Tuesday, September 30, 2003
off schedule
Journals that are running late:
- Quinnipiac Health Law Journal (2002 issue came out in September 2003).
- University of Miami Law Review (January 2003 issue came out in September 2003)
- Yale Journal of Law and Feminism (first issue of last year's volume came out in September 2003)
law review headlines
The Summer 2003 issue of the Administrative Law Review has an article by Andrew P. Morriss, Roger E. Meiners, and Andrew Dorchak entitled Between a Hard Rock and a Hard Place: Politics, Midnight Regulations and Mining.
The Fall 2003 issue of the Real Estate Law Journal has an article by Ian C. Lindars entitled The Future of the National Environmental Policy Act.
The Spring 2003 issue of the Rutgers Law Journal has articles from a symposium entitled The Osceola.
The Fall 2003 issue of the Real Estate Law Journal has an article by Ian C. Lindars entitled The Future of the National Environmental Policy Act.
The Spring 2003 issue of the Rutgers Law Journal has articles from a symposium entitled The Osceola.
Monday, September 29, 2003
law review headlines
The Winter 2003 issue of the Health Matrix has articles from a symposium entitled Issues in Bioterrorism.
Friday, September 26, 2003
review of a recent article
Steph reported on Tuesday that a new volume of the Cornell Law Review has just been published; I've now had an opportunity to read one of the articles therein: Jonathan Remy Nash, "Examining the Power of Federal Courts to Certify Questions of State Law," 88 Cornell L. Rev. 1672 (2003). I had come across the article independently while doing research for a paper that I'm trying to work on about state law in federal court.
The thesis of Nash's article is that certification rests on a shaky jurisdictional basis. Here's his reasoning. Jurisdiction can be thought of as unitary or binary. This is a fancy way of saying whether we're talking about one or two cases. So when one court considers another case as precedent, that embraces the "binary conception," but when a case is appealed from a lower to higher court, that's the "unitary conception." So far, not too controversial.
Then Nash asks under which conception should certification be classified. He argues that it might be thought of as either. But next he reasons that, if unitary, certification is not constitutional, because that would mean that state courts are exercising the federal judicial power. On the other hand, if binary, there's no constitutional problem, but certification would seem to be contrary to the statutory grant of diversity jurisdiction (as understood through those Supreme Court cases that say that a federal court generally should not abstain solely because a difficult issue of state law is involved).
This is a weighty and well-researched article, but I do not find the central part of the argument persuasive. First, accepting the unitary/binary paradigm, I think certification surely falls in the unitary category. Second, I don't think this creates a constitutional problem because the state court is not exercising "the federal judicial power." As Judge Selya has observed: "When a question is certified, the responding court does not assume jurisdiction over the parties or over the subject matter. It does not assume the power to adjudicate a dispute between the parties or to enforce any judgment. Only the certifying court asserts real judicial power--'the right to determine actual controversies arising between adverse litigants'--over the parties." Bruce M. Selya, "Certified Madness: Ask a Silly Question . . .," 29 Suffolk U. L. Rev. 677, 685 (1995) (footnotes omitted). I find Judge Selya's analysis persuasive, and therefore do not agree with Nash's framing of the problem. I don't think there is a problem.
The thesis of Nash's article is that certification rests on a shaky jurisdictional basis. Here's his reasoning. Jurisdiction can be thought of as unitary or binary. This is a fancy way of saying whether we're talking about one or two cases. So when one court considers another case as precedent, that embraces the "binary conception," but when a case is appealed from a lower to higher court, that's the "unitary conception." So far, not too controversial.
Then Nash asks under which conception should certification be classified. He argues that it might be thought of as either. But next he reasons that, if unitary, certification is not constitutional, because that would mean that state courts are exercising the federal judicial power. On the other hand, if binary, there's no constitutional problem, but certification would seem to be contrary to the statutory grant of diversity jurisdiction (as understood through those Supreme Court cases that say that a federal court generally should not abstain solely because a difficult issue of state law is involved).
