Thursday, October 31, 2013
This symposium will explore the theoretical and doctrinal affinities and clashes between tort and anti-discrimination law, while fostering dialogue between tort and anti-discrimination scholars. Symposium participants will explore whether the connections are strong enough to justify robust use of tort principles in anti- discrimination analysis and whether anti-discrimination law should be interpreted through a torts lens. They also will discuss whether tort law should selectively adopt anti-discrimination norms and analysis.
On November 15, the Oklahoma Law Review will host a half-day symposium on law enforcement access to third party records. This strikes me as a particularly relevant and timely topic; attorneys or other interested persons in the Central Oklahoma area during this time might consider this event to learn more on the subject.
Wednesday, October 23, 2013
The Minnesota Law Review will host a one day sympsium, "The Future of Organized Labor: Labor Law in the 21st Century" on October 25 in Mondale Hall on the law school campus in Minneapolis. The keynote speakers are Craig Becker, general counsel for the AFL-CIO and G. Roger King of Jones Day in Columbus, Ohio.
According to the law review's website, the symposium is at capacity and registration is closed. Interested persons, however, may want to contact the law review for the symposium issue when it is released.
Monday, October 21, 2013
On October 25, the Case Western Reserve Law Review will host their fall 2013 symposium, "The Supreme Court’s Treatment of Same-Sex Marriage in United States v. Windsor & Hollingsworth v. Perry: Analysis and Implications." Here is the Agenda (pdf).
Thursday, October 17, 2013
Rebecca Haw (Vanderbilt) has posted, "Delay and its Benefits for Judicial Rulemaking Under Scientific Uncertainty" on SSRN. This is the abstract:
The Supreme Court’s increasing use of science and social science in its decision-making has a rationalizing effect on law that helps ensure that a rule will have its desired effect. But resting doctrine on the shifting sands of scientific and social scientific opinion endangers legal stability. The Court must be be responsive, but not reactive, to new scientific findings and theories, a difficult balance for lay justices to strike. This Article argues that the Court uses delay — defined as refusing to make or change a rule in light of new scientific arguments at time one, and then making or changing the rule because of the same arguments at time two — as a tool to improve decision-making amidst scientific uncertainty.
Using the Court’s antitrust jurisprudence as an example, this Article shows that delay can have a salutary effect on rule-making because it allows the Court to use academic consensus (that either develops or matures between times one and two) as a signal of scientific reliability. As a conservatizing device, delay operates in the common law tradition, but it also avoids some of the failures associated with traditional common law features like stare decisis and incrementalism. The Article concludes by contrasting Supreme Court decision-making with an area of law where delay is impractical or undesirable. In toxic tort litigation, where the goals of deterrence and compensation preclude the use of delay in the face of new scientific arguments, the law pays the price in uncertainty and error.
This article is forthcoming in the Boston College Law Review.
Tuesday, October 15, 2013
From the University of Illinois School of Law website:
In honor or Larry Ribstein’s innumerable contributions to legal scholarship and the academy, the University of Illinois College of Law will host the Larry Ribstein Memorial Symposium on October 17-18, 2013. The Symposium is organized by Professors Amitai Aviram, Ralph Brubaker, Nuno Garoupa, Heidi Hurd, Christine Hurt, and David Hyman; and will consist of a series of roundtable sessions, including paper presentations and discussion. Articles will be published in the University of Illinois Law Review in 2014.
For more information, click here.
Hat Tip: Legal Scholarship Blog.
Monday, October 14, 2013
On November 1, the Elon Law Review, located in Greensboro, North Carolina, will host its fall 2013 symposium on the implications of United States v. Windsor and Hollingsworth v. Perry, the United State Supreme Court's two major marriage equality decisions from the Fall 2012 Term. The symposium is co-sponsored by the Marriage and Family Law Research Project of BYU Law School, located in Provo, Utah.
Friday, October 11, 2013
The October 2013 California Law Review includes "Appellate Review of Social Facts in Constitutional Rights Cases," by Caitlin E. Borgmann (CUNY); "Sticky Slopes," by David Schraub; and "Intellectual Property Doctrine and Mid-Level Principles," by David H. Blankfein-Tabachnick (Penn State, visiting), with a reply by Robert P. Merges (Cal-Berkeley).
