Category: Law Rev (Harvard)


FAN.1 (First Amendment News)

From time to time, I will post some First Amendment news items that might otherwise escape the attention of free expression enthusiasts.  It may be about a controversy or brief or new book or article or conference or what have you.  If you wish to send along your own newsworthy item for consideration, drop my an e-mail.  With that, here is my first dollop of news:

  • On February 15th the Harvard Law Review will host a conference on “Freedom of the Press” in celebration of the 50th anniversary of New York Times Co. v. Sullivan.  Participants include: Mark Tushnet (Harvard), Stuart Benjamin (Duke), Sonja R. West (U. Ga.), RonNell Andersen Jones (BYU), David Anderson (U. TX), Marvin Ammori (New America Foundation), Marjorie Heins (Free Expression Policy Project), Jonathan Zittrain (Harvard), Rebecca Tushnet (Georgetown), Caroline Corbin (U. Miami), Jack Balkin (Yale), Yochai Benkler (Harvard), and Dawn Nunziato (GWU).
  • Speaking of NYT v. Sullivan, Lee Levine (a noted First Amendment media lawyer) and Steve Wermiel (a professor at American University Law School) have just published The Progeny: Justice William Brennan’s Fight to Save New York Times v. Sullivan (American Bar Association, 2014). Check out my SCOTUSblog interview with the authors.
  • Recently, the Minnesota Law Review published a thought-proving article titled “Speech Engines” by James Grimmelmann (U. MD Law).  It is one of the best pieces of scholarship I have seen concerning the regulatory debates over just how the law – of copyright, trademark, defamation, privacy and of the First Amendment – should treat Google’s search engines.
  • Gabriel Schoenfeld, writing in the Weekly Standard, just reviewed Floyd Abrams’ latest book, Friend of the Court: On the Front Lines with the First Amendment (Yale University Press, 2013).  (For Mr. Abrams’ views on McCullen v. Coakley (the Mass. abortion-protest case now before the Court), see  Jonathan H. Adler’s post over at the Volokh Conspiracy.)
  • This June Yale Law School Dean Robert Post will release his latest book, Citizens Divided: Campaign Finance Reform and the Constitution (Harvard University Press, 234 pp., $25.00).  The book is an outgrowth of Post’s 2013 Tanner Lectures at Harvard.  Here is a little excerpt from the publisher’s blurb: “Defenders of the First Amendment greeted the ruling with enthusiasm, while advocates of electoral reform recoiled in disbelief. Robert Post offers a new constitutional theory that seeks to reconcile these sharply divided camps.” Post’s text is followed by commentaries by Pamela S. Karlan, Lawrence Lessig, Frank I. Michelman, and Nadia Urbinati.

Harvard Law Review Online Forum: Responding to Judge Guido Calabresi, Judge Dennis Davis, Rosalind Dixon, Dieter Grimm, Patrick O. Gudridge, Martha Minow, Margaret Jane Radin, In Tribute: Frank I. Michelman, 125 Harv. L. Rev. 879 (2012)


Harvard Law Review

Online Forum

Provocation: Law’s Republics

Vlad Perju :: I begin with three premises: First, the relevance for any polity of the exercises in self-government of other political communities, as encoded in their constitutional laws and cultures, is not self evident and must therefore be justified. Second, that justification must place domestic and foreign law within a unitary framework by reference to which the comparativist’s choices can be defended. Third, no project of comparative constitutional law, and perhaps comparative law generally, can withstand scrutiny unless it articulates, or it signs on to some articulation, of such a framework. By placing comparative constitutional law within the larger constitutional democratic project of government by law, Professor Frank Michelman’s work gives us a framework for how the constitutional mind can approach — or “go visiting,” as Hannah Arendt put it — the experiments in collective self-determination of other free communities of equals.  READ MORE

Provocation: Frank’s Way

Robert Post :: I know that Dean Martha Minow would like me to begin with a provocation, but I can’t help beginning instead with an acknowledgment. Throughout my career as a legal academic, I have always had two guiding lights, two pole stars whose integrity and depth I have trusted to steer me in the right direction. One is Owen Fiss, and the other is Frank Michelman.  READ MORE

Provocation: Everyone is a Philospher!

