April 30, 2008
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.
Posted by Yale Law Journal at 01:09 PM | Comments (1) | TrackBack
April 25, 2008
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."
Posted by Yale Law Journal at 01:07 PM | Comments (1) | TrackBack
April 16, 2008
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.
Posted by Yale Law Journal at 04:17 PM | Comments (0) | TrackBack
April 02, 2008
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.
Posted by Yale Law Journal at 10:06 AM | Comments (0) | TrackBack
March 28, 2008
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.
Posted by Yale Law Journal at 11:44 AM | Comments (0) | TrackBack
March 18, 2008
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.
Posted by Yale Law Journal at 08:23 PM | Comments (0) | TrackBack
The Yale Law Journal, Volume 117, Issue 5 (March 2008)
The Yale Law Journal, Volume 117, Issue 5 (March 2008)
ARTICLES
Race and Democratic Contestation
Michael S. Kang
The Access to Knowledge Mobilization and the New Politics of Intellectual Property
Amy Kapczynski
REVIEW
Giving the Constitution to the Courts
Jamal Greene
NOTE
Defending the Faithful: Speaking the Language of Group Harm in Free Exercise Challenges to Counterterrorism Profiling Murad Hussain
COMMENTS
Ledbitter in Congress:The Limits of a Narrow Legislative Override
Seeking More Scienter:The Effect of False Claims Act Interpretations
Posted by Yale Law Journal at 11:33 AM | Comments (0) | TrackBack
March 03, 2008
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.
Posted by Yale Law Journal at 07:26 PM | Comments (1) | TrackBack
February 25, 2008
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.
Posted by Yale Law Journal at 10:23 PM | Comments (0) | TrackBack
February 02, 2008
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.
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.
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.
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.
Posted by Yale Law Journal at 03:52 PM | Comments (0) | TrackBack
The Yale Law Journal, Volume 117, Issue 4 (January 2008)
The Yale Law Journal, Volume 117, Issue 4 (January 2008)
ARTICLES
Antislavery Courts and the Dawn of International Human Rights Law
Jenny S. Martinez
NOTES
Profits as Commercial Success
Andrew Blair-Stanek
Enforcing the Treaty Rights of Aliens
Laura Moranchek Hussain
COMMENTS
United States v. Ankeny: Remedying the Fourth Amendment's
Reasonable Manner Requirement
Posted by Yale Law Journal at 03:44 PM | Comments (0) | TrackBack
December 25, 2007
The Yale Law Journal, Volume 117, Issue 3 (December 2007)
The Yale Law Journal, Volume 117, Issue 3 (December 2007)
ARTICLES
Consumerism Versus Producerism: A Study in Comparative Law
James Q. Whitman
The Constitution Outside the Constitution
Ernest A. Young
NOTES
Insurance Law’s Hapless Busybody: A Case Against the Insurable Interest Requirement
Jacob Loshin
Concession Agreements: From Private Contract to Public Policy
Nicholas Miranda
Posted by Yale Law Journal at 01:03 PM | Comments (0) | TrackBack
December 23, 2007
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
December 04, 2007
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
The Yale Law Journal, Volume 117, Issue 2 (November 2007)
The Yale Law Journal, Volume 117, Issue 2 (November 2007)
ARTICLE
The Promise and Pitfalls of the New Voting Rights Act
Nathaniel Persily
TRIBUTE
Law Is Everywhere
Owen Fiss
NOTE
The Canons of War
Daniel J. Freeman
COMMENT
Piercing China's Corporate Veil: Open Questions from the New Company Law
Posted by Yale Law Journal at 05:00 PM | Comments (0) | TrackBack
November 25, 2007
The Yale Law Journal, Volume 117, Issue 1 (October 2007)
The Yale Law Journal, Volume 117, Issue 1 (October 2007)
ARTICLE
Contracting for Cooperation in Recovery
Gregory Klass
NOTES
Realizing the Potential of the Joint Harassment/Retaliation Claim
Eisha Jain
COMMENT
Cleaning House: Congressional Commissioners for Standards
Posted by Yale Law Journal at 02:50 PM | Comments (0) | TrackBack
November 16, 2007
Yale Law Journal Pocket Part: The Supreme Court and Comedy
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.
Posted by Yale Law Journal at 08:06 PM | Comments (0) | TrackBack
November 13, 2007
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
November 09, 2007
October in The Pocket Part
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.
Posted by Yale Law Journal at 11:30 AM | Comments (0) | TrackBack
October 20, 2007
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.
Posted by Yale Law Journal at 12:51 AM | Comments (0) | TrackBack
October 18, 2007
Yale Law Journal Joins the Law Review Forum Project
I'm pleased to announce that Yale Law Journal's Pocket Part is joining our Law Review Forum Project. The goal of our project is to provide you with easy access to the online forums of many law reviews -- all in one central place. We're delighted to now have eight participating law reviews: Yale, Harvard, Penn, GW, UCLA, Northwestern, Michigan, Virginia. We hope to have more join us soon.
Posted by Daniel J. Solove at 12:01 AM | Comments (2) | TrackBack