The August 2013 Hastings Law Journal includes Symposium: From Bench to Society: Law and Ethics at the Frontier of Genomic Technology. From the introductory essay by Jamie S. King (Hastings), the symposium's purpose was to, "examin[e] the vast potential implications (both good and bad) of the next wave of major advances in genetic andgenomic testing for patients, providers, their families, the practice of medicine, and society as a whole."
Volume V, Number 1, Elon Law Review has the symposium, "A Radical Notion of Democracy: Law, Race, and Albion Tourgee, 1865-1905." Contributions include an introduction by Sally Green, "Reflections on Albion Tourgee's 1896 View of the Supreme Court: A "Consistent Enemy of Personal Liberty and Equal Rights," by Michael Kent Curtis (Wake Forest); "The Past as Prologue: Albion Tourgee and the North Carolina Constitution," by Judge Robert N. Hunter, Jr.; "The National Citizen's Rights Association: Precursor of the NAACP," by Carolyn L. Karcher (Temple, Liberal Arts); "The Legitimacy of Law in Literature: The Case of Albion W. Tourgee," by Brook Thomas; and "Adaline and the Judge: An Ex-Slave Girl's Journey With Albion W. Tourgee," by Naurice Frank Woods, Jr (UNC-Greensboro, African-American Studies). Touree was a Greensboro former, lawyer, judge, and novelist best known perhaps for representing Homer Plessey before the United States Supreme Court in Plessey v. Ferguson, 163 U.S. 537 (1896). See also here and here.
Volume 101, Number 4, Kentucky Law Review includes, "Stepping Into the Gap: Violent Crime Victims and the Right to Closure; and a Discursive Shift Away From the Zero Sum Resolutions," by Blanche Bong Cook; "White Collar Overcriminalization: Deterrence, Plea Bargaining, and the Loss of Innocence," by Lucian E. Dervan (Southern Illinois); "He Said, She Said, Let's Hear What the Data Say: Sexual Harassment in the Media, Courts, EEOC and Social Science," by Joni Hersch and Beverly Moran; and "Justice Holmes's Bad Man and the Depleted Purposes of Punitive Damages," by Jill Wieber Lens.
The Spring 2013 New England Law Review has its Symposium: Crisis in the Judiciary. There are links to the articles at the link. This symposium's primary focus is upon the challenges the judiciary faces by restrained budgets at the federal and state levels.
The August 2013 UCLA Law Revew has Symposium: Twenty-First Century Litigation: Pathologies and Possibilities.
Volume XVIII, Number 3, Fordham Journal of Corporate and Financal Law, includes articles by Dr. Markus Roth, Hilary J. Allen (Loyola NO), Benjamin D. Landry, Paul Rose (Ohio State) and Justin Schwartz.
Wednesday, October 9, 2013
South Texas Law Review will host its 20th Annual Ethics Symposium, Bankruptcy: Best Practices from the Bench and Bar, on October 25, 2013 at the Garrett Townes Auditorium on the South Texas College of Law campus in Houston.
Speakers include Hon. Jeff Bohm, Hon. Karen K. Brown, Hon. Marvin Isgur, Hon. David Jones and Hon. Letitia Z. Paul, all bankruptcy judges in the Southern District of Texas, plus several leading members of the Harris County bankruptcy bar. The full program is here.
Registration information is here (repaired link).
Tuesday, October 8, 2013
Gregory C. Sisk (St. Thomas MN) has posted, "Twilight for the Strict Construction of Waivers of Federal Sovereign Immunity," on SSRN. This paper surveys recent Supreme Court cases which mark a shift in interpretive approach to statutory language waiving soverign immunity. On first review, this strikes me to be an important paper that thoroughly analysis recent developments in the Court's soverign immunity construction and jurisprudence. Here is the abstract:
The Government of the United States has long benefited from two canons of statutory construction that tip the scales of justice heavily in its direction in civil litigation by those seeking redress of harm by that government: First, the federal government’s consent to suit must be expressed through unequivocal statutory text. Second, even when a statute explicitly waives federal sovereign immunity for a subject matter, the traditional rule has been that the terms of that statute “must be construed strictly in favor of the sovereign.” The restrictive effect of these rules has made a distinct difference in cases that truly matter to the lives and well-being of ordinary people.