This is a weighty and well-researched article, but I do not find the central part of the argument persuasive. First, accepting the unitary/binary paradigm, I think certification surely falls in the unitary category. Second, I don't think this creates a constitutional problem because the state court is not exercising "the federal judicial power." As Judge Selya has observed: "When a question is certified, the responding court does not assume jurisdiction over the parties or over the subject matter. It does not assume the power to adjudicate a dispute between the parties or to enforce any judgment. Only the certifying court asserts real judicial power--'the right to determine actual controversies arising between adverse litigants'--over the parties." Bruce M. Selya, "Certified Madness: Ask a Silly Question . . .," 29 Suffolk U. L. Rev. 677, 685 (1995) (footnotes omitted). I find Judge Selya's analysis persuasive, and therefore do not agree with Nash's framing of the problem. I don't think there is a problem.
law review headlines
The Fall 2003 issue of the Willamette Law Review has articles from a symposium on The Selection of State Appellate Judges.
Thursday, September 25, 2003
catching up
A journal that is catching up:
- Tennessee Law Review (both its Spring 2003 and Winter 2003 issues came out in September 2003).
law review headlines
The Summer 2003 issue of the Indiana Journal of Global Legal Studies has Kerstin Martens, Examining the (Non-) Status of NGOs in International Law; Oren Perez, Normative Creativity and Global Legal Pluralism: Reflections on the Democratic Critique of Transnational Law; Michael B. Likosky, Mitigating Human Rights Risks Under State-Financed and Privatized Infrastructure Projects; and Vidya S. A. Kumar, A Critical Methodology of Globalization: Politics of the 21st Century?
The Spring 2003 issue of the Tennessee Law Review has Mary Garvey Algero, A Step in the Right Direction: Reducing Intercircuit Conflicts by Strengthening the Value of Federal Appellate Court Decisions and George Anastaplo, Constitutionalism and the Good: Explorations.
The Spring 2003 issue of the Tennessee Law Review has Mary Garvey Algero, A Step in the Right Direction: Reducing Intercircuit Conflicts by Strengthening the Value of Federal Appellate Court Decisions and George Anastaplo, Constitutionalism and the Good: Explorations.
Wednesday, September 24, 2003
catching up
A journal that is catching up:
- University of Pittsburgh Law Review (Spring 2003 issue came out in September 2003, and its Fall 2002 issue just came out in July 2003) .
off schedule
A journal that is running late:
- Texas Journal of Women and the Law (Fall 2002 issue came out in September 2003).
law review headlines
The latest issue of the Chicago-Kent Law Review has articles from a symposium entitled The Jury at a Crossroad: The American Experience. Click here to read the articles.
The latest issue of the Seton Hall Law Review has articles from a symposium on Expert Admissibility: Keeping Gates, Goals and Promises.
The Spring 2003 issue of the University of Pittsburgh Law Review has an article by Robert W. Scheef called Temporal Dynamics in Statutory Interpretation: Courts, Congress, and the Canon of Constitutional Avoidance.
The latest issue of the Seton Hall Law Review has articles from a symposium on Expert Admissibility: Keeping Gates, Goals and Promises.
The Spring 2003 issue of the University of Pittsburgh Law Review has an article by Robert W. Scheef called Temporal Dynamics in Statutory Interpretation: Courts, Congress, and the Canon of Constitutional Avoidance.
Tuesday, September 23, 2003
catching up
A journal that is catching up:
- ILSA Journal of International and Comparative Law (2003 issue came out in September 2003 and its Fall 2002 issue came out in August 2003).
off schedule
Journals that are running late:
- Pace Environmental Law Review (2002/03 issue came out in September 2003)
- Rutgers Law Review (Winter 2003 issue came out in September 2003).
law review headlines
The August 2003 issue of The Business Lawyer contains articles from a symposium on business organizations.
The Summer 2003 issue of the Columbia Journal of European Law has an article by Horatia Muir Watt entitled Choice of Law in Integrated and Interconnected Markets: A Matter of Political Economy.
The September 2003 issue of the Cornell Law Review has Eric R. Claeys, Takings, Regulations, and Natural Property Rights; and Jonathan Remy Nash, Examining the Power of Federal Courts to Certify Questions of State Law.
The most recent issue of the George Washington International Law Review has articles from the Steven L. Cantor International Tax Symposium.
The most recent issue of the Gonzaga Law Review has Michael Eric Johnston, A Better SLAPP Trap: Washington State's Enhanced Statutory Protection for Targets of "Strategic Lawsuits Against Public Participation"; John K. Palchak and Stanley T. Leung, No State Required? A Critical Review of the Polycentric Legal Order; and Hugh D. Spitzer, Taxes vs. Fees: A Curious Confusion.
The Spring 2003 issue of the ILSA Journal of International and Comparative Law contains the 2002 International Law Weekend Proceedings.
