May 22, 2013
Campbell Law Review Call for Papers
The Campbell Law Review is pleased to announce a call for papers for its National Edition, which will be focused broadly around Internet Law and related themes. The Internet and associated technologies continue to evolve a pervasively networked, globalized society, creating new forces that are shaping law, society, culture, and the legal profession.
The Law Review seeks to publish papers on legal, social, cultural, and economic issues that relate to the emerging technological changes. In particular, we seek recent essays that deal with the challenges posed and the steps that must be taken for the law to respond, now and in the future. Representative topics include privacy law, freedom of speech, and the changing nature of the legal profession.
The call for papers includes an August 1, 2013, submission deadline for publication in Fall 2013.
Hat Tip: SSRN Legal Scholarship Network.
May 17, 2013
New In Print: The Law Review Review
The Georgetown Journal of Gender and the Law''s Wintere 2013 issue includes their Winter Issue of Gender and Sexuality Law with articles by Seletha R. Butler (Georgia Tech College of Business), Julie Goldscheid (CUNY Law) and Jody M. Prescott (Vermont). There is also what appears to be a potentially interesting student note titled, "Islamic Marriage Contracts as Simple Contracts Governed by Islamic Law: A Roadmap for U.S. Courts," by Emily C. Sharp. This strikes me as a particularly timely topic and I look forward to reading the note. One further aside on this journal - The GJGL charges for online content - content that in many instances is available free on SSRN. I wonder how this model works for the journal.
The Harvard Civil Rights-Civil Liberties Law Review's Winter 2013 issue includes several interesting articles inc luding one near and dear to me as a state trial judge with criminal jurisdiction - "Beyond 'Life and Liberty:' The Evolving Right to Counsel," by John D. King (Washington & Lee). The key lines from the Abstract read: "This Article argues that current Sixth Amendment jurisprudence on the right to counsel has not adequately adapted to the changed realities within which misdemeanor prosecutions take place today. Because of the dramatic changes in the cultural meaning and real-life consequences of low-level convictions, there is no longer a useful or constitutionally significant line between those cases resulting in actual imprisonment and those cases not resulting in imprisonment." Because I believe the combined effect of Padilla, Frye and Lafler will be greater judicial involvement in plea bargaining processes (but not plea bargain negotiations), contributions such as King's are valuable to gaining understanding into this "evolving" area.
The new edition of Syracuse Law Review (Vol. 63, No. 2) includes Symposium: The Age of Social Media and It's Impact on the Law. The symposium includes an article on judicial use of social media by Helia Garrido Hull (Barry). I have not found the article online yet, however the title suggests Professor Hull reaches a different conclusion than I did in my essay on a similar subject published last year in the St. Mary's Journal of Legal Malpractice & Ethics. I hope to obtain Professor Hull's article soon and my a comment further on it here.
Volume 55, No. 1, Arizona Law Review includes a collection of articles under the title "Financial Reform During the Great Recession: Dodd-Frank, Executive Compensation and the Card Act." The issue includes articles by Lisa M. Fairfax (George Washington), Kimberly D. Krawiec (Duke), MIra Ganor (Texas) and Andrea Freeman (Hawai'i).
St. Mary's Law Review's newest issue includes "Secured Transactions History: Protecting Holmes' Notes Through the Conditional Sales Acts," by George Lee Flint, Jr. (St. Mary's). Scholar: St. Mary's Law Review on Race and Social Justice's newest issue includes articles by Donna McKneelen (Cooley) and Chauntelle Ann Tibbals, Ph.D.
May 10, 2013
Dittfurth: Restitution in Texas
David Dittfurth's (St. Mary's) article "Restitution in Texas: Civil Liability for Unjust Enrichment" appears in the latest South Texas Law Review (Winter 2012). On first read, I am impressed with this article, which is comprehensive and makes a valuable contribution to this often confusing and misunderstood area of law. We cover restitution, unjust enrichment, quantum meruit and quasi-contract and other related causes of action in our Damages class and I look forward to mining this article for a better understanding myself. As a bonus, Dittfurth includes "recent statements by the courts of forty-nine states and the District of Columbia that describe the elements of unjust enrichment" in those jurisdictions.
