Category: Law Rev Forum

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Herrmann, Beck, and Burbank Debate Twombly and Iqbal

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In Plausible Denial:  Should Congress Overrule Twombly and Iqbal?, Mark Herrmann and James Beck debate with Professor Stephen Burbank whether the plausibility standard set out in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal is a proper “recalibration” of the pleading rules or an illegitimate “innovation” and whether Congress would be wise to overrule it. In their Opening Statement, Herrmann and Beck argue that the drafters of the Federal Rules intentionally left Rule 8 ambiguous. The creation of new federal rights, liberalization of class action rules, and massive escalation of discovery costs warranted the retirement of the “no set of facts” language from the Court’s earlier interpretation of Rule 8. In their view, the new course set by the Supreme Court is the proper one.

Check back weekly as the debate unfolds. 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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Minnesota Law Review Headnotes 94:1 (December 2009)

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The Minnesota Law Review is proud to announce the fall 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 Responses:

Peter Lee (UC Davis School of Law) responds to Pamela Samuelson‘s article, Are Patents on Interfaces Impeding Interoperability?. In Innovating Between and Within Technological Paradigms: A Response to Samuelson, Professor Lee builds on Professor Samuelson’s article to emphasize that the social costs and benefits of interface patents are highly context-specific. Invoking the concept of “technological paradigms,” Professor Lee argues that strong interface patents can promote significant technological advances in contested industries, but that ex post policy interventions may be necessary to curtail patents on industry standards.

Donald P. Judges (University of Arkansas) and Stephen J. Cribari (University of Minnesota Law School) respond to Ted Sampsell-Jones‘s article, Making Defendants Speak. In Speaking of Silence: A Response to Making Defendants Speak, Professors Judges and Cribari concentrate on explaining why they do not share Professor Sampsell-Jones’s underlying antipathy to the Fifth Amendment right to silence at trial. That antipathy, also frequently expressed by other commentators, is reflected in the article’s proposed rejection of Griffin v. California’s prohibition regarding adverse inferences from the defendant’s assertion of that right. The modern right to silence at trial, while perhaps more robust than framing-era practice, has emerged in a criminal justice system the scope and intrusiveness of which itself greatly exceeds framing-era experience. Griffin’s no-adverse-inference rule, and the right to silence at trial it helps to effectuate, are components of an interrelated cluster of protections, the centerpiece of which is the right to counsel, that reinforce the “test the prosecution” and “anti-inquisitorial” nature of today’s system. While neither theoretically tidy nor practically perfect, those protections at least offer a modicum of dignity which the authors believe many persons would want to have when faced with a powerful adversary in a dehumanizing process. Finally, the authors briefly note why they believe the purported benefits from the reforms proposed in Making Defendants Speak are illusory.

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Sidebar Publishes Responses to October Issue of the Columbia Law Review

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Columbia Law Review’s Sidebar is pleased to announce the publication of three responses in conjunction with the October issue of the Columbia Law Review.

The first piece is a response to Noah D. Zatz’s article, Managing the Macaw: Third-Party Harassers, Accommodation, and the Disaggregation of Discriminatory Intent by Professor Tristin K. Green of Seton Hall Law School.  In his Article Professor Zatz exploits the anomaly in Title VII doctrine of employer liability for third-party harassment to develop a new theory of employment discrimination law which relies on the ideas of membership causation and employer responsibility.  In the Response, Professor Green criticizes Professor Zatz’s discussion of the applicability of his account to employer liability for the bias of a subordinate.  She argues that by failing to distinguish between direct and vicarious liability Professor Zatz creates a risk that courts will limit employer liability based on considerations of “notice” and “feasibility” even where traditionally strict liability has been imposed.

The second is a response to Darrell A.H. Miller’s article Guns as Smut: Defending the Home-Bound Second Amendment by Professor Eugene Volokh of the UCLA School of Law.  In his Article, Professor Miller suggests treating the Second Amendment right to keep and bear arms for self-defense the same as the right to own and view adult obscenity under the First Amendment—a robust right in the home, subject to near-plenary restriction by elected government everywhere else.  In the Response Professor Volokh challenges the analogy between guns and obscenity.  He notes that obscenity is one of the least protected and marginal categories of speech, while the personal right to bear arms is at the core of the second amendment.

Finally, we have published a reply to Professor Volokh by Professor Miller in which he points out that much of Professor Volokh’s Response is a challenge to the accuracy of the analogy, rather than to arguments that underpin the analogy and independently justify the home-bound Second Amendment.

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The Yale Law Journal Online: Citizens Not United: The Lack of Stockholder Voluntariness in Corporate Political Speech

 

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The Yale Law Journal Online is pleased to announce the publication of Citizens Not United: The Lack of Stockholder Voluntariness in Corporate Political Speech by Elizabeth Pollman, a Stanford Law Fellow and former practitioner at Latham & Watkins LLP.  Pollman’s piece covers the potential for sweeping changes to corporate political speech law in light of the Supreme Court proceedings in Citizens United v. Federal Election Commission.

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The Yale Law Journal Online

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The Yale Law Journal is pleased to present its new online platform, The Yale Law Journal Online (http://www.yalelawjournal.org/). YLJ Online will continue the Journal‘s mission of providing accessible and substantive scholarship through the online medium. It offers original essays on timely and novel legal developments and responses to articles in the print Journal, as well as adapted lectures and recordings/podcasts of featured pieces.