The most recent issue of Pace Environmental Law Review has articles from a symposium on local environmental law.
The most recent issue of the St. Louis University Public Law Review has articles from a symposium on The Protection of Children's Rights Under International Law.
The most recent issue of the University of Illinois Law Review has Daniel A. Farber, From Here to Eternity: Environmental Law and Future Generations (presented here and Christopher S. Elmendorf, Ideas, Incentives, Gifts, and Governance: Toward Conservation Stewardship of Private Land, in Cultural and Psychological Perspective (presented here).
The Summer 2003 issue of the Columbia Journal of European Law has an article by Horatia Muir Watt entitled Choice of Law in Integrated and Interconnected Markets: A Matter of Political Economy.
The September 2003 issue of the Cornell Law Review has Eric R. Claeys, Takings, Regulations, and Natural Property Rights; and Jonathan Remy Nash, Examining the Power of Federal Courts to Certify Questions of State Law.
The most recent issue of the George Washington International Law Review has articles from the Steven L. Cantor International Tax Symposium.
The most recent issue of the Gonzaga Law Review has Michael Eric Johnston, A Better SLAPP Trap: Washington State's Enhanced Statutory Protection for Targets of "Strategic Lawsuits Against Public Participation"; John K. Palchak and Stanley T. Leung, No State Required? A Critical Review of the Polycentric Legal Order; and Hugh D. Spitzer, Taxes vs. Fees: A Curious Confusion.
The Spring 2003 issue of the ILSA Journal of International and Comparative Law contains the 2002 International Law Weekend Proceedings.
The most recent issue of Pace Environmental Law Review has articles from a symposium on local environmental law.
The most recent issue of the St. Louis University Public Law Review has articles from a symposium on The Protection of Children's Rights Under International Law.
The most recent issue of the University of Illinois Law Review has Daniel A. Farber, From Here to Eternity: Environmental Law and Future Generations (presented here and Christopher S. Elmendorf, Ideas, Incentives, Gifts, and Governance: Toward Conservation Stewardship of Private Land, in Cultural and Psychological Perspective (presented here).
Monday, September 22, 2003
off schedule
Journals that are running late:
- The American Review of International Arbitration (2001 issue came out in September 2003)
- Cleveland State Law Review (2002-03 issue came out in September 2003)
- The University of Baltimore Journal of Environmental Law (Fall 2002 issue came out in September 2003)
law review headlines
The most recent issue of the Antitrust Law Journal has an article by Marc Winerman entitled The Origins of the FTC: Concentration, Cooperation, Control, and Competition, and also a development note by D. Bruce Hoffman and M. Sean Royall entitled Administrative Litigation at the FTC: Past, Present, and Future. It also has articles from a symposium on Celebrating Twenty Years of Merger Guidelines.
The Spring 2003 issue of the Tax Law Review has an article by Steven A. Bank entitled Is Double Taxation a Scapegoat for Declining Dividends? Evidence from History.
The Summer 2003 issue of Law and Social Inquiry has articles from a symposium called In Their Own Words: How Ordinary People Construct the Legal World and a symposium on Kagan's Adversarial Legalism: The American Way of Law.
The most recent issue of the New York University Annual Survey of American Law has articles from a symposium called The Future of Public Education. Articles are available directly from the website.
The Spring 2003 issue of the Tax Law Review has an article by Steven A. Bank entitled Is Double Taxation a Scapegoat for Declining Dividends? Evidence from History.
The Summer 2003 issue of Law and Social Inquiry has articles from a symposium called In Their Own Words: How Ordinary People Construct the Legal World and a symposium on Kagan's Adversarial Legalism: The American Way of Law.
The most recent issue of the New York University Annual Survey of American Law has articles from a symposium called The Future of Public Education. Articles are available directly from the website.
Wednesday, September 17, 2003
off schedule
Journals that are running late:
- American Journal of Legal History (October 2000 issue came out in September 2003)
- The Howard Scroll: The Social Justice Law Review (Spring 2002 issue came out in September 2003)
- Tennessee Law Review (Winter 2003 issue came out in September 2003)
- Toledo Journal of Great Lakes' Law, Science, and Policy (Spring 2002 issue came out in September 2003)
- Yale Journal of Law and the Humanities (Winter 2003 issue came out in September 2003).
law review headlines
The Spring 2003 issue of the Hamline Law Review has an article by Adam D. Moore on Intellectual Property, Innovation, and Social Progress: The Case Against Incentive Based Arguments.