May 06, 2013
King; Enforcing Effective Assistance after Martinez
Professor Nancy J. King (Vanderbilt) has posted her essay, "Enforcing Effective Assistance after Martinez" on SSRN. Here is the abstract:
This Essay argues that the Court’s effort to expand habeas review of ineffective assistance of counsel claims in Martinez v. Ryan will make little difference in either the enforcement of the right to the effective assistance of counsel or the provision of competent representation in state criminal cases. Drawing upon statistics about habeas litigation and emerging case law, the Essay first explains why Martinez is not likely to lead to more federal habeas grants of relief. It then presents new empirical information about state postconviction review (cases filed, counsel, hearings, and relief rates), post-Martinez decisions, and anecdotal reports from the states to explain why, even if federal habeas grants increase, state courts and legislatures are unlikely to respond by invigorating state collateral review. The Essay concludes that alternative means, other than case-by-case postconviction review, will be needed to ensure the provision of effective assistance.
This Essay is forthcoming in the Yale Law Journal.
May 03, 2013
New In Print: Law Review Reviews
Fordham Law Review's April 2013, issue includes a symposium on the goals of antitrust. Barak Orbach (Arizona) contributed the Forward. The April 2013, California Law Review includes "Property's Constitution," by James Y. Stern (Virginia) and From Independence to Politics in Financial Regulation," by Stavros Gadinis (Berkeley). The current issue of the Columbia Journal of Gender & Law includes a Symposium Honoring the Advocacy, Scholarship and Jurisprudence of Justice Ruth Bader Ginsburg.
The March 2013, Columbia Law Review includes "In Defense of Big Waiver," by David J. Barron (Harvard) and Todd D. Rakoff, (Harvard) and "Technological Innovation, International Competition and the Challenges of International Income Taxation," by Michael J. Graetz (Columbia) and Rachael Doud (Yale '12). The Winter 2013, Houston Law Review includes articles by Alexia Brunet Marks (Colorado), Stacey A Tovino (UNLV) and Fredrick E. Vars (Alabama).
Legal history buffs may want to check out the Fall/Winter 2013 Rutgers Law Journal, which includes Symposium: The Constitution and the Sectional Conflict. The current issue of the Saint Louis Law Review includes the symposium, "Invisible Constitutions: Culture, Religion and Memory."
The Texas Tech Law Review's Fall 2012 issue includes the Sixth Annual Criminal Law Symposium: Sixth Amendment, including panel articles on confrontation, the right to counsel at trial, and the right to counsel before trial. As of this writing, this edition is not available online at the law review's website.
The March 2013, Cornell Law Review includes "Accepting the Limits of Tax Law and Economics," by Alex Raskolnikov (Columbia), "The Regulator Effect in Financial Regulation," by Jonathan R. Macey (Yale) and "The Social Production of National Security," by Aziz Z. Huq (Chicago).
Some other recently released symposium issues of note are UC Davis Law Review and "The Daubert Hearing: From All the Critical Perspectives;" The University of Chicago Law Review and "Immigration Law and Institutional Design;" Washington University Global Studies Law Review and "Global Nuclear Energy Law and Regulation;" and Georgetown Journal of Law & Public Policy and "Hyper Partisanship and the Law."
The April 2013, Duke Law Journal includes "Delegating Up: State Conformity With the Federal Tax Base," by Ruth Mason (Connecticut) and the lecture, "Exit, Voice and Disloyalty," by Heather K. Gerken (Yale). The current Oregon Law Review (Vol. 91, No. 4) includes a symposium on issues relating to marijuana legalization and the war on drugs.
April 26, 2013
New In Print: Law Review Reviews
The Denver University Law Review (Vol. 89, No. 4) has published papers from the 19th Annual Rothgerber Conference - "Toward A Constitutional Right of Access to Justice: Implications and Implementations," with a focus on access to the courts and medical marijuana, among other things.
