Category: Law Rev Forum


Cardozo Law Review, Vol. 35, Issue 1




Copyright © 2013 by Yeshiva University
All rights reserved



Criminal Forfeiture and the Sixth Amendment: The Role of the Jury at Common Law
Richard E. Finneran & Steven K. Luther 1

Meaningful Membership: Making War a Bit More Criminal
Rachel E. VanLandingham 79

We Are Never Ever Getting Back Together: Domestic Violence Victims, Defendants, and Due Process
Jessica Miles 141

The Law and Financial Transparency in Churches: Reconsidering the Form 990 Exemption
John Montague 203

Taking Rules Seriously: The Rise of Lawyer Rules as Substantive Law and the Public Policy Exception in Contract Law
Benjamin P. Cooper 267

Regulating Health and Wealth
Alena Allen 309


The Disclaimer Dichotomy: A First Amendment Analysis of Compelled Speech in Disclosure Ordinances Governing Crisis Pregnancy Centers and Laws Mandating Biased Physician Counseling
Molly Duane 349

Rethinking ReDigi: How a Characteristics-Based Test Advances the “Digital First Sale” Doctrine Debate
Gregory Capobianco 391


For more information on responding to any of these articles on Cardozo Law Review’s online companion, Cardozo Law Review de•novo, please visit us here.


Cardozo Law Review, Vol. 34, Issue 6




Copyright © 2013 by Yeshiva University
All rights reserved



Mock Trials and Real Justices and Judges
Richard A. Posner 2111


Saving Disparate Impact
Lawrence Rosenthal 2157

Contract Theory and the Failures of Public-Private Contracting
Wendy Netter Epstein 2211

Banished for Life: Deportation of Juvenile Offenders as Cruel and Unusual Punishment
Beth Caldwell 2261

Restorative Criminal Justice
Hadar Dancig-Rosenberg & Tali Gal 2313

Physician Speech and Mandatory Ultrasound Laws: The First Amendment’s Limit on Compelled Ideological Speech
Jennifer M. Keighley 2347


Stories Mediators Tell: The Editors’ Reflections
Eric R. Galton & Lela P. Love 2409

Stories Mediators Tell: A Review
Wayne Brazil 2415

Lessons from Mediators’ Stories
John Lande 2423

Lawyers and Mediation: Lessons from Mediator Stories
Sharon Press 2433

Story as Sermon and Seduction
Ellen Waldman 2443

Using Mediation Stories to Improve the Teaching of Conflict Resolution
Forrest S. Mosten 2455


For more information on responding to any of these articles on Cardozo Law Review’s online companion, Cardozo Law Review de•novo, please visit us here.



Cardozo Law Review, Vol. 34, Issue 5




Copyright © 2013 by Yeshiva University
All rights reserved




Deconstructing and Reconstructing Hot News: Toward a Functional Approach
Jeffrey L. Harrison & Robyn Shelton 1649

Institutional Free Exercise and Religious Land Use
John Infranca 1693

The Plea-Bargain Crisis for Noncitizens in Misdemeanor Court
Jason A. Cade 1751

Uncertainty as Enforcement Mechanism: The New Expansion of Secondary Copyright Liability to Internet Platforms 
John Blevins 1821

ADR’s Place in Foreclosure: Remedying the Flaws of a Securitized Housing Market
Lydia Nussbaum 1889

Distorted and Diminished Tort Claims for Women
Jamie R. Abrams 1955


But It Wasn’t My Fault! The Scope of the Zoning Estoppel Doctrine
Simon J. Elkharrat 1999

Protecting Juveniles’ Right to Remain Silent: Dangers of the <em “mso-bidi-font-style:=”” normal”=””>Thompkins Rule and Recommendations for Reform
Lauren Gottesman 2031

Health Exchange Federalism: Striking the Balance Between State Flexibility and Consumer Protection in ACA Implementation
Sam Solomon 2073


For more information on responding to any of these articles on Cardozo Law Review’s online companion, Cardozo Law Review de•novo, please visit us here.