The July 2003 issue of the Southern California Law Review has an article by John E. Fee entitled "The Takings Clause As A Comparative Right." The article is available online at http://www-rcf.usc.edu/cgi-local/usclrev/PrintArticle.cgi?file=076501.
The Winter 2003 issue of the Tennessee Law Review has Brannon P. Denning and Glenn H. Reynolds, Constitutional 'Incidents': Interpretation in Real Time; Dwight Aarons, Reflections on the Killing State: A Cultural Study of the Death Penalty in the Twentieth Century United States?; and George Anastaplo, Law, Judges, and the Principle of Regimes: Explorations.
The Spring 2002 issue of the Toledo Journal of Great Lakes' Law, Science, and Policy has Alma L. Lowry, Environmental Justice Implications of Brownfields---Their Creation and Their Redevelopment.
The Summer 2003 issue of the American Criminal Law Review contains Mary Sigler, Contradiction, Coherence, and Guided Discretion in the Supreme Court's Capital Sentencing Jurisprudence, and Deborah A. Ramirez, Jennifer Hoopes, and Tara Lai Quinlan, Defining Racial Proviling in a Post-September 11 World.
The September 2003 issue of the Florida Law Review provides A Tribute to Chesterfield Smith, including an article by Andrew M. Perlman entitled Toward a Unified Theory of Professional Regulation.
The Spring 2002 issue of The Howard Scroll: The Social Justice Law Review contains an article by Bernard Haggerty entitled Back to the Future: A Houstonian Approach to Environmental Justice.
The July 2003 issue of the Southern California Law Review has an article by John E. Fee entitled "The Takings Clause As A Comparative Right." The article is available online at http://www-rcf.usc.edu/cgi-local/usclrev/PrintArticle.cgi?file=076501.
The Winter 2003 issue of the Tennessee Law Review has Brannon P. Denning and Glenn H. Reynolds, Constitutional 'Incidents': Interpretation in Real Time; Dwight Aarons, Reflections on the Killing State: A Cultural Study of the Death Penalty in the Twentieth Century United States?; and George Anastaplo, Law, Judges, and the Principle of Regimes: Explorations.
The Spring 2002 issue of the Toledo Journal of Great Lakes' Law, Science, and Policy has Alma L. Lowry, Environmental Justice Implications of Brownfields---Their Creation and Their Redevelopment.
The Summer 2003 issue of the American Criminal Law Review contains Mary Sigler, Contradiction, Coherence, and Guided Discretion in the Supreme Court's Capital Sentencing Jurisprudence, and Deborah A. Ramirez, Jennifer Hoopes, and Tara Lai Quinlan, Defining Racial Proviling in a Post-September 11 World.
The September 2003 issue of the Florida Law Review provides A Tribute to Chesterfield Smith, including an article by Andrew M. Perlman entitled Toward a Unified Theory of Professional Regulation.
The Spring 2002 issue of The Howard Scroll: The Social Justice Law Review contains an article by Bernard Haggerty entitled Back to the Future: A Houstonian Approach to Environmental Justice.
Monday, September 15, 2003
law review headlines
The most recent issue of the Indiana International and Comparative Law Review has articles from a symposium on Symposium: From Pipe Bombs to PhD-s: International Terrorism in the Twenty-First Century.
Friday, September 12, 2003
A practical Note for antidiscrimination lawyers
My first post! I want to draw folks' attention to a case comment by Nick Daum that was published in the Yale Law Journal last year. The title is "Section 1983, Statutes, and Sovereign Immunity." The cite is 112 Yale L.J. 353 (2002).
Daum critiques an Eighth Circuit decision, Alsbrook v. City of Maumelle, 184 F.3d 999 (8th Cir. 1999) (en banc), and in doing so demonstrates that current law should allow a plaintiff to sue state officials for ADA or ADEA violations, despite the Eleventh Amendment and associated doctrines of sovereign immunity. I found his analysis quite persuasive, and I do not believe that many circuits besides the Eighth have addressed the argument. I therefore recommend that lawyers who practice in the field of employment discrimination read Daum's piece carefully and see whether they can implement it in litigation.
