Category: Law Rev Forum


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

Iowa Law Review


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


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


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


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),


Minnesota Law Review Headnotes 94:2 (May 2010)


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.


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


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.


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

Iowa Law Review


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


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


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

Iowa Law Review


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


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


PENNumbra publishes responses to The Inexorable Radicalization of Textualism


PENNumbra‘s featured works are now available at

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.


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.


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

The Yale Law Journal

January 2010 | Volume 119, Issue 4

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

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

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


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.

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)
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)
John Elwood (Vinson & Elkins LLP)
Orin Kerr (George Washington University Law School)
Patricia Millett (Akin Gump LLP)
Judith Resnik (Yale Law School)


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


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),