogee, and Beitz.

Promises of Nonstate Representatives

In response to Jose Coleman Tio’s Comment, Six Puerto Rican Congressmen Go to Washington, Ezra Rosser offers a unique historical perspective on the question of nonstate representatives. In this article, Rosser argues that early treaties with Native American tribes suggests that statehood was not understood by the framers to be a necessary requirement for representation in Congress.

Interbranch Communication: A Note on “Article III En Banc”

In response to Jacob Scott’s Comment, Article III En Banc: The Judicial Conference as an Advisory Intercircuit Court of Appeals, Robert A. Katzmann and Russell R. Wheeler present a detailed look at the Governance Institute. The Governance Institute is a small Washington D.C. think tank dedicated to increasing communication between courts and Congress. In this Commentary, Judge Katzmann and Dr. Wheeler examine the origins of the project and its recent efforts at improving statutory drafting.

Symposium: Intellectual Property as Propery

In this Symposium, Professor Henry E. Smith presents his recent Journal article, Intellectual Property as Property. Professor Smith argues that intellectual property resembles property in its modularity. That is, intellectual property relies on information-cost savings strategies for delineating entitlements that are characteristic of property.

In his response, Why Modularity Does Not (and Should Not) Explain Intellectual Property, Professor Michael A. Carrier argues that the modularity model cannot account many defining features of intellectual property. Therefore, modularity cannot replace dominant paradigms of intellectual property.

In contrast, Professor F. Scott Kieff argues that modularity does not go far enough. In, On Coordinating Transactions in Intellectual Property: A Response to Smith’s Delineating Entitlements in Information, Professor Kieff articulates three additional benefits of treating intellectual property as property.

Protecting National Security or Covering Up Malfeasance: The Modern State Secrets Privilege and Its Alternatives

In recent challenges to the National Security Agency (NSA) surveillance program, the United States government has repeatedly asserted the state secrets privilege. In this Commentary, Nicole Hallett argues that the absolute state secrets privilege is outdated. The United States should follow our democratic allies, who have adopted a privilege that balances national security with the public interest in the adjudication of constitutional claims.

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October 31, 2007

Response: Just Following Orders

posted by University of Pennsylvania Law Review

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PENNumbra's featured works of October are now available at www.pennumbra.com.

The latest featured October Response on PENNumbra is Just Following Orders, by Roderick M. Hills, Jr. It is an analysis of Norman R. Williams's 2006 article, Executive Review in the Fragmented Executive: State Constitutionalism and Same-Sex Marriage. Professor Hills praises Professor Williams for recognizing that “whatever the merits of [the departmentalist and judicial supremacist] positions as interpretations of the U.S. Constitution, both are hopelessly unpersuasive when applied to state constitutions.” He then examines Professor Williams's defense of “a third method—‘the legislative model’—for determining when agencies should just follow orders from the legislature.” However, he ultimately concludes that “Professor Williams's theory ignores the facts about democratic accountability and expertise that most of us would regard as critical,” and argues that “this gap suggests a problem with his theory”—a gap that Professor Hills hopes Professor Williams fills in his next examination of executive review.

As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review's print edition articles.

Posted by LR_Penn at 09:47 AM | Comments (0) | TrackBack

October 27, 2007

Responses: The Disability Integration Presumption

posted by University of Pennsylvania Law Review

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PENNumbra's featured works of October are now available at www.pennumbra.com.

As the legal wrangling over the cost of disability education rages on, Professors Samuel R. Bagenstos and Mark C. Weber each provide unique responses to Professor Ruth Colker's 2006 article, The Disability Integration Presumption: Thirty Years Later.

Professor Bagenstos writes in Abolish the Integration Presumption? Not Yet, that while Professor Colker's arguments are compelling, “[h]er article fails to establish that the IDEA's individualized integration presumption imposes significant costs, and . . . downplay[s] significant benefits of that presumption.” He concludes that the “supposed failure[s] of integration . . . reflect [more on] the education system's refusal to provide true integration” than on the presumption's validity.