The April 2013, Harvard Law Review includes " The Problem of Resource Access," by Lee Anne Fennell (Chicago), a book review by David A. Strauss (Chicago) plus student notes and recent cases. The Winter 2013, Harvard Journal of Legislation includes papers by Senator Jeanne Shaheen on fililbuster reform, Senator Olympia J. Snowe on legislative effectiveness in the 112th Congress, and Rep. Louise Slaughter on the Genetic Information Non-Discrimination Act. The edition also includes a short symposium on Government Outsourcing and Privatization.
Alabama Law Review (Vol. 64, No. 3) includes Meador Lecture Series papers by Robert C. Ellickson, "The Law and Economics of Street Layouts: How a Grid Pattern Benefits a Downtown," and Brian Leiter (Chicago), "The Boundaries of the Moral (and Legal) Community." The Nov-Dec. 2012 San Diego Law Review includes the 2012 Editors' Symposium: "The Philosophical Foundations of Intellectual Property."
The March 2013 issue of Law and Contemporary Problems (Duke, faculty edited) includes the symposium, "A Global Perspective on Sentencing Reform." The Winter 2013 issue of the Indiana Law Journal leads with "Procedural Fairness in Election Contests," by Joshua Douglas (Kentucky).
Volume 2013, No. 1, Wisconsin Law Review includes, "colloquium essays address[ing] the role of empirical research in identifying, measuring, and clarifying crucial issues of service delivery, resource allocation, and access to justice in American law and society." Participating essayists are Jane H. Aiken (Georgetown) & Stephen Wizner (Yale), Catherine R. Albiston (Berkeley) & Rebecca L. Sandefur (Illinois), Anthony V. Alfieri (Miami), Jeanne Charn (Harvard) & Jeffrey Selbin (Berkeley), and Scott L. Cummings (UCLA). Meredith J. Ross (Wisconsin) contributed the Introduction to the Colloquium.
The New York Law School Law Review, Volume 57, Number 4, released this week and includes the symposium, "Trial by Jury or Trial by Motion? Summary Judgment, Iqbal, and Employment Discrimination."
April 23, 2013
Roberts on Effective Plea Bargaining Counsel
Jenny Roberts (American) has posted "Effective Plea Bargaining Counsel" on the Social Science Research Network. The article appears to have been accepted for later publication by the Yale Law Journal. This is the abstract:
Fifty years ago, Clarence Earl Gideon needed an effective trial attorney. The Supreme Court agreed with Gideon that the Sixth Amendment guaranteed him the right to counsel at trial. Recently, Galin Frye and Anthony Cooper also needed effective representation. These two men, unlike Gideon, wanted to plead guilty and thus needed effective plea bargaining counsel. However, their attorneys failed to represent them effectively, and the Supreme Court - recognizing the reality that ninety-five percent of all convictions follow guilty pleas and not trials - ruled in favor of Frye and Cooper.
If negotiation is a critical stage in a system that consists almost entirely of bargaining, is there a constitutional right to the effective assistance of plea bargaining counsel? If so, is it possible to define the contours of such a right? The concept of a right to an effective bargainer seems radical, yet obvious; fraught with difficulties, yet in urgent need of greater attention.
In this Essay, I argue that the Court’s broad statements in Missouri v. Frye, Lafler v. Cooper and its 2010 decision in Padilla v. Kentucky about the critical role defense counsel plays in plea negotiations strongly support a right to effective plea bargaining counsel. Any right to effective bargaining should be judged - as other ineffective assistance claims are judged - by counsel’s success or failure in following prevailing professional norms. The essay discusses the numerous professional standards that support the notion that defense counsel should act effectively when the prosecution seeks to negotiate and should initiate negotiations when the prosecution fails to do so, if it serves the client’s goals.
The objections to constitutional regulation of plea bargaining include the claims that negotiation is a nuanced art conducted behind closed doors that is difficult to capture in standards and that regulating bargaining will open floodgates to future litigation. While real, these are manageable challenges that do not outweigh the need to give meaning to the constitutional right to effective counsel. After all, in a criminal justice system that is largely composed of plea bargains, what is effective assistance of counsel if it does not encompass effectiveness within the plea negotiation process?
