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

“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 Responses

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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The Yale Law Journal Pocket Part: Congressional Ethics

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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Yale Law Journal Pocket Part Call for Papers

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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Virginia Law Review In Brief

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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Agricultural Animals and Animal Law

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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The Yale Law Journal Pocket Part: State Legislatures

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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The Yale Law Journal Pocket Part: Hybrid Situations

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 Responses

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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The Yale Law Journal Pocket Part: State Courts

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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Response: Setting the Bar Too High

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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Response: Law and the Market: The Impact of Enforcement

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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The Yale Law Journal Pocket Part: Natural Born Citizenship

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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On the Colloquy: Jurisdiction and Climate Change

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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The Yale Law Journal Pocket Part: Antislavery Courts

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

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.

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The Pocket Part: 2007 Highlights

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 Responses

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

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.

Posted by Michigan Law Review at 10:00 PM | Comments (7) | TrackBack

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

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.

Posted by University of Pennsylvania Law Review at 05:32 PM | Comments (0) | TrackBack

See Also Forum Discussion: Medical Autonomy and the Constitution

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.

Posted by Texas Law Review at 03:24 PM | Comments (0) | TrackBack

Responses to Property Outlaws

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.

Posted by University of Pennsylvania Law Review at 01:50 PM | Comments (1) | TrackBack

Debate: Collaberative Environmental Law

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

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.

Posted by University of Pennsylvania Law Review at 04:03 PM | Comments (0) | TrackBack

Yale Law Journal Pocket Part: The New Voting Rights Act

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.

Posted by Yale Law Journal at 01:35 PM | Comments (0) | TrackBack

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

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.

Posted by Yale Law Journal at 05:29 PM | Comments (0) | TrackBack

Responses: Plea bargaining

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.

Posted by University of Pennsylvania Law Review at 09:54 AM | Comments (0) | TrackBack

Debate: Voter ID: What's at Stake?

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.

Posted by University of Pennsylvania Law Review at 04:14 PM | Comments (0) | TrackBack

Pay-to-Stay Programs in Correctional Facilities

The Michigan Law Review’s companion journal First Impressions today published an online symposium on