Professor Weber, in A Nuanced Approach to the Disability Integration Presumption, applauds Professor Colker for attempting to look at the integration presumption in a new way, but worries that her stance on the presumption is misplaced. Rather than abandoning the presumption, Professor Weber argues that integration can work well as long as educators focus on “which services and protections are being offered to educate a child within general education. . . . The way to equality is to provide extra services, technology, and accommodations in regular classes so that the children with disabilities do not fall behind.”

As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review's print edition articles.

Posted by LR_Penn at 02:31 PM | Comments (1) | TrackBack

October 24, 2007

Debate: Can Handguns Be Effectively Regulated?

posted by University of Pennsylvania Law Review

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PENNumbra's featured works of October are now available at www.pennumbra.com.

Recent reports on crime statistics published by the FBI show that violent crime has increased for the second straight year across the nation. In particular, the FBI's reports demonstrate that in major metropolitan areas, such as Philadelphia, homicides have increased by 6.7%.

In the midst of this upsurge in violent crime, Professors James B. Jacobs, of New York University, and David Kairys, of Temple University, reengage with America's long-running debate over the effectiveness of gun (specifically handgun) control regulation, in their debate, Can Handguns Be Effectively Regulated?

Both Professor Jacobs and Professor Kairys agree that the debate on handgun control "at its core is [related to] a personal, cultural, and political identification of guns with personal self-worth . . . , freedom, liberty, and . . . God and country." Whereas Professor Jacobs accepts this as a political reality and uses it as an anchor from which to engage in this discussion, Professor Kairys steadfastly disagrees: "The best hope for emerging from our disgraceful state of denial is to respectfully engage and challenge the cultural and political identification of guns with our nation's highest ideals and the deadly legacy of that identification as it is currently conceived."

As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review's print edition articles.

Posted by LR_Penn at 02:30 AM | Comments (0) | TrackBack

October 20, 2007

Call For Papers: State Law

posted by Yale Law Journal

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Call for Papers: State Law

The Yale Law Journal Pocket Part is soliciting commentaries for two end-of-year issues: one issue will focus on new developments in state courts, and the other will focus on new developments in state legislatures. Our goal is to bring critical focus to an area of lawmaking that deserves greater attention in the legal literature, and we invite you to submit a commentary on a state law topic of your choosing.

Commentaries may explore a legal development at the state level that has not been extensively reviewed in legal scholarship and the popular press, or present a novel argument on a timely issue that has received attention.

Submissions should be no more than 1,500 words. 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 for both issues is Friday, November 2, 2007.

www.thepocketpart.org

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October 16, 2007

The Supreme Court, the Federal Circuit, and Patent Law

posted by Michigan Law Review

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The Michigan Law Review’s companion journal First Impressions today published an online symposium on the Supreme Court, the Federal Circuit, and Patent Law. The symposium takes place against a backdrop of three recent Supreme Court decisions affecting patent law—KSR v. Teleflex, Microsoft v. AT&T, and eBay v. MercExchange.

A diverse group of authors considers whether these cases together represent, as some commentators have suggested, a recent upheaval in patent law and a modified relationship between the Federal Circuit and the Supreme Court. The extended post contains a more complete description of the symposium as well as links to the essays.

University of Michigan Law Professor Rebecca S. Eisenberg contends that the Federal Circuit’s control over patent law remains little diminished by the Court’s recent foray into the patent jurisprudence and argues that the most significant impact of KSR may be to embolden the U.S. Patent and Trademark Office to reject more patent applications for obviousness without fear of reversal.

George Washington University Law Professor John F. Duffy argues that the Supreme Court’s reform of patent law substance and procedure was predictable and that KSR’s importance derives from the fact that it highlights many separate trends that are reshaping the patent system.

Patent litigator Harold C. Wegner believes that the Microsoft case revealed the balkanized nature of the Federal Circuit and that KSR, through which the Supreme Court created a unified message, will therefore be crucial to the Federal Circuit under future Chief Judge Randal Rader.

Senior Vice President and General Counsel for Eli Lilly & Co. Robert A. Armitage proposes that Congress adopt the National Academy of Sciences’ recommendations for reforming patent law rather than pursuing “anti-troll” objectives and simultaneously defends the judiciary’s successful track record of responding to common criticisms of anti-trolls without legislative intervention.