Since the dawn of the new century, however, the Supreme Court’s increasingly common encounters with waivers of federal sovereign immunity are also becoming more conventional in interpretive attitude. During the first eleven years of the twenty-first century, the Court turned a deaf ear to the government’s plea for special solicitude in the substantial majority of instances and frequently declared that the canon of strict construction was unhelpful or ill-suited. In four sovereign immunity cases decided in the 2012 Term, the Court continued to evidence a commitment to text, context, and legislative history, unblemished by any presumption of narrow construction. Notably during oral arguments in this most recent term, multiple members of the Court openly challenged the government’s reach for broader immunity.
In these recent decisions, the Court increasingly accepts a dichotomy between the threshold question of whether sovereign immunity has been waived (requiring a “clear statement” by Congress) and the inquiry into how the statutory waiver should be interpreted in application (with the canon of strict construction fading away as a viable tool for statutory interpretation).
This paper is shown to be accepted for publication by North Carolina Law Review.
The Iowa Law Review with the Innocence Project of Iowa and the University of Iowa Center for Human Rights will present Professor Jon Gould on "Predicting Wrongful Convictions" on October 10. The free lecture will be held in the Levitt Auditorium on the Iowa law school campus. Gould is a professor at the American Univesity's Department of Justice, Law & Society and Principal Investigator at the department's Preventing Wrongful Convictions Project. Professor Gould's article, which includes three co-authors, is scheduled to be published in an upcoming issue of the Iowa Law Review.
Friday, October 4, 2013
Law Review symposia are typically planned months in advance and occasionally a law review's topic will prove later to have been fortuitously timed. This year, Wayne Law Review has had just such luck with their symposium next week (October 11), "A Wave of Change: Celebrating the 50th Anniversary of Michigan’s Constitution and the Evolution of State Constitutionalism."
As readers likely well know, the City of Detroit filed bankruptcy this summer and this filing has raised assorted questions regarding the city and state's consitutional duties and obligations, particularly relating to pension obligations. The Wayne symposium will be much broader than the Detroit bankruptcy issue, of course, but it goes without saying that now is as good as time as any to be hosting such a conference.
Thursday, October 3, 2013
The Texas A&M Law Review will host its fall IP symposium at the Fort Worth campus on Friday, October 25, 2013. Scheduled contributors are Sydney Beckman (Lincoln Memorial), Megan M. Carpenter (Texas A&M), Jon Garon (Northern Kentucky), Steven Jamar (Howard), Michael Murray (Valparaiso), Lucas Osborn (Campbell), Susan Richey (New Hampshire), Sergio Sarmiento (Fordham, Adjunct), and Peter Yu (Drake).
For information, contact the symposium editor.
Wednesday, October 2, 2013
The Washington University Law Review, Volume 90, Number 4, contains "Deconstructing Deem and Pass: A Constitutional Analysis of the Enactment of Bills by Implication," by Ronald Krotoszynski (Alabama); "Police Misconduct as a Cause of Wrongful Convictions," by Russell Covey (Georgia State); and "Shame in the Security Council," by Saira Mohamed (Cal-Berkeley).
The Harvard Journal of Law & Technology's Spring 2013 issue includes "Standards of Proof in Civil Litigation: An Experiment from Patent Law," by David L. Schwartz (Chicago-Kent) & Christopher B. Seaman (Washington & Lee); "Trademarks as Search Engine Keywords: Much Ado About Something," by David J. Franklyn (San Francisco) & David A. Hyman (Illinois); and "Patent Privateers: Private Enforcement's Historical Survivors," by John M. Golden (Texas).
The Summer 2013 Georgia Law Review has "A Reliance Approach to Precedent," by Hillel Y. Levin (Georgia); "Jurisdiction Sequencing," by Alan M. Trammell (Brooklyn); "State Power to Define Jurisdiction," by Samuel P. Jordan (St. Louis) and Christopher K. Bader; and "Interagency Litigation and Article III," by Joseph W. Mead.
Cleveland State Law Review, Volume 61, Number 2, features an entry in the longest law review title of 2013 contest, "Interpreting Precise Constitutional Text: An Argument for a New Interpretation of the Incompatibility Clause, the Removal & Disqualification Clause and the Religious Clause Test - A Response to Professor Josh Chafetz's Impeachment & Assassination," by Seth Barrett Tillman (National Univ. Ireland - Maynooth). Other contributions include, "Cyber Bullying and Free Speech: Striking an Age-Appropriate Balance," by Raul R. Calvoz, Bradley W. Davis, and Mark A. Gooden (Texas, Education); "Plaintiff Control and Dominaiton in Multidistrict Mass Torts," by S. Todd Brown (Buffalo); "Buying and Electorate: An Empirical Study of the Current Campaign Finance Landscape and How the Supreme Court Erred in Not Revisiting Citizen United, by William Alan Nelson, II (George Washington); and "Legal Malpractice in a Changing Profession: The Role of Contract Principals," by Vincent R. Johnson (St. Mary's).
