Category: Law Rev Forum

0

Iowa Law Review, Volume 95, Issue 5 (July 2010)

Iowa Law Review

Articles

 Burying the “Continuing Body” Theory of the Senate
Aaron-Andrew P. Bruhl

 Protecting Patients with Passports: Medical Tourism and the Patient-Protective Argument
I. Glenn Cohen

 Do Partisan Elections of Judges Produce Unequal Justice When Courts Review Employment Arbitrations?
Michael H. LeRoy

 Evidence Law as a System of Incentives
John Leubsdorf

 Notes

 A New Wave of Paternalistic Tobacco Regulation
Robert J. Baehr

 Fair Use Through the Lenz of § 512(c) of the DMCA: A Preemptive Defense to a Premature Remedy?
Joseph M. Miller

 Judicial Federalism, Equal Protection, and the Legacy of Racing Association of Central Iowa
Brett F. Roberts

1

When Law Reviews Compete, You Win!

Ok that’s actually a rip-off of the gimmicky slogan of “Lending Tree,” but I have been thinking recently (as many do at this time of year) about the law review submission process. In particular, I have been thinking about the expedite element, and why it happens. One answer is that we are all prestige-whores (er..lovers) and that the only thing we value is the rank of the school where the law review is housed.

That may be true, but here is a somewhat more charitable reading: from the point of view of the submitting authors Law Reviews offer authors a relatively undifferentiated product and thus we gravitate to the main axis of differentiation – law school/journal rank. I say “from the point of view of the submitting authors” advisedly, because there are many axes on which law reviews differ. Even in my short time as an academic, the reviews I have worked with have varied significantly as to the quality of substantive comments, the likelihood they would stick on timeline, whether they use track changes to make it easy to review their alterations, etc. The problem is that these are all things I have only discovered AFTER working with them.

This is in some ways similar to health care purchasing by an individual consumer – quality is opaque, and gathering the necessary information would be too costly to do on my own (there is a further problem with health care that even when information is available such as report cards for hospitals created by state agencies, as I discuss here, many patients tend to ignore them and/or privilege word of mouth appraisals). Further, there is an additional inter-temporal problem in that each law review’s board (and thus quality) and policies changes on a regular basis such that information becomes stale quite quickly. Even in an institutional-memory-obsessed journal like the Harvard Law Review with a long tradition, there is a period called “transition” when the 2Ls take the reigns and as a body can change many of the facets of the reviews process, including things like the number of stages of editing, etc.

Is this problem intractable? Yes, and no. Law reviews could advertise and contractually commit themselves to particular types of terms as soon as the submission season starts – for example, issues will come out within one month of issue date, to give one example.  (I put to one side other kinds of differentiation – for example accepting longer articles when other journals do not, since that will change at most to whom one submits, and even then most of us are risk-averse enough to be likely to shorten our papers to fall within the guidelines of the larger number of journals). True, it is very very unlikely that any of us would sue a law review over the failure to meet that term of publication date, but even the promise itself might be enough to satisfy us and set up a more desirable norm. Are there enough of these kinds of terms on which journals could compete that would counterbalance the incentive to merely pick the best ranked journals? I am not sure, it seems plausible it might matter within rough journal peer groups, but I would be curious if others have ideas of what kinds of terms they would like to see law reviews compete or converge on? Indeed perhaps some enterprising law review editors may be reading this very blog…

0

Iowa Law Review, Volume 95, Issue 4 (May 2010)

Iowa Law Review

Articles

Insuring Understanding: The Tested Language Defense
Michelle Boardman

Choice of Law Theory and the Metaphysics of the Stand-Alone Trigger
Lea Brilmayer & Raechel Anglin

Managing Identity: Buying Into the Brand at Work
Marion Crain

Why Should the First Amendment Protect Government Speech When the Government Has Nothing To Say?
Steven G. Gey

Notes

Cybernetic-Enhancement Technology and the Future of Disability Law
Collin R. Bockman

Equal Education Opportunity and the Pursuit of “Just Schools”: The Des Moines Independent Community School District Rethinks Diversity and the Meaning of “Minority Student”
Jacob E. Meusch

Language Legislation in Iowa: Lessons Learned from the Enactment and Application of the Iowa English Language Reaffirmation Act
Evan L. Seite

0

The Yale Law Journal Online: Conditional Taxation and the Constitutionality of Health Care Reform

yljonline

The recent passage of health care reform has sparked contentious debate on the constitutionality of the requirement that individuals purchase a qualifying health insurance plan or be subject to a tax (the “individualized responsibility requirement” or “IRR”). In the latest YLJ Online Essay, Conditional Taxation and the Constitutionality of Health Care Reform, Professor Brian Galle argues that even if the commerce power and Necessary and Proper Clause do not clearly authorize the IRR, it is a straightforward application of Congress’s broad taxation authority. Professor Galle further contends that attacks on the normative desirability of this reading of the taxing power are misguided.