Roberts' article highlights proposed professional and ethical norms relating to plea bargaining. The Padilla, Frye and Cooper trilogy have opened the door for courts to closely scruitinize trial counsel's plea negotiations in subequent post-conviction proceedings. The highlights important considerations for defense counsel desiring to negotiate the best possible plea while simultaneously securing the plea's finality against post-conviction challenges. This article is recommended reading.
April 21, 2013
Call For Papers: Law & Informatics Symposium at Northern Kentucky
The Northern Kentucky Law Review has issued a call for papers for its February 27-28, 2014, Law & Informatics Symposium: "Cyber Defense Strategies and Responsibilities for Industry." For more information, click here.
April 15, 2013
New In Print: Law Review Review
Cardozo Law Review's February 2013, issue includes Symposium: Constitutionalism, Ancient and Modern. The Michigan State Law Review's Volume 2012:2 includes a series of articles on the subject of Lawyers as Conservators, with titles such as "Training Young Lawyers to Be Conservators of Legal Institutions & the Rule of Law" and "On the Declining Importance of Legal Institutions."
Volume 29:1 of the Touro Law Review includes exerpts from the Touro College Jacob D. Fuchsberg Law Center Conference in Paris: Persecution Through Prosecution: Alfred Dreyfus, Leo Frank and the Infernal Machine. The Summer 2012 edition of the University of Detroit Mercy Law Review includes Symposium: The Future of Intellectual Property, which clocks in as one of the shortest symposium editions in recent memory at 29 pages.
South Texas Law Review's Fall 2012 issue includes Symposium: Citizen Employees: Whistleblowers and Other Employees Acting in the Public Interest. The University of Miami Law Review's Winter 2013, issue includes Symposium: The Future of the Death Penalty in America. William & Mary Law Review's February 2013, issue features the symposium "Law Without a Lawmaker" and features articles on Erie Railroaad Co. v. Tompkins.
The American University International Law Review's Volume 27, No. 4 includes the Center on International Commercial Arbitration Symposium: Salient Issues in International Commercial Arbitration. Volume 39:2 of the William Mitchell Law Review includes a symposium on the U.S.-Dakota War of 1862. Volume 76, Issue 1 of the Albany Law Review includes Symposium: What Are We Saying? Violence, Vulgarity, Lies ... and the Importance of 21st Century Free Speech. (New York Univ)
Boston College Law Review's March 2013, issue includes a modified version of Professor Jeremy Waldron's (New York Univ.) Clough Distinguished Lecture in Jurisprudence titled, "Separation of Powers in Thought and Practice." The Fall 2012 issues of Duke Enviornmental Law & Policy Forum includes a special issue on Disaster Law. Harvard Journal of Law & Public Policy's Spring 2013, issue includes Symposium: Privacy, Security, and Human Dignity in the Digital Age. The current issue of the Washington University Journall of Law & Policy includes Symposium: Liddell Is Forty: Commemorating the Desegregation Movement in St. Louis, and A Look at the Future of Urban Education.
The April 2013, Michigan Law Review features its annual Survey of Books, including a Forward by Richard A. Danner (Duke). Finally, the Spring 2013, issue of Southwestern Law Review includes papers presented at the AALS ADR Section's Program titled "The Supreme Court and the Future of Arbitration.
April 12, 2013
Eagly on Gideon in Immigration Proceedings
Since Padilla v. Kentucky, decided in 2010, expressly established a connection between criminal pleas and collateral criminal consequences, there has been growing discussion as to whether or not Sixth Amendment protections announced in the landmark decision Gideon v. Wainwright, celebrating its 50th Anniversary this year, should be extended to any degree to persons facing deportation.
For the past fifty years, immigration law has resisted integration of Gideon v. Wainwright’s legacy of appointed counsel for the poor. Today, however, this resistance has given way to Gideon’s migration. At the level of everyday practice, criminal defense attorneys appointed pursuant to Gideon now advise clients on the immigration consequences of convictions, negotiate “immigration safe” plea bargains, defend clients charged with immigration crimes, and, in some model programs, even represent criminal defendants in immigration court. A formal right to appointed counsel in immigration proceedings has yet to be established, but proposals grounded in the constitution, statutes, and expanded government funding are gaining momentum.