When the Journal launched The Pocket Part in 2005, it was the first law review to establish an original online companion; as the Journal nears its 120th anniversary, YLJ Online represents the next step in that endeavor. The launch of YLJ Online‘s original content section features an essay by Hiro N. Aragaki, addressing the Hall Street v. Mattel litigation and manifest disregard, as well as responses by selected scholars to Michael Stokes Paulsen’s The Constitutional Power To Interpret International Law (118 Yale L.J. 1762 (2009)).

In the coming weeks, YLJ Online will present a variety of essays and features on marriage, property, and corporate law, as well as a selection of pieces from the Hon. J. Harvie Wilkinson III and other participants in its inaugural Washington, D.C. conference on the Supreme Court’s certiorari process. Among the many features that YLJ Online offers are Essays (4,000-6,000 words), Commentaries (under 2,000 words), Responses, adapted lectures and solicited pieces. More information can be found on the Submissions page (http://www.yalelawjournal.org/submissions.html). All YLJ Online publications are available and fully searchable through LexisNexis and Westlaw. The Journal also provides all YLJ Online pieces in PDF/reprint format, and podcasts on its website/iTunes for selected pieces. For questions regarding YLJ Online, please contact the Journal‘s Managing Online Editor, Jeff K. Lee, here.

Now available on YLJ Online:

Essay

Hiro N. Aragaki, The Mess of Manifest Disregard, 119 Yale L.J. Online 1 (2009). [HTML] [PDF]

Responses

Julian Ku, The Prospects for the Peaceful Co-Existence of Constitutional and International Law, 119 Yale L.J. Online 15 (2009). [HTML] [PDF]

Peter J. Spiro, Wishing International Law Away, 119 Yale L.J. Online 23 (2009). [HTML] [PDF]

Margaret E. McGuinness, Old W(h)ine, Old Bottles: A Response to Professor Paulsen, 119 Yale L.J. Online 31 (2009). [HTML] [PDF]

Robert Ahdieh, The Fog of Certainty, 119 Yale L.J. Online 41 (2009). [HTML] [PDF]

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Iowa Law Review, Volume 94, Issue 5 (July 2009)

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CRITICAL RACE THEORY SPEAKER SERIES
CRT 20: HONORING OUR PAST, CHARTING OUR FUTURE

Introduction

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Conference: Important Questions of Federal Law—Assessing the Supreme Court’s Case Selection Process

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The Yale Law School Supreme Court Advocacy Clinic and The Yale Law Journal Online, the forthcoming online platform of The Yale Law Journal, will host a half-day conference, “Important Questions of Federal Law”: Assessing the Supreme Court’s Case Selection Process, on September 18, 2009, at the National Press Club in Washington, D.C. The conference will consider the nature and causes of changes in the Supreme Court’s docket in recent years, as well as suggestions for reform of the certiorari process. The conference is made possible by the generous support of the Oscar M. Ruebhausen Fund. Practicing attorneys, judges, academics, and students are invited to attend. There is no charge for the conference, but space is limited, so all attendees must pre-register here. Breakfast and refreshments will be provided. If you are unable to attend, podcasts of conference sessions and downloadable papers from the panelists will be made available by Yale Law School’s main website. Select papers will also be published by The Yale Law Journal Online. Information on the conference can also be downloaded by clicking here.  For more information on The Yale Law Journal Online and the conference, please contact YLJ Online Editor Kathleen Claussen here.

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Iowa Law Review, Volume 94, Issue 4 (May 2009)

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Articles

Saving Facebook
James Grimmelmann

Attempt by Omission
Michael T. Cahill

Strange Bedfellows: Criminal Law, Family Law, and the Legal Construction of Intimate Life
Melissa Murray

Insider Trading and the Gradual Demise of Fiduciary Principles
Donna M. Nagy

Notes

Corporate Liability for Violations of Labor Rights Under the Alien Tort Claims Act
Wesley V. Carrington

The Right and Wrong Ways to Sell A Public Forum
John C. Crees

Searching for a Solution: A Proposed Change to the Code of Iowa Chapter 808A
Morgan N. Engling

Nonprofits: Are You at Risk of Losing Your Tax-Exempt Status?
Gina M. Lavarda

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Sidebar Publishes Essay on Remedial Rationing

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Columbia Law Review‘s Sidebar is pleased to announce the publication of Melendez-Diaz v. Massachusetts, Rodriguez v. City of Houston, and Remedial Rationing by Professor Jennifer Laurin of the University of Texas School of Law.

In her Essay, Professor Laurin identifies a trend in recent Supreme Court jurisprudence to restrict the enforcement of criminal procedure rights to either criminal defense or civil rights litigation, something she calls remedial rationing. Using Melendez-Diaz v. Massachusettsa criminal appeal decided by the Supreme Court last termand Rodriguez v. City of Houstona civil rights suit which the author participated in litigatingas examples, Professor Laurin discusses the prospects for each type of remedy to regulate law enforcement conduct.  She concludes that neither regime can adequately protect criminal defendants’ rights on its own, and that the two regimes work together in important ways.

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Sidebar Publishes Companion Piece to Federalization Snowballs

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Columbia Law Review‘s Sidebar is pleased to announce the publication of a companion piece to Federalization Snowballs:  The Need for National Action in Medical Malpractice Reform by Professor Abigail Moncrieff of Boston University.

In her Essay, Professor Moncrieff discussed the way in which federal healthcare programs have effected states incentives by allowing states to externalize some of the costs of their malpractice policies, resulting in a need for federal regulation in that area.  She called this a “federalization snowball”—federal intervention through spending programs creates a need for further federal regulation in areas that are traditionally state functions.

In her companion piece, A Closer Look at the Federalization Snowball, Professor Moncrieff explores the scope of the problem of federalization snowballs and its historical and theoretical underpinnings in a debate over the interpretation of the Spending Clause.