Cardozo Law Review, China Re-Rising

Symposium on China’s Transition from Manufacturing to Innovation Economy Hosted by Cardozo Law Review’s Online Journal

NEW YORK, NY, April 29, 2013 — All eyes are on China in the twenty-first century, as it emerges as one of the fastest growing economies in the world. At the same time, losses in various industries are attributed to piracy—a substantial amount of which is alleged to occur within China’s borders—and the Chinese government is routinely criticized for its weak enforcement measures against counterfeiting activities and intellectual property infringement on its soil.Cardozo Law Review de•novo’s online symposium, “China Re-Rising?: Innovation and Collaboration for a Successful Twenty-First Century” focuses  on China’s overall transition from a manufacturing to an innovation economy and how this transition affects IP policies and industries around the world.

The online symposium – located at – features articles from practitioners, industry corporate counsel, professors, and Chinese IP law specialists. Esteemed participants include Chen Wang, the Deputy Chief IP Counsel of E.I. du Pont de Nemours Company; Jonathan Sallet, a Partner at O’Melveny & Myers LLP; and Professor Peter Yu, the Kern Family Chair in Intellectual Property Law and Director of the Intellectual Property Law Center at Drake University Law School.

About the Articles:

Professor Yu discusses the slowly-begun change in discourse around China’s intellectual property system, particularly in the field of patents. He presents the reader with five key questions on the state of Chinese intellectual property law and policy. His answers suggest that the future of China’s intellectual property system is dualistic and dynamic—while massive piracy and counterfeiting does continue, this ongoing issue is balanced by China’s rise as a patent power.

Professors Murphy and Orcutt discuss China’s patent subsidy program—an aspect of China’s national innovation strategy that aims to increase domestic patents and innovation through government subsidies to pay for domestic inventors’ legal costs associated with obtaining patents. Noting that the program has been criticized for failing to fund truly valuable or innovative patents, the Authors propose a unique two-stage, three-dimensional relative value technique for the Chinese government to implement in evaluating whether to fund a given patent application through the subsidy program.

Ms. Wang and Mr. Sallet in turn criticize the Chinese government’s metric-based approach to innovation. They posit that China’s emphasis on numerical goals to domestic patenting actually hampers Chinese innovation by directing resources away from research and the development of truly valuable inventions. The Authors further discuss how China’s metric-based approach frustrates the ability of multi-national corporations to collaborate effectively with Chinese companies. They conclude by identifying steps the Chinese government can take to increase local innovation through effective international collaboration.

Professor Shao calls for a holistic perspective of the Chinese innovation economy, law, and policies. His Article offers a historical and cultural perspective that aims to make a holistic approach possible for Western scholars and practitioners, who lack the knowledge of Chinese history and culture necessary to understand the context of China’s current policies. He concludes by proposing that innovation still can, and should, be the bridge to China’s successful economic transition.

Professors Murphree and Breznitz discuss China’s innovation strategy through the lens of its failed attempts to develop globally successful technology standards. The Authors attribute these failures to fragmented production and structured uncertainty implicit in the Chinese domestic market. Despite these failures, the Authors acknowledge that Chinese companies’ participation in even failed attempts does produce tangible benefits, like receiving lower royalty rates on goods they produced.

View the online symposium at


Cardozo Law Review, Vol. 34, Issue 4


Charter Schools, the Establishment Clause, and the Neoliberal Turn in Public Education 
Aaron Saiger 1163

Challenging the Death Penalty with Statistics: Furman, McCleskey, and a Single County Case Study
Steven F. Shatz & Terry Dalton 1227

The Irony of a Faustian Bargain: A Reconsideration of the Supreme Court’s 1953 United States v. Reynolds Decision
David Rudenstine 1283

Undercover Policing, Overstated Culpability 
Eda Katharine Tinto 1401

Municipal Securities: The Crisis of State and Local Government Indebtedness, Systemic Costs of Low Default Rates, and Opportunities for Reform
Christine Sgarlata Chung 1455


“That’s the Guy!”: Federal Rule of Evidence 801(d)(1)(C) and Out-of-Court Statements of Identification 
Gilbert M. Rein 1539

“Every Move That She Makes”: Copyright Protection for Stage Directions and the Fictional Character Standard
Deana S. Stein 1571

Quasi-Judicial Prosecutors and Post-Conviction Claims of Innocence: Granting Recusals to  Make Impartiality a Reality
Rachel Pecker 1609


For more information on responding to any of these articles on Cardozo Law Review’s online companion, Cardozo Law Review de•novo, please visit us here.