Patent litigators Stephen G. Kunin and Andrew K. Beverina explain KSR’s effect on patent law and outline lessons that it suggests for patent prosecution and litigation.

To download a PDF of the entire symposium, please click here.

Additional First Impressions content is available at www.michiganlawreview.org.

Posted by LR_Michigan at 05:29 PM | Comments (0) | TrackBack

September 25, 2007

September Responses

posted by University of Pennsylvania Law Review

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PENNumbra has recently featured a number of excellent new responses to several of the Penn Law Review's print edition articles:

Benjamin C. Zipursky, in Evidence, Unfairness, and Market-Share Liability: A Comment on Geistfeld, responds to Mark A. Geistfeld's The Doctrinal Unity of Alternative Liability and Market-Share Liability, arguing that the proposals in Geistfeld's “provocative and insightful” article may be too far-reaching, and specifically contending that Geistfeld's “arguments made from a normative point of view for the principle of evidential grouping are unsound.”

David D. Meyer, in The Geography of Family Privacy, responds to Laura A. Rosenbury's Between Home and School, praising Rosenbury for “calling attention to the lack of scholarship addressing the childrearing that takes place” outside of the home and school environs, but noting that he remains unconvinced that it wouldn't be better to use location “not as an organizing principle, but as a more indeterminate factor in calibrating the strength of justification required of the state for any intervention in childrearing.”

Paul E. McGreal, in In Defense of Complete Preemption, responds to both Gil Seinfeld's The Puzzle of Complete Preemption and Trevor W. Morrison's response to Seinfeld, Complete Preemption and the Separation of Powers, arguing that both Geistfeld and Morrison fail to fully conceptualize the well-pleaded complaint rule and asserting that “the complete preemption doctrine and the bar on pleading anticipated defenses are simply two sides of the well-pleaded complaint coin.”

As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review's print edition articles, including Issue 6 of Vol. 155—the Symposium Issue, featuring the culmination of the conversation that began last November when the Penn Law Review held a Symposium on the topic, “Responses to Global Warming: The Law, Economics, and Science of Climate Change.”

Scholars interested in participating in a debate on PENNumbra, or in writing a response to any print edition article, PENNumbra debate, or previous PENNumbra response should send an email to online@pennumbra.con.

Posted by LR_Penn at 07:54 PM | Comments (0) | TrackBack

September 18, 2007

Debate: Consumer-Driven Health Care

posted by University of Pennsylvania Law Review

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PENNumbra has recently published this debate between Professor Kristin Madison of the University of Pennsylvania and Professor Peter Jacobson of the University of Michigan:

You won’t hear many health experts claim that the American healthcare system is functioning perfectly in terms of core considerations such as cost, access, and quality. The question that arises with the advent of any new policy approach seeking to improve the system is obvious: Does the change represent a step forward or backward? Professors Kristin Madison, of Penn, and Peter Jacobson, of the University of Michigan, take up this question in regard to the latest innovation in health care policy—consumer-directed healthcare (CDHC).

Professor Madison argues that while CDHC is not a panacea, “[e]ven if its shortcomings prevent its full diffusion through the American health care system, CDHC will still . . . help[] to establish a foundation for future reforms in health care finance and delivery, [and] has the potential to improve the health care system in the long run.” Professor Jacobson’s response? “CDHC is a direct attack on the idea that health care differs from other market commodities because of its moral aspirations . . . . For those who believe that equity should be a fundamental attribute of health care delivery, CDHC represents a huge step backwards.” Nonetheless, Professor Madison is convinced that CDHC will be a lightning rod that stirs the American health care system out of its complacency and “forces us to confront the tradeoffs inherent in any health care system in a resource-constrained world.“ Professor Jacobson is not content to wait and see how the American public reacts to CDHC: “If the policy focus is on CDHC, equity will be subordinated. If universal coverage dominates, CDHC proponents are probably right that cost and quality issues will be subordinate. For me, it’s an easy choice—helping those without insurance to have a minimal acceptable level of care.”

