Category: Law Rev Forum

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

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

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Responses: Plea bargaining

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

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

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

Professor O’Hear, in his response, What’s Good About Trials?, questions whether trial distortion represents a significant problem. Professor O’Hear

believes our main focus should be on “mak[ing] plea bargaining processes look more like trial processes.” According to Professor O’Hear, “The trick is to find ways of injecting the values of voice, neutrality, and respect into the plea bargaining process without robbing plea bargaining of its efficiency advantages over the trial process.”

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

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

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Debate: Voter ID: What’s at Stake?

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

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

issues behind the controversial matter of voter ID in Voter ID: What’s at Stake?

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

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Pay-to-Stay Programs in Correctional Facilities

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

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

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

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Yale Law Journal Pocket Part: The Supreme Court and Comedy

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

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

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

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

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

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

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October in The Pocket Part

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

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

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

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Response: Just Following Orders

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

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

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

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Responses: The Disability Integration Presumption

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

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

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

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

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

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Debate: Can Handguns Be Effectively Regulated?

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

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

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

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

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