Preferred citation: Brian Galle, Conditional Taxation and the Constitutionality of Health Care Reform, 120 YALE L.J. ONLINE 27 (2010), http://yalelawjournal.org/2010/5/31/galle.html.

0

Minnesota Law Review Headnotes 94:2 (May 2010)

headnotes-logo1

The Minnesota Law Review is proud to announce the spring edition of our new online companion journal, Minnesota Law Review Headnotes. In addition to serving as the online archive of the Law Review‘s print articles, available in PDF format, Headnotes also features original, online-only Response articles in which prominent academics respond to the articles the Law Review publishes. Comment fields are available at the end of each Response, and readers are encouraged to provide feedback.

In this issue of Headnotes:

Ralph Hall (University of Minnesota Law School) responds to Richard Epstein’s article, Against Permititis: Why Voluntary Organizations Should Regulate the Use of Cancer Drugs. In Right Question, Wrong Answer, Professor Hall argues that while he agrees with Professor Epstein’s assessment of the problems with the FDA drug approval process, he disagrees with his proposed solution. Professor Hall argues that Professor Epstein’s solution—to reduce the FDA to an advisory/information role after Phase I testing—devalues the mission of the FDA and has already been rejected by the body politic.   Instead, Professor Epstein contends that the solution to problems with the FDA drug approval process is to work to improve and optimize the system, not to eliminate it.

Aaron Perzanowski (Wayne State University Law School) responds to David Fagundes’s article, Property Rhetoric and the Public Domain. In In Defense of Intellectual Property Anxiety, Professor Perzanowski expresses skepticism about two assumptions underlying the argument for embracing property rhetoric to promote the public domain. This argument assumes, first, public recognition of social discourse theory as an account of property and, second, rhetorical advantages of social discourse theory that are comparable to those of more familiar notions of private property. Perzanowski concludes that the simple intuitive appeal of Blackstonian property cautions against styling the struggle for balanced copyright and patent policy as a debate over competing property interests.

Ted Sampsell-Jones (William Mitchell College of Law) replies to Professors Cribari and Judges’s article, Speaking of Silence: A Reply to “Making Defendants Speak. In On Silence, Professor Sampsell-Jones argues that their theory of the Self-Incrimination Clause, which relies on intuition to determine which practices are necessary to “test the prosecution” in criminal cases, is lacking in both textual support and practical utility. As a result, he concludes that their defense of Griffin v. California is unconvincing.

1

On the Colloquy: Military Sexual Status Regulation, Artificial Intelligence, Black Holes, and more…

NW-Colloquy-Logo.jpg

In the past month, the Northwestern University Law Review Colloquy has published essays relevant to current events and debates.

Professor Zachary Kramer writes in his essay that the U.S. military should not be in the business of regulating sexual status. Rather, the military should focus on regulation of sexual conduct for both hetero- and homosexuals.

Professor John McGinnis discusses a recent major media interest, Artificial Intelligence, and what the best government response to its development should be. He argues that, rather than prohibition or heavy regulation, the government should support the development of so-called “friendly AI,” to both prevent potential threats and develop the many benefits of it.

Several legal scholars, notably Professor Adrian Vermeule, contend that the APA is replete with procedural exceptions, which generate “black holes” where federal agencies are free to act outside the constraints of legal order. Unlike Professor Vermeule, Professor Evan Criddle argues that such black holes are not institutional inevitabilities. Rather, administrative law should be reformed to promote a culture of justification, based on the principle that public officials and agencies serve as fiduciaries for the public.

Finally, in Professor Martin Redish’s new book, Wholesale Justice, he provides a thorough analysis of the constitutional implications of the class action mechanism. In his book review, Douglas Smith expands upon these ideas and discusses other ways in which Professor Redish’s theories may be applied in practice or in which the constitutional concerns he identifies may already be recognized.

For more, go to the Colloquy archives page, and remember to check back each week for new content.