T.M. Scanlon :: In the first chapter of his book, Reading Obama, Professor James Kloppenberg offers an account of the intellectual climate at Harvard Law School during the years in which President Obama was here as a student, describing both the influential figures at the school and the writers and ideas they were discussing. Unsurprisingly, Professor Frank Michelman appears prominently on the first list.  READ MORE

Provocation: The Comparative Turn: Accident, Coincidence, or Fate?

Katharine G. Young :: Why would a long-standing leader in the field of American constitutional law turn his intellectual attention to another constitutional system? And why choose South Africa? For almost two decades, Frank Michelman’s contribution to the field of comparative constitutional law has been much like his contribution to constitutional theory and constitutional law in general: soaring, generous, always in dialogue with others, and yet always uniquely his own. In this Provocation, I examine: what accounts for the comparative turn?  READ MORE



Harvard Law Review, 125: 8 (2012)


Harvard Law Review

Volume 125 · June 2012 · Number 8


In Memoriam: Bernard Wolfman
Howard Abrams, William D. Andrews, N. Jerold Cohen, Michael A. Fitts, Justice Ruth Bader Ginsburg, Martha Minow, Daniel N. Shaviro

Spatial Diversity
Nicholas O. Stephanopoulos

The Undead Constitution
Michael C. Dorf

Developments in the Law — Presidential Authority

Ninth Circuit Holds that Traffic Citation Is Not an “Intervening Arrest” Under Section 4A1.2(A)(2) of the Guidelines. — United States v. Leal-Felix, 665 F.3d 1037 (9th Cir. 2011) (en banc).

Federal Circuit Applies New Factors in Deciding Patentability of a Computer Program. — Ultramercial, LLC v. Hulu, LLC, 657 F.3d 1323 (Fed. Cir. 2011), reh’g and reh’g en banc denied, No. 2010-1544, 2011 U.S. App. LEXIS 25055 (Fed. Cir. Nov. 18, 2011).

Ninth Circuit Upholds First Trial Conviction Under § 1831 of the Economic Espionage Act of 1996. — United States v. Chung, 659 F.3d 815 (9th Cir. 2011), cert. denied, No. 11-1141, 2012 WL 929750 (U.S. Apr. 16, 2012).

Eleventh Circuit Rejects Challenge to Georgia’s “Beyond a Reasonable Doubt” Standard for Defendants’ Mental Retardation Claims. — Hill v. Humphrey, 662 F.3d 1335 (11th Cir. 2011) (en banc).

D.C. Circuit Holds that Government Intelligence Reports Are Entitled to a Presumption of Regularity. — Latif v. Obama, 666 F.3d 746 (D.C. Cir. 2011).

Ninth Circuit Holds that Compensation for Blood Stem Cell Transplant Procedure Does Not Violate the National Organ Transplant Act. — Flynn v. Holder, No. 10-55643, 2012 WL 1001300 (9th Cir. Mar. 27, 2012).

Recent Publications


The Harvard Law Review Online Forum: Responding to Orin S. Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 Harv. L. Rev. 476 (2011) and Christopher Slobogin, An Original Take on Originalism,125 Harv. L. Rev. F. 14 (2011)

Harvard Law Review

Online Forum

Defending Equilibrium-Adjustment

Orin S. Kerr :: I thank Professor Christopher Slobogin for responding to my recent Article, An Equilibrium-Adjustment Theory of the Fourth Amendment. My Article contended that much of today’s Fourth Amendment law can be understood as the product of equilibrium-adjustment. When changing technology and social practice threaten to considerably expand or restrict government power, courts tighten or loosen Fourth Amendment restrictions to restore the status quo level of government power. That is, courts account for changing technology by adjusting rules in an effort to restore the prior equilibrium of government power. Existing Fourth Amendment doctrine therefore reflects many decades of equilibrium-adjustment over time. READ MORE



Symposium: The New Private Law


Harvard Law Review

Online Forum


Responding to Shyamkrishna Balganesh, The Obligatory Structure of Copyright Law: Unbundling the Wrong of Copying

Copyright Is Not About Copying
Abraham Drassinower

Unifying Copyright: An Instrumentalist’s Response to Shyamkrishna Balganesh
Richard A. Epstein

