Michigan Law Review, Issue 106:6 (April 2008)

Michigan Law Review, Issue 106:6 (April 2008)
(Past issues are available on our website.)

2008 Survey of Books Related to the Law

Foreword

Patricia M. Wald, War Tales and War Trials, 106 Mich. L. Rev. 901 (2008)

Confronting War

Robert J. Delahunty & John C. Yoo, Classic Revisited: Remarque: All Quiet on the Western Front, 106 Mich. L. Rev. 923 (2008)

Karen Engle, Classic Revisited: Remarque: All Quiet on the Western Front, 106 Mich. L. Rev. 941 (2008)

Stephen Reinhardt, Posner: Not a Suicide Pact: The Constitution in a Time of National Emergency, 106 Mich. L. Rev. 963 (2008)

Kevin Jon Heller, Drumbl: Atrocity, Punishment, and International Law, 106 Mich. L. Rev. 975 (2008)

The Administrative State

Jill R. Horwitz, Hyman: Medicare Meets Mephistopheles, 106 Mich. L. Rev. 1001 (2008)

M. Elizabeth Magill, Croley: Regulation and Public Interests: The Possibility of Good Regulatory Government, 106 Mich. L. Rev. 1021 (2008)

Comparative Law

Benjamin L. Liebman, West: Secrets, Sex and Spectacle: The Rules of Scandal in Japan and the United States, 106 Mich. L. Rev. 1041 (2008)

Roger P. Alford, Krotoszynski, Jr.: The First Amendment in Cross-Cultural Perspective: A Comparative Legal Analysis of the Freedom of Speech, 106 Mich. L. Rev. 1071 (2008)

Corporate Governance

Merrit B. Fox, Coffee, Jr.: Gatekeepers: The Professions and Corporate, 106 Mich. L. Rev. 1089 (2008)

Immigration

Cristina M. Rodriguez, Motomura: Americans in Waiting: The Lost Story of Immigration and Citizenship in the United States, 106 Mich. L. Rev. 1111 (2008)

International Law

Alex Geisinger & Michael Ashley Stein, Guzman: How International Law Works: A Rational Choice Theory, 106 Mich. L. Rev. 1129 (2008)

Yang Wang, Peerenboom: China Modernizes: Threat to the West or Model for the Rest?, 106 Mich. L. Rev. 1143 (2008)

Legal History

Sam Erman, Allen: Origins of the Dred Scott Case: Jacksonian Jurisprudence and the Supreme Court 1837 - 1857, 106 Mich. L. Rev. 1157 (2008)

Payment Systems

Katherine Porter, Mann: Charging Ahead: The Growth and Regulation of Payment Card Markets, 106 Mich. L. Rev. 1167 (2008)

Policing and Race

Richard Delgado, Herbert: Citizens, Cops, and Power: Recognizing the Limits of Community; Weitzer & Tuch: Race and Policing in America: Conflict and Reform; Weisburd & Braga: Police Innovation: Contrasting Perspectives, 106 Mich. L. Rev. 1193 (2008)

Torts

Anthony J. Sebok, Nagareda: Mass Torts in a World of Settlement, 106 Mich. L. Rev. 1213 (2008)

Posted by Michigan Law Review at 01:26 AM | Comments (2) | TrackBack

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.

Posted by Michigan Law Review at 12:55 PM | Comments (0) | TrackBack

Michigan Law Review, Issue 106:5 (March 2008)

Michigan Law Review, Issue 106:5 (March 2008)
(Past issues are available on our website.)

Articles

Rebecca J. Scott, Public Rights, Social Equality, and the Conceptual Roots of the Plessy Challenge , 106 Mich. L. Rev. 777 (2008)

Brian Galle, Federal Fairness to State Taxpayers: Irrationality, Unfunded Mandates, and the "SALT" Deduction , 106 Mich. L. Rev. 805 (2008)

Notes

Theodore Kill, Don't Cross the Streams: Past and Present Overstatement of Customary International Law in Connection with Conventional Fair and Equitable Treatment Obligations , 106 Mich. L. Rev. 853 (2008)

Joseph Mead, Confidence in the Nonprofit Sector Through Sarbanes-Oxley-Style Reforms , 106 Mich. L. Rev. 881 (2008)

Posted by Michigan Law Review at 02:59 PM | Comments (0) | TrackBack

Michigan Law Review, Issue 106:4 (February 2008)

Michigan Law Review, Issue 106:4 (February 2008)
(Past issues are available on our website.)