Read the whole debate.

Posted by LR_Penn at 01:09 PM | Comments (0) | TrackBack

June 04, 2007

The Lost Promise of Civil Rights

posted by Virginia Law Review

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The Lost Promise of Civil Rights. By Risa L. Goluboff. Cambridge, Mass.: Harvard University Press. 2007.

In Brief, the online companion to the Virginia Law Review, today posted a book excerpt from The Lost Promise of Civil Rights, by Virginia Law Professor Risa L. Goluboff.

Professor Goluboff argues that Brown v. Board of Education left “much of Jim Crow . . . unchallenged.” This resulted from “lawyers’ strategic litigation choices about which cases to pursue and which to avoid, which harms to emphasize and which to ignore, which constituencies to address and which to disregard.” Professor Goluboff thus “suggests that by uncovering historical alternatives to the civil rights law we know as our own, we can broaden our imagination about the possibilities for addressing the remnants of Jim Crow still facing the nation today.”

The book, published recently by Harvard University Press, has already received significant acclaim. Harvard Law Professor Mark Tushnet writes that The Lost Promise of Civil Rights “offers readers a brilliant reconceptualization of civil rights litigation.” Penn History Professor Thomas Sugrue calls the book “original, provocative, and persuasive.”

Professor Goluboff’s book will also be the subject of a Book Review by NYU Professor Derrick Bell in Volume 94 of the Virginia Law Review. The Book Review is scheduled to run in March 2008.

The excerpt is available on the In Brief site. [PDF]

Posted by LR_Virginia at 09:41 PM | Comments (0) | TrackBack

May 23, 2007

Symposium on Televising the Supreme Court

posted by Michigan Law Review

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The Michigan Law Review’s companion journal First Impressions today published an online symposium discussing the televising of Supreme Court proceedings. The symposium takes place against a backdrop provided by legislation pending in the House and Senate that would require the Supreme Court to televise its proceedings.

A diverse group of authors explores the implications of the prospective legislation and considers potential risks and benefits of televising the Court’s proceedings. The extended post contains a more complete description of the symposium as well as the full text of the essays.

The Honorable Boyce F. Martin, Jr. of the U.S. Court of Appeals for the Sixth Circuit contends that televising Supreme Court proceedings would help educate Americans about how their government works and heighten awareness of important legal issues.

University of Michigan Law Professor Christina B. Whitman argues that televising Supreme Court proceedings would mislead viewers by only randomly telling them something useful about the Court and is unnecessary because the Court is already more open than the government’s other branches.

Supreme Court Correspondent for the Legal Times Tony Mauro believes that Senator Specter’s legislation is worthwhile but contends the bill would have greater appeal if Senator Specter changed the focus of his efforts to see it enacted. Specter, he argues, should emphasize the benefits of televising to the public’s right to know rather than justifying the legislation as punishment for the Justices’ questioning of congressional motives.

Corporate Vice President and General Counsel for C-SPAN Bruce D. Collins describes C-SPAN’s past efforts to televise Supreme Court proceedings and clarifies how C-SPAN, if given the opportunity, would approach televising the Court.

Appellate litigator Kenneth N. Flaxman provides a practitioner’s perspective, explaining why televising Supreme Court proceedings would make his job as arguing counsel easier.

Fairleigh Dickinson University Professor of American Politics and the Judicial Process Bruce Peabody assesses whether Senator Specter’s legislation would breach constitutional etiquette.

University of Michigan J.D. Candidate Scott C. Wilcox proposes a compromise: to forestall congressional action, the Justices should consider voluntarily introducing archival video recording to be available for viewing at the National Archives.

To download a PDF of the entire symposium, click here. Additional First Impressions content is available at http://www.michiganlawreview.org/.

Posted by LR_Michigan at 12:53 AM | Comments (1) | TrackBack

April 24, 2007

Announcing the Law Review Forum Project

posted by Daniel J. Solove

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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.

Posted by Daniel Solove at 01:04 AM | Comments (4) | TrackBack

Authors

Daniel J. Solove

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Kaimipono Wenger

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Dave Hoffman

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Nate Oman

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