The Charleston Law Review's Summer 2013 edition includes articles from its 5th Annual Law & Society Symposium, "Thirty Years with the Endorsement Test," with contributions by Carl M. Esbeck (Missouri), Edward M. Gaffney, Jr. (Valapraiso), Patrick M. Garry (South Dakota), William M. Janssen (Charleston), and Andrew Koppelman (Northwestern). United States Supreme Court Justice Sandra Day O'Connor (Retired) delivered the keynote addres at the symposium.
The Winter 2013 University of Dayton Law Review has "Comparison of United States AIA First-Inventor-To-File With Chinese First-To-File," by Jing Wang, Weidong Liu, Lei Zhang, Lei Han, Ningling Wang, Stacy Lewis, Christina N. Gervasi and Tim Irving.
The Spring 2013 Southern University Law Review includes "The SCI Investigation of the Iraq War: Part II: Politicization of Intelligence," by Robert Bejesky; "Deferred Action for Childhood Arrivals: Place a Bet or Wait on a Dream," by Michael Jeb Richard; and eight other articles on varied topics.
The Ocean and Coastal Law Review (Maine), Volume 18, Number 1, contains "Limited Solution to a Dangerous Problem: The Future of the Oil Pollution Act," by Garry A. Gabrison; "It's All Mine, Stay Off, and Let Me Do What I Please: An Abyss Between the Rights and Desires of Coastal Property Owners and Public Privileges and Protections?," by Colin H. Roberts; and "Trading the Oceans: The Brave "New" World of Seafood Revolution Contracts," by Nicholas Boston.
The Columbia Business Law Review's Volume 2013, Number 2, includes papers from the symposium, "The Past, Present and Future of Insider Trading Law: A 50th Anniversary Re-Examination of Cady Roberts and the Revolution it Began," with contributions by John C. Coffee, Jr. (Columbia), Joel Seligman, Stephen J. Crimmins, Edward Greene & Olivia Schmid and Donald C. Langevoort (Georgetown).
Monday, September 30, 2013
Hofstra Labor and Employment Law Journal has put out a call for papers. They are particularly interested in papers discussing the Affordable Care Act and the amendments to the ADA. For additonal information, download Download Call for Articles
Mitchell H. Rubinstein
Friday, September 27, 2013
The New York Law School Law Review is hosting a symposium titled, "The 100th Anniversary of the Revenue Act of 1913: Marking a Century of Income Tax Law in the United States," to be held on the campus on October 4, 2013. Edward Kleinbard (USC) is scheduled to deliver the keynote address.
Program and registration information is here.
Wednesday, September 25, 2013
Several law reviews did some catching up with summer releases. Here are a few:
The SMU Law Review's Winter 2013 volume includes articles by Antonio Gidi on opt-out class members, Janet Freilich on patent law, John Kip Cornwell on Sexting, Christina Mulligan on freedom of the press, Jessica M. Eaglin on "Against Neorehabilitation," Ester K. Hong on the Confrontation Clause in post-conviction proceedings and Anhana Malhotra on "The Immigrant and Miranda."
The Summer 2013 Texas Tech Law Review includes, "Are Twombly & Iqbal Affecting Where Plaintiffs File? A Study Comparing Removal Rates by State," by Jill Curry and Matthew Ward, "Oil and Gas Leases and Pooling: A Look Back and a Peek Ahead," by Bruce M. Kramer, "Viewing the 'Same Case or Controversy' of Supplemental Jurisdiction Through the Lens of the 'Common Nucleus of Operative Fact' of Pendent Jurisdiction," by Douglas D. McFarland, and "The Age of Allocation: The End of Pooling As We Know It," by Clifton B. Squibb.
Villanova Law Review, Volume 58, Number 4, includes the Norman J. Shachoy Symposium, "Assessing the CISG and Other International Endeavors to Unify International Contract Law: Has the Time Come for a New Global Initiative to Harmonize and Unify International Trade?"