From the perspective of criminal defense, the changing role of Gideon-appointed counsel raises questions about the breadth and depth of immigration assistance that should develop under the defense umbrella. From the perspective of immigration legal services, the potential importation of a Gideon-inspired right to counsel requires consideration of the appropriate scope and design for an immigration defender system. This Essay does not attempt to resolve these challenging questions, but rather provides a framework for further reflection that is grounded in lessons learned from the criminal system’s implementation of Gideon.
March 13, 2013
Texas Tech Law Review to Host Juveniles & Criminal Law Conference
The Texas Tech Law Review will host its 7th Annual Criminal Law Symposium: Juveniles & Criminal Law, on April 5, 2013, at the Mark and Becky Lanier Auditorium on the law school campus. The program as presented on the law review website:
Keynote Address: Franklin Zimring (Boalt)
Panel 1: When are (should) juveniles (be) tried as juveniles and when as adults?
- Ellen Podgor, Moderator (Stetson)
- Carissa Hessick (Arizona State)
- Janes HJoeffel (Tulane)
- David Pimentel (Ohio Northern)
- Christopher Slobogin (Vanderbilt)
Lexis/Nexis Luncheon Speaker: Arnold Loewry (Texas Tech)
Panel 2: Do (should) juveniles have more, less, the same, or different rights?
- Richard McAdams, Moderator (Chicago)
- Ronald Allen (Northwestern)
- Tamar Birckhead (North Carolina)
- Patrick Metze (Texas Tech)
- David Tanenhaus (UNLV)
Panel 3: What is (should be) the scope and limitations of juvenile punishment?
- Joshua Dressler, Moderator (Ohio State)
- Joseph Kennedy (North Carolina)
- Michael Perlin (New York)
- Kevin Saunders (Michigan State)
- The Honorable Irene Sullivan (State of Florida)
March 11, 2013
Texas Wesleyan Law Review to Host an Energy Law Symposium
Texas Wesleyan Law Review is hosting its Fifth Annual Energy Law Symposium at the law school March 21-22. Major topics include Litigation Issues in Energy Law, Regulatory and Environmental Issues in Energy Law, International Perspectives on Energy Law and Oil & Gas Practitioner Issues. This looks like a comprehensive energy law survey with 24 individual speakers and 3 roundtables on the agenda. The program agenda is here, registration information is here, and the registration form is here.
February 07, 2013
10% of Workers Have Defined Benefit Plans
The last private industry pension plans: a visual essay is an interesting December 2012 article from the Monthly Labor Review, here. The article concludes, among other things,
In 2011, only 10 percent of all private sector establishments provided defined benefit plans, covering 18 percent of private industry employees. Decades ago, broad coverage of these plans allowed the Bureau of Labor Statistics (BLS) to analyze and tabulate considerable detail about how they worked. . .
Mitchell H. Rubinstein
December 04, 2012
Secunda and Hirsch Labor Law: A Problem Based Approach (LexisNexis 2012)
Move over Cox, there is a new labor law text in town. It is Secunda & Hirsch, Labor Law: A Problem Based Approach (2012) and it should be available from LexisNexis anyday. Readers may be familar with Professor Secunda and Professor Hirsch's work. They are two of the four editors of Workplace Prof Blog, a blog we often quote and which this blog is modeled after.
What makes this book so outstanding is that it updates everything and I mean everything. The book focuses on recent caselaw and recent issues. The book is written with the student in mind and also provides several problems which are designed to stimulate interest in labor law and make the student think.
The book also covers all the classic cases and covers all the basic issues; it just does it better. Most importantly, the cases are edited and many presented in less pages than in other texts. The book also quotes from several important law review articles.
Congratulations Paul and Jeff. Everyone teaching labor law should consider this book for adoption.
