Category: Law Rev Forum


The Harvard Law Review Online Forum: Responding to Rebecca Tushnet, Worth a Thousand Words: The Images of Copyright, 125 Harv. L. Rev. 683 (2012)

Harvard Law Review

Online Forum

More Than a Thousand Words in Response to Rebecca Tushnet

Christina Spiesel :: In this response to Professor Rebecca Tushnet, Professor Christina Spiesel argues that the contrast Tushnet uses to differentiate pictures and words poses problems in view of the challenges posed by the Internet. Online, all expression is representation made of the same material and everything is first a picture or a sound behind a picture, so the different status of words and pictures requires further sorting. Professor Spiesel complicates the conversation Professor Tushnet began by showing that copyright law is now at the center of very large debates about the Internet and our public lives.  READ MORE




The Harvard Law Review Online Forum: Responding to Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379 (2011)

Harvard Law Review

Online Forum

Hollow Hopes and Exaggerated Fears: The Canon/Anticanon in Context

Mark A. Graber :: The conventional constitutional canon and constitutional anticanon promote courts as powerful institutions. But neither the canonical nor the anticanonical constitutional decisions by the Supreme Court have produced the wonderful results or horrible evils sometimes attributed to them. In many cases, elected officials made cotemporaneous constitutional decisions that had as much influence as the celebrated or condemned judicial rulings. More often than not, judicial rulings matter by changing the political dynamics than by directly changing public policy. READ MORE



The Harvard Law Review Online Forum: Responding to Dan M. Kahan, Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law, 125 Harv. L. Rev. 1 (2011)


Harvard Law Review

Online Forum


Democracy’s Distrust: Contested Values and the Decline of Expertise

Suzanna Sherry :: In this response to Professor Dan Kahan’s Foreword, Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law, Professor Suzanna Sherry argues that while Kahan accurately describes the contemporary “neutrality crisis” and the consequent popular mistrust of the Supreme Court, he has mistaken its cause and thus proposes the wrong solution. READ MORE

“I Couldn’t See It Until I Believed It”: Some Notes on Motivated Reasoning in Constitutional Adjudication

Mark Tushnet :: In this response to Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law, Professor Mark Tushnet raises two potential problems with Professor Dan Kahan’s argument that the Supreme Court can restore public faith in its neutrality by avoiding “motivated reasoning” and instead writing opinions that affirm the values of citizens with strikingly different cultural orientations. READ MORE



University of Toronto Law Journal – Volume 61, Number 2 /2011

University of Toronto Law Journal –  Volume 61, Number 2 /2011

Special Issue: Understanding Law on its Own Terms: Essays on the Occasion of Ernest Weinrib’s Killam Prize

In 2009, the internationally leading scholar of private law and Canada’s pre-eminent legal theorist, Ernest Weinrib, was awarded the Killam Prize in the social sciences, the country’s highest honor for scholarly career achievement.  On the occasion of the prize, Weinrib presented a public lecture on Private Law and Public Right, developing a new set of ideas.  In this special issue, Weinrib’s lecture is published together with pieces by former students of his who have made important contributions to private law theory.

Editor’s Note
Arthur Ripstein

Ernie’s Three Worlds
Bruce Chapman

Private Law And Public Right
Ernest J Weinrib

Formalism In Music And Law
Allan Beever

The Idea Of Consideration
Peter Benson

Private Law And Kantian Right
Alan Brudner

Legal Positivism As An Idea About Morality
Martin Stone


University of Toronto Law Journal – Volume 61, Number 1 /2011

University of Toronto Law Journal – Volume 61, Number 1, 2011

Empire And International Law: The Real Spanish Contribution
Martti Koskenniemi

Distinctions Of Power And The Power Of Distinctions: A Response To Professor Koskenniemi
Arthur Ripstein


In June 2010, the Air India Commission released its long-awaited report on the investigation of the 1985 bombing and efforts taken in Canada since that time to prevent similar terrorist attacks.  In this focus feature, experts address major issues of terrorism financing and the regulation of charities in light of the Commission’s report and other recent developments.