Responding to Henry E. Smith, Property as the Law of Things

Exclusion and Private Law Theory: A Comment on Property as the Law of Things
Eric R. Claeys

Property as Modularity
Thomas W. Merrill

Responding to Stephen A. Smith, Duties, Liabilities, and Damages

Comments on Stephen Smith’s Duties, Liabilities, and Damages
Emily Sherwin

Responding to Benjamin C. Zipursky, Palsgraf, Punitive Damages, and Preemption

New Private Law Theory and Tort Law: A Comment
Keith N. Hylton

Method and Morality in the New Private Law of Torts
John Oberdiek


Harvard Law Review, 125: 7 (2012)


Harvard Law Review

Volume 125 · May 2012 · Number 7


Regulation for the Sake of Appearance
Adam M. Samaha


Introduction: Pragmatism and Private Law
John C.P. Goldberg

The Obligatory Structure of Copyright Law: Unbundling the Wrong of Copying
Shyamkrishna Balganesh

Property as the Law of Things
Henry E. Smith

Duties, Liabilities, and Damages
Stephen A. Smith

Palsgraf, Punitive Damages, and Preemption
Benjamin C. Zipursky

The Perils of Fragmentation and Reckless Innovation

Independence, Congressional Weakness, and the Importance of Appointment: The Impact of Combining Budgetary Autonomy with Removal Protection

Ninth Circuit Holds Female Plaintiffs Brought Valid Excessive Force Claims Against Police Officers Who Tased Them. — Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011) (en banc).

Second Circuit Declines to Extend Ricci v. DeStefano. — Briscoe v. City of New Haven, 654 F.3d 200 (2d Cir. 2011).

Ninth Circuit Affirms 262-Month Sentence Based on Uncharged Murder. — United States v. Fitch, 659 F.3d 788 (9th Cir. 2011).

Ninth Circuit Holds that Teacher Speech in School-Related Settings Is Necessarily Government Speech. — Johnson v. Poway Unified School District, 658 F.3d 954 (9th Cir. 2011).

Congress Restricts Guantánamo Transfers, Prompting Constitutional Signing Statement Objection. — National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, 125 Stat. 1298 (2011) (to be codified in scattered sections of the U.S. Code).

>Recent Publications


The Harvard Law Review Online Forum: Responding to Jody Freeman and Jim Rossi, Agency Coordination in Shared Regulatory Space, 125 Harv. L. Rev. 1131 (2012)

Harvard Law Review

Online Forum

The More the Merrier: Multiple Agencies and the Future of Administrative Law Scholarship

Eric Biber :: Multiple agencies are all the rage in administrative law. As Professors Jody Freeman and Jim Rossi note, the traditional focus in administrative law has been on investigating how individual agencies function, and how interactions with the White House, Congress, and the courts shape (for better or for worse) their decisionmaking. In contrast, the newer scholarship looks at how multiple agencies interact. Some of that scholarship focuses on particular areas of law, calling on policymakers to consider using a combination of multiple agencies, rather than one single agency, to solve particular policy problems. Other scholarship is more cross-cutting, trying to identify larger patterns that run across substantive areas, describing how the existence of multiple agencies and their interactions might shape agency decisionmaking and what we might (or might not) want to do about it. Freeman and Rossi’s piece, though it draws on a particular case study, has a broader ambition and makes an important and useful contribution to this second category. READ MORE



Harvard Law Review, 125: 6 (2012)


Harvard Law Review

Volume 125 · April 2012 · Number 6


Inventing the “Traditional Concept” of Sex Discrimination
Cary Franklin

Law and the President
Richard H. Pildes

Crime and Law: An American Tragedy
Robert Weisberg

Everlasting Software

Improving the Carceral Conditions of Federal Immigrant Detainees

Sixth Circuit Holds that Defense Counsel’s Nap During a Cross-Examination Does Not Clearly Violate the Sixth Amendment. — Muniz v. Smith, 647 F.3d 619 (6th Cir. 2011).

Second Circuit Finds Affirmative Speech Condition on Leadership Act Funds Unconstitutional. — Alliance for Open Society International v. U.S. Agency for International Development, 651 F.3d 218 (2d Cir. 2011).