Daum critiques an Eighth Circuit decision, Alsbrook v. City of Maumelle, 184 F.3d 999 (8th Cir. 1999) (en banc), and in doing so demonstrates that current law should allow a plaintiff to sue state officials for ADA or ADEA violations, despite the Eleventh Amendment and associated doctrines of sovereign immunity. I found his analysis quite persuasive, and I do not believe that many circuits besides the Eighth have addressed the argument. I therefore recommend that lawyers who practice in the field of employment discrimination read Daum's piece carefully and see whether they can implement it in litigation.
off schedule
A journal that is running late:
- Temple Law Review (Winter 2002 issue came out in September 2003)
law review headlines
The September 2003 issue of Constitutional Political Economy has Roger D. Congleton, Andreas Kyriacou, and Jordi Bacaria, A Theory of Menu Federalism: Decentralization by Political Agreement; Olga Shvetsova, Endogenous Selection of Institutions and Their Exogenous Effects; and Oliver Budzinski, Cognitive Rules, Institutions, and Competition.
The September 2003 issue of the Virginia Law Review has a note by Brian M. Feldman entitled Evaluating Public Endorsement of the Weak and Strong Forms of Judicial Supremacy.
The September 2003 issue of the Virginia Law Review has a note by Brian M. Feldman entitled Evaluating Public Endorsement of the Weak and Strong Forms of Judicial Supremacy.
Thursday, September 11, 2003
announcement
Just got an email announcing the Global Law Review website, focusing on "Asset Protection, Banks & Banking, Business Law, Commercial Law, Company Law, Contracts, Corporate Law, Debtor & Creditor, Finance, International Trade, Investments, Leases & Leasing, Libel & Defamation, Mergers & Acquisitions, Mortgages, Negligence, Professional Liability, Property Law, Real Estate, Torts, Trusts, and Legal Research - in India and internationally." It has links to India Law Online and Plain Language and the Law.
Wednesday, September 10, 2003
catching up
Journals that are catching up:
- Hastings Constitutional Law Quarterly (its Winter 2003 issue came out in September 2003 and its Summer 2002 issue came out in July 2003)
- Wayne Law Review (Fall 2002 issue came out in September 2003 and Spring 2002 issue came out in August 2003).
law review headlines
The Winter 2003 issue of the Hastings Constitutional Law Quarterly has an article by Robert H. Alsdorf entitled The Sound of Silence: Thoughts of a Sitting Judge on the Problem of Free Speech and the Judiciary in a Democracy.
The Spring 2003 issue of the John Marshall Law Review has focus articles on Real Estate.
The Summer 2003 issue of Law and Literature has articles from a symposium entitled The Art of Execution.
The Fall 2002 issue of the Wayne Law Review has articles from a symposium on Race and Law in America.
The Spring 2003 issue of the John Marshall Law Review has focus articles on Real Estate.
The Summer 2003 issue of Law and Literature has articles from a symposium entitled The Art of Execution.
The Fall 2002 issue of the Wayne Law Review has articles from a symposium on Race and Law in America.
Tuesday, September 09, 2003
law review headlines
The Fall 2003 issue of the American Law and Economics Review contains Michael J. Trebilcock, The Law and Economics of Immigration Policy; Lawrence Katz, Steven D. Levitt, and Ellen Shustorovich, Prison Conditions, Capital Punishment, and Deterrence; Hashem Dezhbakhsh, Paul H. Rubin, and Joanna M. Shepherd, Does Capital Punishment Have a Deterrent Effect? New Evidence from Postmoratorium Panel Data; Abraham L. Wickelgren, Justifying Imprisonment: On the Optimality of Excessively Costly Punishment; Jeff Dominitz, How Do the Laws of Probability Constrain Legislative and Judicial Efforts to Stop Racial Profiling?; and Oren Bar-Gill and Omri Ben-Shahar, The Uneasy Case for Comparative Negligence.
The August 2003 issue of the UCLA Law Review has Jesse Dukeminier and James E. Krier (the authors of my property casebook!), The Rise of the Perpetual Trust; Jill R. Horwitz, Why We Need the Independent Sector: The Behavior, Law, and Ethics of Not-for-Profit Hospitals; and John Shepard Wiley, Jr., Taming Patent: Six Steps for Surviving Scary Patent Cases.
The August 2003 issue of the UCLA Law Review has Jesse Dukeminier and James E. Krier (the authors of my property casebook!), The Rise of the Perpetual Trust; Jill R. Horwitz, Why We Need the Independent Sector: The Behavior, Law, and Ethics of Not-for-Profit Hospitals; and John Shepard Wiley, Jr., Taming Patent: Six Steps for Surviving Scary Patent Cases.