Articles

Cristina M. Rodríguez, The Significance of the Local in Immigration Regulation, 106 Mich. L. Rev. 567 (2008)

Mark A. Hall & Carl E. Schneider, Patients as Consumers: Courts, Contracts, and the New Medical Marketplace, 106 Mich. L. Rev. 643 (2008)

Correspondence

James J. White, Bankruptcy Noir, 106 Mich. L. Rev. 691 (2008)

Lynn M. LoPucki & Joseph W. Doherty, Bankruptcy Vérité, 106 Mich. L. Rev. 721 (2008)

Note

John C. Evans, Addressing Default Trends in Patent-Based Section 337 Proceedings in the United States International Trade Commission, 106 Mich. L. Rev. 745 (2008)

Posted by Michigan Law Review at 06:50 PM | Comments (0) | TrackBack

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

Michigan Law Review, Issue 106:3 (December 2007)

Michigan Law Review, Issue 106:3 (December 2007)
(Past issues are available on our website.)

Articles

Rueul E. Schiller, The Era of Deference: Courts, Expertise, and the Emergence of New Deal Administrative Law, 106 Mich. L. Rev. 399 (2007)

Robert D. Sloane, Prologue to a Voluntarist War Convention, 106 Mich. L. Rev. 443 (2007)

William Michael Treanor, Taking Text too Seriously: Modern Textualism, Original Meaning, and the Case of Amar's Bill of Rights, 106 Mich. L. Rev. 487 (2007)

Note

Michael J. Ruttinger, Is There a Dormant Extraterritoriality Principle?: Commerce Clause Limits on State Antitrust Laws, 106 Mich. L. Rev. 545 (2007)

Posted by Michigan Law Review at 08:58 PM | Comments (0) | TrackBack

Michigan Law Review, Issue 106:2 (November 2007)

Michigan Law Review, Issue 106:2 (November 2007)
(Past issues are available on our website.)

Articles

Laura A. Rosenbury, Friends with Benefits?, 106 Mich. L. Rev. 189 (2007)

Ariel Porat, Offsetting Risks, 106 Mich. L. Rev. 243 (2007)

Essay

Nicole Stelle Garnett, Suburbs as Exit, Suburbs as Entrance, 106 Mich. L. Rev. 277 (2007)

Notes

Benjamin H. Diessel, Trolling for Trolls: The Pitfalls of the Emerging Market Competition Requirement for Permanent Injunctions in Patent Cases Post-eBay, 106 Mich. L. Rev. 305 (2007)

Peter Curtis Magic, Exclusion Confusion? A Defense of the Federal Circuit's Specific Exclusion Jurisprudence, 106 Mich. L. Rev. 347 (2007)

Sarabeth A. Rayho, Divorcees Turn About in Their Graves as Ex-Spouses Cash In: Codified Constructive Trusts Ensure an Equitable Result Regarding ERISA-Governed Employee Benefit Plans, 106 Mich. L. Rev. 373 (2007)

Posted by Michigan Law Review at 07:14 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 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.

Posted by Michigan Law Review at 11:30 AM | Comments (0) | TrackBack

Michigan Law Review, Issue 106:1 (October 2007)

Michigan Law Review, Issue 106:1 (October 2007)
(Past issues are also available on our website.)

Articles

Lynn M. LoPucki & Joseph W. Doherty, Bankruptcy Fire Sales, 106 Mich. L. Rev. 1 (2007)

Ingrid Brunk Wuerth, International Law and Constitutional Interpretation: The Commander in Chief Clause Reconsidered, 106 Mich. L. Rev. 61 (2007)

Notes

Peter DiCola, Choosing between the Necessity and Public Interest Standards in FCC Review of Media Ownership Rules, 106 Mich. L. Rev. 101 (2007)

Kyle H. Landis-Marinello, Noontime Dumping: Why States Have Broad Discretion to Regulate Onboard Treatments of Ballast Water, 106 Mich. L. Rev. 135 (2007)

Jeremy M. Suhr, Reading Too Much into Reeder-Simco?, 106 Mich. L. Rev. 169 (2007)

Posted by Michigan Law Review at 08:07 PM | Comments (0) | TrackBack

Announcing the Law Review Table of Contents Project

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

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

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

Participating law reviews thus far include:
* Boston College
* Chicago
* Columbia
* Cornell
* Duke
* Emory
* Fordham
* Georgetown
* GW
* Harvard
* Indiana
* Michigan
* Minnesota
* NYU
* Northwestern
* Notre Dame
* Southern California
* Stanford
* Texas
* UCLA
* Vanderbilt
* Virginia
* Washington University
* Yale

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

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

Posted by Daniel J. Solove at 12:10 AM | Comments (7) | TrackBack

The Supreme Court, the Federal Circuit, and Patent Law

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 Michigan Law Review at 05:29 PM | Comments (0) | TrackBack

Symposium on Televising the Supreme Court

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 Michigan Law Review at 12:53 AM | Comments (1) | TrackBack

Announcing the Law Review Forum Project

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 J. Solove at 01:04 AM | Comments (4) | TrackBack