The Air India Report And The Regulation Of Charities And Terrorism Financing
Kent Roach

Combating Terrorist Financing: Is Canada’s Legal Regime Effective?
Anita I. Anand

Charities And Terrorist Financing
David G. Duff

Choices And Approaches: Anti-Terrorism Law And Civil Society In The United States And The United Kingdom After September 11
Mark Sidel


A Hegelian Criminal Law
Stephen P. Garvey

Ending Impunity: Critical Reflections On The Prosecution Of Heads Of State
Renu Mandhane

Book Review

The Transformation of the Supreme Court of Canada: An Empirical Examination( DONALD R SONGER )
Benjamin Alarie


Iowa Law Review, Volume 96, Issue 2 (January 2011)

Iowa Law Review


The Coercion of Trafficked Workers
Kathleen Kim

IP Misuse as Foreclosure
Christina Bohannan

Consent to Retaliation: A Civil Recourse Theory of Contractual Liability
Nathan B. Oman

Automation and the Fourth Amendment
Matthew Tokson


No Middle Ground? Reflections on the Citizens United Decision
Randall P. Bezanson


(Potentially) Resolving the Ever-Present Debate over Whether Noncitizens in Removal Proceedings Have a Due-Process Right to Effective Assistance of Counsel
Walter S. Gindin

Princo, Patent Pools, and the Risk of Foreclosure: A Framework for Assessing Misuse
Phillip W. Goter

Holden Caulfield Grows Up: Salinger v. Colting, the Promotion-of-Progress Requirement, and Market Failure in a Derivative-Works Regime
John M. Newman

Is Senator Grassley Our Savior?: The Crusade Against “Charitable” Hospitals Attacking Patients for Unpaid Bills
Amanda W. Thai


Iowa Law Review, Volume 96, Issue 1 (November 2010)

Iowa Law Review


Real Copyright Reform
Jessica Litman

Policy Reversal on Reverse Payments: Why Courts Should Not Follow the New DOJ Position on Reverse-Payment Settlements of Pharmaceutical Patent Litigation
Henry N. Butler & Jeffrey Paul Jarosch

The Uneasy Case for the Inside Director
Lisa M. Fairfax

Judging Myopia in Hindsight: Bivens Actions, National Security Decisions, and the Rule of Law
Peter Margulies

Tort Liability and the Original Meaning of the Freedom of Speech, Press, and Petition
Eugene Volokh


Automobile Bankruptcies, Retiree Benefits, and the Futility of Springing Priorities in Chapter 11 Reorganizations
Daniel Keating


Out-of-State Civil Unions in Iowa After Varnum v. Brien: Why the State of Iowa Should Recognize Civil Unions as Marriages
Drew A. Cumings-Peterson

Al-Kidd v. Ashcroft: Clearly Established Confusion
James E. Mosimann

Sexting: How the State Can Prevent a Moment of Indiscretion from Leading to a Lifetime of Unintended Consequences for Minors and Young Adults
Elizabeth M. Ryan

The FLSA Antiretaliation Provision: Defining the Outer Contours of What Constitutes an Employee Complaint
Erin M. Snider


University of Toronto Law Journal – Volume 60, Number 4 /2010

University of Toronto Law JournalVolume 60, Number 4, Fall 2010

Investing In Democracy? Political Process And International Investment Law
David Schneiderman

Is Systemic Risk Relevant To Securities Regulation?
Anita I. Anand

If Philosophical Legal Ethics Is The Answer, What Is The Question?

Alice Woolley

Three Issues In Legal Ethics
Daniel Markovits

Methodology And Perspective In The Theory Of Lawyers’ Ethics: A Response To Professors Woolley And Markovits
W. Bradley Wendel

Philosophical Legal Ethics And Personal Integrity
Tim Dare

Language And Judgment’s Reach: Reflecting On Limits On Rights
Robert Leckey

Sexual Citizens: The Legal and Cultural Regulation of Sex and Belonging by Brenda Cossman, reviewed by Rebecca Johnson

Current issue will also be available through Westlaw, LexisNexis/Quicklaw, Scholars Portal and Project Muse.


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

Iowa Law Review


 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


 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


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…