Monday, September 08, 2003
law review headlines
The Fall 2003 issue of the Harvard Educational Review is a special issue on Popular Culture in Education.
The August 2003 issue of the Washington Law Review has an article by Jeremy Firestone and Robert Barber entitled Fish as Pollutants: Limitations of and Crosscurrents in Law, Science, Management, and Policy.
The August 2003 issue of the Washington Law Review has an article by Jeremy Firestone and Robert Barber entitled Fish as Pollutants: Limitations of and Crosscurrents in Law, Science, Management, and Policy.
Friday, September 05, 2003
caught up
Journals that are catching up:
- Arizona State Law Journal (its Spring 2003 issue came out in August 2003 and its Summer 2003 issue came out in September 2003)
- Nova Law Review (its Spring 2003 issue came out in September 2003, and its Winter 2002 issue came out in August 2003) .
catching up
A journal that is catching up:
- William and Mary Bill of Rights Journal (both its February 2003 and December 2002 issues came out in August 2003)
off schedule
Journals that are running late:
- Comparative Labor Law and Policy Journal (its Fall 2001 issue came out in September 2003 and its Summer 2001 issue came out in July 2003)
- Georgetown Journal of Gender and the Law (Fall 2002 issue came out in September 2003)
law review headlines
The Summer 2003 issue of the Arizona State Law Journal has articles from a tribute to John B. Frank.
The most recent issue of the Asian Law Journal has a special section on Teaching Asian Americans and the Law: Insights and Syllabi, including an article by Frank H. Wu on The Arrival of Asian Americans: An Agenda for Legal Scholarship.
The Spring 2003 issue of the Brandeis Law Journal has articles from a First Amendment Discussion Forum.
The Fall 2002 issue of the Georgetown Journal of Gender and the Law contains its Fourth Annual Review of Gender and Sexuality.
The most recent issue of the Indiana Law Review has an article by Michael Steven Green entitled Copyrighting Fact.
The August 2003 issue of the Journal of Health Politics, Policy, and Law has articles from a symposium on Cross-National Trends in Health Policy, including an article by Mary E. Wiktorowicz on Emergent Patterns in the Regulation of Pharmaceuticals: Institutions and Interests in the United States, Canada, Britain, and France.
The Summer 2003 issue of the Journal of Law and Social Challenges has articles on The Role of Profiling in American Society.
The most recent issue of the Northern Kentucky Law Review has articles from a symposium on wrongful convictions.
The most recent issue of the Ohio State Law Journal has an article by Joëlle Anne Moreno entitled Einstein on the Bench?: Exposing What Judges Do Not Know About Science and Using Child Abuse Cases to Improve How Courts Understand and Evaluate Scientific Evidence. A link to it is here.
The Spring 2003 issue of the Southern University Law Review has an article by Vanue B. Lacour entitled The Misunderstanding and Misuse of the Commerce Clause.
The Summer 2003 issue of the Stanford Journal of International Law has an article by Anu Piilola entitled Assessing Theories of Global Governance: A Case Study of International Antitrust Regulation.
The Spring 2003 issue of the Vermont Law Review has articles on Issues in Vermont Law: Campaign Finance Reform.
The February 2003 issue of the William and Mary Bill of Rights Journal has articles from a symposium on The Rule of Law in China, including an article by Eric W. Orts entitled Environmental Law with Chinese Characteristics.
The most recent issue of the Asian Law Journal has a special section on Teaching Asian Americans and the Law: Insights and Syllabi, including an article by Frank H. Wu on The Arrival of Asian Americans: An Agenda for Legal Scholarship.
The Spring 2003 issue of the Brandeis Law Journal has articles from a First Amendment Discussion Forum.
The Fall 2002 issue of the Georgetown Journal of Gender and the Law contains its Fourth Annual Review of Gender and Sexuality.
The most recent issue of the Indiana Law Review has an article by Michael Steven Green entitled Copyrighting Fact.
The August 2003 issue of the Journal of Health Politics, Policy, and Law has articles from a symposium on Cross-National Trends in Health Policy, including an article by Mary E. Wiktorowicz on Emergent Patterns in the Regulation of Pharmaceuticals: Institutions and Interests in the United States, Canada, Britain, and France.
The Summer 2003 issue of the Journal of Law and Social Challenges has articles on The Role of Profiling in American Society.