The Blue Book and its Times

Yale Robinson, a student in my Corporations class, today told me about his law review note topic, which happened to be in the same field as my Note, published back in 1987. After class, Yale went and found my Note and emailed me a report about it.  In the email, Yale added:

As an aside, it is amusing to see that the Table of Contents in the Cardozo Law Review of that time does not list the author of a Note, only the title, and the first page of the Note also does not give the author’s name. You have to go to the last page to see the author’s name. I don’t know why this was done, but it appears that this omission was rectified beginning with the April 1991 issue.

I replied as follows:

The curious style you mention was the standard practice at all law reviews at all schools for [decades, since 1926,] up through 1991 when the Blue Book announced the change. Before 1991, notes were “unsigned” and citation was merely to Note, . . .  rather than Cunningham, Note . . . .

Another practice changed around the same time: in the old days, only an author’s last name was used (Cunningham or Robinson etc); thereafter the first name and initial are included.

I think these changes reflect things about the times, such as elitism that wore away in the case of naming Note authors and a sense of full identity . . . in the case of the full name.

The keepers of the Blue Book keep citation practice up with the times.  Looking back at the styles of earlier eras can be amusing.  I wonder what other amusing anachronisms are to be found in the old style books.


You can see the covers of a dozen different editions of the Blue Book, from which the two in this post are taken, here 





Cardozo Law Review, Vol. 34, Issue 2


Cartels as Rational Business Strategy: Crime Pays
John M. Connor & Robert H. Lande 427

Dynamic Fiduciary Duties
Andrew S. Gold 491

The Twilight of Equity Liquidity
Jeff Schwartz 531

The Cultural Analysis Paradigm: Women and Synagogue Ritual as a Case Study
Roberta Rosenthal Kwall 609

Can a Computer Intercept Your Email?
Bruce E. Boyden 669

Discovery About Discovery: Sampling Practice and the Resolution of Discovery  Disputes in an Age of Ever-Increasing Information
Charles Yablon & Nick Landsman-Roos 719


Terminating Beyond the Limits: CMS Is Overreaching in Its Attempt to Regulate ACOs According to Antitrust Standards
Benjamin M. Zegarelli 781

A Power and a Duty: Prosecutorial Discretion and Obligation in United States Sentencing Guideline § 3E1.1(B)
Laura Waters 813

A New Paradigm: Domicile as the Exclusive Basis for the Exercise of General Jurisdiction over Individual Defendants
Emily Eng 845


For more information on responding to any of these articles on Cardozo Law Review’s online companion, Cardozo Law Review de•novo, please visit us here.


Vanderbilt Law Review En Banc – New Publications

Vanderbilt Law Review En Banc is pleased to announce several new publications.

Three response essays in our Fisher v. University of Texas at Austin Roundtable are now available, including:

Revisiting Grutter and Its Diversity Rationale: A Few Reactions to Professor Blumstein’s Critique
Vikram David Amar · 65 Vand. L. Rev. En Banc 195 (2012)

Girardeau A. Spann · 65 Vand. L. Rev. En Banc 203 (2012)

The Education of an Admissions Office
Gerald Torres · 65 Vand. L. Rev. En Banc 211 (2012)

We have also published two new book reviews:

American Legal History Revisited
James W. Ely, Jr. · 65 Vand. L. Rev. En Banc 185 (2012), Reviewing: G. Edward White, Law in American History, Volume 1: From the Colonial Years Through the Civil War (Oxford University Press, 2012).

Justice for All?
Rebecca K. Lee · 65 Vand. L. Rev. En Banc 217 (2012), Reviewing: Judith Resnik & Dennis Curtis, Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms (Yale University Press, 2011).