New Jersey Supreme Court Uses Psychological Research to Update Admissibility Standards for Out-of-Court Identifications. — State v. Henderson, 27 A.3d 872 (N.J. 2011).

Third Circuit Holds that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 Authorizes Immigration Detention Only for a “Reasonable Period of Time.” — Diop v. ICE/Homeland Security, 656 F.3d 221 (3d Cir. 2011).

Ninth Circuit Requires Continued Federal Oversight of School District. — Fisher v. Tucson Unified School District, 652 F.3d 1131 (9th Cir. 2011).

Second Circuit Holds that the First Sale Doctrine Does Not Apply to Imported Works Manufactured and First Sold Abroad. — John Wiley & Sons, Inc. v. Kirtsaeng, 654 F.3d 210 (2d Cir. 2011).

Obama Administration Argues that U.S. Military Action in Libya Does Not Constitute “Hostilities.” — Libya and War Powers: Hearing Before the Senate Committee on Foreign Relations, 112th Cong. 7–40 (2011) (statement of Harold Koh, Legal Adviser, U.S. Department of State).

United Kingdom Adds Barrier to Private Prosecution of Universal Jurisdiction Crimes. — Police Reform and Social Responsibility Act, 2011, c. 13 (U.K.).

Recent Publications


Harvard Law Review Online Forum


Harvard Law Review

Online Forum

Reaction: Salvaging Perry

Andrew Koppelman :: The Ninth Circuit, in Perry v. Brown, deftly avoided forcing the Supreme Court’s hand on the big claim that the Constitution requires recognition of same-sex marriage — a claim likely to be rejected now, though perhaps not a few years from now. Instead, it held that California’s Proposition 8, which stripped same-sex couples of their right to have their unions called “marriages,” was unconstitutional because it reflected a bare desire to harm a politically unpopular group.  READ MORE

Reaction: Splitting the Difference: Reflections on Perry v. Brown

Jane S. Schacter :: The latest chapter in California’s long running debate over marriage equality began when the voters passed Proposition 8 in 2008. Several months earlier, the California Supreme Court had interpreted the state constitution to protect the right of same-sex couples to marry, and Prop 8 amended the constitution to eliminate that right.  READ MORE

Reaction: A Marriage is a Marriage is a Marriage: The Limits of Perry v. Brown

Robin West :: The Ninth Circuit’s decision in Perry v. Brown, authored by Judge Reinhardt, has been widely lauded in the last few weeks by marriage equality proponents for its creative minimalism. In keeping with commentators’ expectations, the court found a way to determine that California’s Proposition 8 violated the U.S. Constitution’s Equal Protection Clause, namely that the provision took away an entitlement that had previously been enjoyed by same-sex couples — the right to the appellation of one’s partnership as a “marriage” — for no rational reason.  READ MORE




Harvard Law Review, 125: 5 (2012)


Harvard Law Review

Volume 125 · March 2012 · Number 5


Agency Coordination in Shared Regulatory Space
Jody Freeman and Jim Rossi

The Free Market and the Prison
James Q. Whitman

Deception as an Antitrust Violation

Delaware Court of Chancery Imposes Revlon Duties on Board of Directors in Mixed Cash-Stock Strategic Merger. — In re Smurfit-Stone Container Corp. Shareholder Litigation, No. 6164-VCP, 2011 WL 2028076 (Del. Ch. May 24, 2011).

Federal Circuit Holds that Agency Was Arbitrary and Capricious in Following a Government Accountability Office Recommendation. — Turner Construction Co. v. United States, 645 F.3d 1377 (Fed. Cir. 2011).

Southern District of New York Rejects Proposed Google Books Settlement Agreement. — Authors Guild v. Google Inc., 770 F. Supp. 2d 666 (S.D.N.Y. 2011).

Second Circuit Finds Issuer’s Failure to Disclose Loan Impairments Immaterial as a Matter of Law. — Hutchison v. Deutsche Bank Securities Inc., 647 F.3d 479 (2d Cir. 2011).

Leahy-Smith America Invents Act Revises U.S. Patent Law Regime. — Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284 (2011) (to be codified in scattered sections of 35 U.S.C.).

Connecticut Enacts Paid Sick Leave Act. — 2011 Conn. Legis. Serv. P.A. 11-52 (S.B. 913) (West).

Recent Publications