The most recent issue of the Northern Kentucky Law Review has articles from a symposium on wrongful convictions.
The most recent issue of the Ohio State Law Journal has an article by Joëlle Anne Moreno entitled Einstein on the Bench?: Exposing What Judges Do Not Know About Science and Using Child Abuse Cases to Improve How Courts Understand and Evaluate Scientific Evidence. A link to it is here.
The Spring 2003 issue of the Southern University Law Review has an article by Vanue B. Lacour entitled The Misunderstanding and Misuse of the Commerce Clause.
The Summer 2003 issue of the Stanford Journal of International Law has an article by Anu Piilola entitled Assessing Theories of Global Governance: A Case Study of International Antitrust Regulation.
The Spring 2003 issue of the Vermont Law Review has articles on Issues in Vermont Law: Campaign Finance Reform.
The February 2003 issue of the William and Mary Bill of Rights Journal has articles from a symposium on The Rule of Law in China, including an article by Eric W. Orts entitled Environmental Law with Chinese Characteristics.
Thursday, September 04, 2003
Volkh in the Houston Law Review
freedom of speech and intellectual property: some thoughts after eldred, 44 liquormart and bartnicki, eugene volokh, forthcoming in the houston law review.
He begins by challenging the assumption that Intellectual Property laws are content-neutral, carefully distinguishing "content-neutral" from "viewpoint-neutral". He moves into the problem of lack of alternate channels, which hesays more or less negates them as Time/Manner/Place restriction. He, again, carefully discusses how IP protections are like a commercial speech distinction, perhaps an entire different category of speech.
He next talks about how the Digital Millenium Copyright Act is a particular restriction on speech, particularly in its restriction of hyperlinking or publication of URLs which "traffic in . . . technology . . . that has only limited commercially significant purpose or use other than to circumvent [copy] protection". This spills over from the protection of copyrighted expression into a restriction of free expression of facts. DMCA similarly tramples of fair use, putting it, again, outside the Constitutional bounds of fair limitations of free expression.
Then Volkh moves on to the recent cases and tries to see how they fit with the assumption, which additional assumptions they make, and where this leaves us with regard to our ability to talk, digitally, about protected works, and our ability to use (again, mostly digitally) protected works in traditionally noninfringing ways which now seem infringing because of the perfection of the copies, even when that copy is incomplete or transformative or merely for reference, not use in its intended manner.
Finally, of course, he gets into the various regimes of intellectual property protections, discusses how they function as restrictions on speech and whether and how they should comport with the First Amendment.
I confess I have never been a big fan of Volokh. We published (seemingly) endless pages of his work while I was at Georgetown and I'm not sure I've ever read any of his articles all the way through (and as I write this, I've got about twenty pages left in this article). I'm finding this article, however, a tidy little intellectual exercise.
The Houston Law Review, by the way, appears to be on-time.
He begins by challenging the assumption that Intellectual Property laws are content-neutral, carefully distinguishing "content-neutral" from "viewpoint-neutral". He moves into the problem of lack of alternate channels, which hesays more or less negates them as Time/Manner/Place restriction. He, again, carefully discusses how IP protections are like a commercial speech distinction, perhaps an entire different category of speech.
He next talks about how the Digital Millenium Copyright Act is a particular restriction on speech, particularly in its restriction of hyperlinking or publication of URLs which "traffic in . . . technology . . . that has only limited commercially significant purpose or use other than to circumvent [copy] protection". This spills over from the protection of copyrighted expression into a restriction of free expression of facts. DMCA similarly tramples of fair use, putting it, again, outside the Constitutional bounds of fair limitations of free expression.
Then Volkh moves on to the recent cases and tries to see how they fit with the assumption, which additional assumptions they make, and where this leaves us with regard to our ability to talk, digitally, about protected works, and our ability to use (again, mostly digitally) protected works in traditionally noninfringing ways which now seem infringing because of the perfection of the copies, even when that copy is incomplete or transformative or merely for reference, not use in its intended manner.
Finally, of course, he gets into the various regimes of intellectual property protections, discusses how they function as restrictions on speech and whether and how they should comport with the First Amendment.
I confess I have never been a big fan of Volokh. We published (seemingly) endless pages of his work while I was at Georgetown and I'm not sure I've ever read any of his articles all the way through (and as I write this, I've got about twenty pages left in this article). I'm finding this article, however, a tidy little intellectual exercise.
The Houston Law Review, by the way, appears to be on-time.