Vanderbilt Law Review En Banc Fisher v. University of Texas Roundtable

Vanderbilt Law Review En Banc is pleased to present the first round of our current Roundtable, which looks at Fisher v. University of Texas at Austin. Fisher will be argued in the October 2012 Supreme Court Term and the Court will consider whether the University of Texas’s use of race in its undergraduate admissions process is lawful under the Equal Protection Clause of the Fourteenth Amendment.

Professors Vikram Amar, James Blumstein, Tomiko Brown-Nagin, Girardeau Spann, and Gerald Torres consider the issues and offer their views on how the Court might—or should—approach this case in their “First Take” articles. In approximately eight weeks, these same scholars will offer responses to each other’s essays. We look forward to a spirited debate on these interesting and often contentious issues.

Roundtable: First Takes

Is Honesty the Best (Judicial) Policy in Affirmative Action Cases? Fisher v. University of Texas Gives the Court (Yet) Another Chance to Say Yes
Vikram David Amar · 65 Vand. L. Rev. En Banc 77 (2012)

Grutter and Fisher: A Reassessment and a Preview
James F. Blumstein · 65 Vand. L. Rev. En Banc 57 (2012)

The Diversity Paradox: Judicial Review in an Age of Demographic and Educational Change
Tomiko Brown-Nagin · 65 Vand. L. Rev. En Banc 113 (2012)

Fisher v. Grutter
Girardeau A. Spann · 65 Vand. L. Rev. En Banc 45 (2012)

Fisher v. University of Texas: Living in the Dwindling Shadow of LBJ’s America
Gerald Torres · 65 Vand. L. Rev. En Banc 97 (2012)


Harvard Law Review Online Forum: Responding to Judge Guido Calabresi, Judge Dennis Davis, Rosalind Dixon, Dieter Grimm, Patrick O. Gudridge, Martha Minow, Margaret Jane Radin, In Tribute: Frank I. Michelman, 125 Harv. L. Rev. 879 (2012)


Harvard Law Review

Online Forum

Provocation: Law’s Republics

Vlad Perju :: I begin with three premises: First, the relevance for any polity of the exercises in self-government of other political communities, as encoded in their constitutional laws and cultures, is not self evident and must therefore be justified. Second, that justification must place domestic and foreign law within a unitary framework by reference to which the comparativist’s choices can be defended. Third, no project of comparative constitutional law, and perhaps comparative law generally, can withstand scrutiny unless it articulates, or it signs on to some articulation, of such a framework. By placing comparative constitutional law within the larger constitutional democratic project of government by law, Professor Frank Michelman’s work gives us a framework for how the constitutional mind can approach — or “go visiting,” as Hannah Arendt put it — the experiments in collective self-determination of other free communities of equals.  READ MORE

Provocation: Frank’s Way

Robert Post :: I know that Dean Martha Minow would like me to begin with a provocation, but I can’t help beginning instead with an acknowledgment. Throughout my career as a legal academic, I have always had two guiding lights, two pole stars whose integrity and depth I have trusted to steer me in the right direction. One is Owen Fiss, and the other is Frank Michelman.  READ MORE

Provocation: Everyone is a Philospher!

T.M. Scanlon :: In the first chapter of his book, Reading Obama, Professor James Kloppenberg offers an account of the intellectual climate at Harvard Law School during the years in which President Obama was here as a student, describing both the influential figures at the school and the writers and ideas they were discussing. Unsurprisingly, Professor Frank Michelman appears prominently on the first list.  READ MORE

Provocation: The Comparative Turn: Accident, Coincidence, or Fate?

Katharine G. Young :: Why would a long-standing leader in the field of American constitutional law turn his intellectual attention to another constitutional system? And why choose South Africa? For almost two decades, Frank Michelman’s contribution to the field of comparative constitutional law has been much like his contribution to constitutional theory and constitutional law in general: soaring, generous, always in dialogue with others, and yet always uniquely his own. In this Provocation, I examine: what accounts for the comparative turn?  READ MORE