Mitchell H. Rubinstein
November 20, 2012
Law Review Article On Grammar?? What is Next
For those of you who like to correct my grammar, I am pleased to point you to a law review article which takes a contemporary look at the use of Strunk and White in the legal profession. That article is available here.
Hat Tip: Legal Writing Prof Blog
Mitchell H. Rubinstein
Harvard Law Review Annual Supreme Court Issue
Harvard Law Review's annual Supreme Court issue is available online here.
Hat Tip: How Appealing
November 15, 2012
The Cardozo Journal of International and Comparative Law has released a symposium issue, "Amateur Athletics, Professional IP."
The Columbia Journal of Transnational Law has released its symposium, "The Challenges We Face: A Conference Honoring Professor Richard N. Gardner's Retirement from Teaching." The conference included panels titled, "Challenges in International Law and the United Nations," "Challenges in International Trade and Finance," "Challenges it the Transatlantic Alliance," and "Environment, Energy, Human Rights and Corporate Responsibility," with keynote addresses by former U.S. Secretary of State Zbigniew Brzezinski, former President of the International Court of Justice Stephen M. Schwebel, former Chairman of the Federal Reserve Paul Volcker and Columbia law professor Richard N. Gardner, a former Ambassador to Spain and Italy.
The Connecticut Law Review has published a commentary edition titled "National Security."
The John Marshall Law Review has published its 10th Annual Employee Benefits Symposium: "The Past, Present and Future of Supreme Court Jurisprudence on ERISA."
Pace Law Review has published a symposium titled, "Emerging Issues in Legal Procedure."
The Santa Clara Law Review has published its "Symposium on Leadership Education for Lawyers and Law Students."
The UCLA Law Review has published its symposium, "Overpoliced and Underprotected: Women, Race and Criminalization."
The UMKC Law Review has published its symposium, "FCIC and the Crisis: Preventing the Next Financial Meltdown."
The University of Memphis Law Review has published a symposium on capital punishment and cultural competency.
November 06, 2012
Does Every Law Review Article Find a Home?
According to her report, BYULR received 576 law review articles during this period. Professor Baradan does not reveal how many were accepted, but we might safely (though not conclusively) assume the number is in the single digits. My question is -- where do the rest go? Does every law review article submitted ultimately find a home? Do some writers choose to not publish when the alternative is to publish with a law review deemed to pedestrian (e.g., non-Top Fifty; non-Top 100)? s Is there an Island of the Misfit Law Review Articles out there somewhere?
Just thinking out loud.
October 08, 2012
Texas Wesleyan Law Review Call For Papers
Details here, Download Call for Papers - 2012-2013
Mitchell H .Rubinstein
September 21, 2012
Boston University Law Review has a symposium titled, "Originalism and Living Constitutionalism: A Symposium on Jack Balkin's Living Originalism and David Strauss's The Living Constitution" in Volume 92, No. 4. Fordam Urban Law Journal has its Cooper-Walsh Colloquium titled, "Big Problems, Small Government: Assessing the Recent Financial Crisis' Impact on Municipalities" in Volume XXXIX, No. 3. The University of Toledo Law Review's "Public Sector Labor Law at the Crossroads Symposium" in its Volume 43, No. 3.
DePaul Law Review's 17th Annual Clifford Symposium on Tort Law and Soclal Policy, titled "Festschrift for Robert Rabin" appears in its Volume 61, No. 2. Hastings Law Journal has "Symposium on Law & Policy of the Developing Brain: Neuroscience from Womb to Death" in Volume 63, No 6. Emory Law Journal's 2011 Randolph W. Thrower Symposium, "Judging Politics: Judges as Political Actors, Candidates and Arbiters of the Political" is included in its Volume 61, No. 4.
Stanford Law & Policy Review has "Symposium: Adult Entertainment" in Volume 23, No. 1. Texas Tech Law Review has "Symposium: Environmental Impacts of Oil and Gas" in its Volume 44, No. 4. University of Illinois Law Review has "Symposium: Jack Balkin's Constitutional Text and Principle" in Volume 2012, No. 3.