1

Iowa Law Review, Volume 95, Issue 3 (March 2010)

Iowa Law Review

Articles

Peacemaking in the Culture War Between Gay Rights and Religious Liberty
Jennifer Gerarda Brown

Inventing Tests, Destabilizing Systems
Kevin M. Clermont & Stephen C. Yeazell

The Law of Vertical Integration and the Business Firm: 1880–1960
Herbert Hovenkamp

“We, the Paparazzi”: Developing a Privacy Paradigm for Digital Video
Jacqueline D. Lipton

Notes

A Duty to Kiss and Tell? Examining the Uncomfortable Relationship Between Negligence and the Transmission of HPV
Timothy J. Hasken

Issuing Violations Without Tangible Evidence: Computer Modeling for Clean Water Act Enforcement
Sara R. Reichenauer

Drawing the Line: Niswander’s Balance Between Employer Confidentiality Interests and Employee Title VII Anti-Retaliation Rights
Nicholas M. Strohmayer

0

Iowa Law Review, Volume 95, Issue 2 (February 2010)

Iowa Law Review

Articles

W(h)ither Economic Substance?
Leandra Lederman

Executive Detention, Boumediene, and the New Common Law of Habeas
Baher Azmy

Where United Haulers Might Take Us: The Future of the State-Self-Promotion Exception to the Dormant Commerce Clause Rule
Dan T. Coenen

Property, Privacy, and the Pursuit of Interconnected Electronic Medical Records
Mark A. Hall

Notes

Cultural Pragmatism: A New Approach to the International Movement of Antiquities
Matthew R. Hoffman

The Judge’s Order and the Rising Phoenix: The Role Public Interests Should Play in Limiting Author Copyrights in Derivative-Work Markets
Christine M. Huggins

Unreasonable Delay at the VA: Why Federal District Courts Should Intervene and Remedy Five-Year Delays in Veterans’ Mental-Health Benefits Appeals
Jacob B. Natwick

1

PENNumbra publishes responses to The Inexorable Radicalization of Textualism

pennumbra_logo.jpg

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

This issue contains responses to The Inexorable Radicalization of Textualism by Jonathan R. Siegel.

In The Inexorable Radicalization of Textualism, Professor Jonathan Siegel argues that textualism differs fundamentally from intentionalism and purposivism, and that the gap between them gets wider with time. Siegel concludes that textualism inexorably radicalizes itself as textualists gradually realize that their axiom—the statutory text is the law—compels them to reject moderating influences, such as the “absurd results exception,” that accommodationists claim bring interpretive methods together. As a result, Siegel finds that textualism worsens over time, whereas intentionalism and purposivism are better able to improve themselves over time.

In Opportunistic Textualism, Professor Lawrence Solan argues that while Professor Siegel expresses reasonable concern about the consequences of carrying textualism to its logical extreme, “it is virtually impossible to be a textualist on the ground.” Because judges are inclined to relax their embrace of formalism in favor of other values, the extreme results that Siegel fears cannot be consistently realized. Solan looks to the example of radical textualism that Siegel offers: a rigid dissent by Judge Bybee from a Ninth Circuit decision correcting a clear statutory drafting error. Solan points out that Judge Bybee has been willing to look to legislative history, intent, and statutory purpose in a variety of other areas, and that even the staunchest textualists speak of legislative intent when resolving ambiguous statutes. Solan closes by acknowledging that formalism, like other canons of construction, has been used opportunistically to reach results driven primarily by ideology. Though he shares Professor Siegel’s concerns about some of the cases discussed in The Inexorable Radicalization of Textualism, he concludes that those results do not represent a radical or inevitable movement toward “law without mind.”

In Is Textualism Doomed?, Professor Ilya Somin counters Professor Siegel’s argument that textualism is ultimately doomed to irrelevance because its “inexorable radicalization . . . will cause it to lose the interpretation wars.” Somin contends that Siegel’s normative critique of textualism and positive prediction about its future are overdrawn. In Part I, Professor Somin shows that adherence to text does not inevitably lead to absurd and extreme results. In Part II, Somin claims that Siegel has understated the importance of textual ambiguity. He argues that when faced with an ambiguous text, resorting to extrinsic evidence of meaning is entirely consistent with textualist premises and may sometimes even be required by them. In Part III, Somin finds that textualism is here to stay, and will not “work itself pure” as Siegel has argued. Somin concludes by reasoning that because federal judges are not as interested in “grand theories of interpretation” and methodological consistency as academics are, they will not take textualism to its logical extreme.

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

0

Sidebar Publishes Response to “A Practical Solution to the Reference Class Problem”

Columbia Law Review’s Sidebar is pleased to announce the publication of a response to Professor Edward K. Cheng’s essay, A Practical Solution to the Reference Class Problem, by Professor James Franklin of the University of New South Wales.

In “A Practical Solution to the Reference Class Problem,” Edward K. Cheng surveys the ways in which the problem arises in legal contexts.  Cheng argues that a practical solution to the problem lies in modern “model selection” methods which decide on the appropriate complexity of a model.  James Franklin responds that a simpler area of recent statistics, the theory of feature selection methods, is more relevant.  Part I of the Essay argues that the correct reference class with which to compare a case is the set of cases which share with it all relevant features.  Part II discusses model complexity and argues that Cheng’s approach is workable, but that the statistical literature provides equally credible alternative approaches, based on smoothness instead of simplicity.