Category: Law Rev Forum

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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

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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

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PENNumbra publishes responses to The Inexorable Radicalization of Textualism

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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.

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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.

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The Yale Law Journal, Vol. 119, Issue 4 & Forthcoming Supreme Court Conference

The Yale Law Journal

January 2010 | Volume 119, Issue 4

ARTICLES
Antibankruptcy
Douglas G. Baird & Robert K. Rasmussen
648
Fourth Amendment Seizures of Computer Data
Orin S. Kerr
700
FEATURE
American Needle v. NFL: An Opportunity
To Reshape Sports Law

Michael A. McCann
726
NOTE
Strategic or Sincere? Analyzing Agency Use of
Guidance Documents

Connor N. Raso
782
COMMENTS
Suspending the Writ at Guantánamo: Take III? 825
Constitutional Avoidance Step Zero 837


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On Tuesday, March 23, 2010, The Yale Law Journal Online will join with the Yale Law School Supreme Court Advocacy Clinic to host the concluding segment of “Important Questions of Federal Law: Assessing the Supreme Court’s Case Selection Process.”  The panel will bring together federal judges, members of the legal academia, and practitioners to discuss potential reforms to the Supreme Court’s certiorari process. All events will be held at Yale Law School’s Sterling Law Building in New Haven, CT. Please click here for more information.

IMPORTANT QUESTIONS OF FEDERAL LAW
Yale Law School | New Haven, CT | March 23, 2010

Panel I: The Judge’s Perspective: Is the Court Taking the “Right” Cases?
4:10pm‐5:30pm, Room 129

Moderator: Linda Greenhouse (Yale Law School)
Panelists:
The Honorable José Cabranes (2d Cir.)
Drew Days (Yale Law School)
The Honorable Brett Kavanaugh (D.C. Cir.)
The Honorable Sandra Lynch (1st Cir.)

Panel II: The Practitioners’ Perspective: What Makes An Issue “Important” to the Court?
5:40pm‐6:55pm, Room 127

Moderator: Charles Rothfeld (Mayer Brown LLP and Yale Law School)
Panelists:
John Elwood (Vinson & Elkins LLP)
Orin Kerr (George Washington University Law School)
Patricia Millett (Akin Gump LLP)
Judith Resnik (Yale Law School)

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The Yale Law Journal Online: The Justice as Commissioner: Benching the Judge-Umpire Analogy

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The approach of viewing federal judges in the United States as baseball umpires has gained traction with the recent nomination processes of the Supreme Court, and sparked debate in both legal academia and across the political spectrum. The Yale Law Journal Online is therefore pleased to announce the publication of The Justice as Commissioner: Benching the Judge-Umpire Analogy by Aaron Zelinsky (Yale Law School). Mr. Zelinsky offers a timely assessment and critique of this analogy, as well as alternatives to envisioning the role of the Supreme Court.

Preferred citation: Aaron Zelinsky, The Justice as Commissioner: Benching the Judge-Umpire Analogy, 119 YALE L.J. ONLINE 113 (2010), http://yalelawjournal.org/2010/03/03/zelinsky.html.

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Sidebar Publishes Second in Series of Essays on Immigration Law

Sidebar is pleased to announce the publication of the second in our series of essays on immigration law, “Building Capacity for the Transnational Regulation of Migration” by Professor Cristina Rodríguez, currently visiting at Harvard Law School.

In this piece Professor Rodríguez argues that immigration cannot be addressed solely through unilateral regulation; rather, because migration is inherently international its management requires engagement with other governments.  She identifies some of the existing mechanisms of transnationalism in the U.S.-Mexico relationship and offers initial suggestions for their development.

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The Yale Law Journal Online: Richard Lazarus and Sanford Levinson on the Supreme Court’s Certiorari Process

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Concluding its series on proposed reforms to the certiorari process, The Yale Law Journal Online is pleased to present pieces by Richard Lazarus of the Georgetown Law Center and Sanford Levinson of the University of Texas Law School.  Lazarus and Levinson approach the issue of the Supreme Court’s docket composition through a variety of perspectives, and shed light on the ongoing debate over whether the declining number of cases before the Court presents a problem for the American judicial system.

The Yale Law Journal Online and the Yale Law School Supreme Court Advocacy Clinic will be a hosting a second conference on the subject on March 23, 2010 at Yale Law School in New Haven, Connecticut.  Further details will be provided shortly.

Preferred Citations:

Richard J. Lazarus, Docket Capture at the High Court, 119 Yale L.J. Online 89 (2009), available at http://yalelawjournal.org/2010/01/24/lazarus.html.

Sanford Levinson, Assessing the Supreme Court’s Current Caseload: A Question of Law or Politics?, 119 Yale L.J. Online 99 (2010), available at http://yalelawjournal.org/2010/02/01/levinson.html.

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Iowa Law Review, Volume 95, Issue 1 (November 2009)

Iowa Law Review

Articles

Juvenile Justice: The Fourth Option
Christopher Slobogin & Mark R. Fondacaro

Testing Modern Trademark Law’s Theory of Harm
Mark P. McKenna

Ignorance Is Effectively Bliss: Collateral Consequences, Silence, and Misinformation in the Guilty-Plea Process
Jenny Roberts

Formalism and Pragmatism in Ruins (Mapping the Logics of Collapse)
Pierre Schlag

Notes

Making Taxes More Certain: Iowa State Legislators’ Guide to Combined Reporting
Lindsay C. McAfee

Rescuecom Corp. v. Google Inc.: A Conscious Analytical Shift
Jessica A.E. McKinney

An Iowa Immigration Raid Leads to Unprecedented Criminal Consequences: Why ICE Should Rethink the Postville Model
Cassie L. Peterson

Clearing the Air: Analyzing the Constitutionality of the Iowa Smokefree Air Act’s Gaming-Floor Exemption
Kevin D. Sherlock

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The Yale Law Journal Online: Judge J. Harvie Wilkinson’s “If It Ain’t Broke . . .”

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The Yale Law Journal Online is pleased to present its last publication of 2009.  The Hon. J. Harvie Wilkinson III addresses the recent calls to reform the Supreme Court’s certiorari process in this Essay, which cautions against reforms that may cause significant collateral damage to the American judicial system.  Judge Wilkinson addresses the recent contraction of the Supreme Court’s docket, challenging the notion that a smaller docket is cause for alarm.  He also challenges a number of the proposals on the table, invoking a historical perspective to argue against tampering with the fundamental structure and role of the Court.  These arguments continue Judge Wilkinson’s previous remarks on the subject at the Yale Law School-sponsored conference, “Important Questions of Federal Law.”

Preferred Citation: J. Harvie Wilkinson III, If It Ain’t Broke . . ., 119 YALE L.J. ONLINE 67 (2009), available at http://yalelawjournal.org/2009/12/16/wilkinson.html.