The most recent Harvard Environmental Law Review, Vol. 37, No. 2, includes the lead article, "Administrative Proxies for Judicial Review: Building Legitimacy from the Inside Out," by Emily Hammond and David L. Markell, and other articles by Alex L. Wang, Margot J. Pollans, Linda Breggin & D. Bruce Meyers, Jr., and Brendan C. Selby. Links to the articles are available at the link.
The Indiana Health Law Review includes papers from the AALS Symposium "Imagining the Next Quarter Century of Health Care Law" with contributions by Gaia Bernstein (article link), Kristin Madison, Barbara J. Evans, Peter J. Hammer and Efthimios Parasidis.
The Spring 2013 Florida Coastal Law Review includes "Drafting Effective Noncompete Clauses and Other Restrictive Covenants: Considerations Across the United States," by Kyle B. Sill.
Volume 47, No. 3, New England Law Review includes the symposium, "Crisis in the Judiciary," with articles a Forward by Stewart D. Aaron and contributions byDaniel J. Hall & Lee Suskin, Dr. Roger E. Hartley, Donald Campbell, Marie D. Natoli, and Martha F. Davis.
The Summer 2013 George Mason Law Review includes the 16th Annual Antitrust Symposiumwith remarks by Jeffrey Rosen and articles by Frank Pasquale, Catherine Tucker, Adam Thierer, Allen P Grunes, and James C. Cooper. Links to the articles are available at the link
The Spring 2013 Harvard Journal of Law & Technology includes Standards of Proof in Civil Litigation: An Experiment from Patent Law by David L. Schwartz & Christopher B. Seaman, Trademarks as Search Engine Keywords: Much Ado About Something? by David J. Franklyn & David A. Hyman and Patent Privateers: Private Enforcement's Historical Survivors by John M. Golden.
The Summer 2013 Tennessee Law Review includes the symposium, "TVA v. Hill: The Greatest Little Story Never Told" with contributions by Becky L. Jacobs (Forward), Dr. David A. Etnier (Introduction), Zygmunt J. B. Plater, Patrick A. Parenteau, and Henry S. Mattice, Jr., and a panel discussion transcript.
The Washington University Journal of Law & Policy, Volume 42, includes the symposium, "Privilege Revealed: Past, Present and Future" with contributions by Stephanie M. Wildman, Arthur F. McEnvoy, Bela August Walker, Lisa C. Ikemoto, Meera E. Deo, Danielle Kie Hart, and Barbara J. Flagg.
Friday, July 5, 2013
The June 2013 Yale Law Journal includes a symposium on the iconic Warren-Era case Gideon v. Wainwright. This issue includes:
- Why Civil Gideon Won’t Fix Family Law, Rebecca Aviel;
- Gideon Exceptionalism?, John H. Blume and Sheri Lynn Johnson;
- Fifty Years of Defiance and Resistance After Gideon v. Wainwright, Stephen B. Bright & Sia M. Sanneh;
- Poor People Lose: Gideon and the Critique of Rights, Paul D. Butler;
- Celebrating the “Null” Finding: Evidence-Based Strategies for Improving Access to Legal Services, Jeanne Charn;
- Race and the Disappointing Right to Counsel, Gabriel J. Chin,
- Participation, Equality, and the Civil Right to Counsel: Lessons from Domestic and International Law, Martha F. Davis;
Gideon’s Migration, Ingrid V. Eagly;
- Searching for Solutions to the Indigent Defense Crisis in the Broader Criminal Justice Reform Agenda, Roger A. Fairfax, Jr.;
- Gideon’s Amici: Why Do Prosecutors So Rarely Defend the Rights of the Accused?, Bruce A. Green;
Valuing Gideon’s Gold: How Much Justice Can We Afford, M. Clara Garcia Hernandez & Carole J. Powell;
- Investigating Gideon’s Legacy in the U.S. Courts of Appeals, Emily Hughes;
- An Immigration Gideon for Lawful Permanent Residents, Kevin R. Johnson;
- Gideon at Guantánamo, Neal Kumar Katyal;
- Enforcing Effective Assistance After Martinez, Nancy J. King;
- Gideon’s Law-Protective Function, Nancy Leong;
- Gideon’s Shadow, Justin Marceau;
Gideon at Guantánamo: Democratic and Despotic Detention, Hope Metcalf & Judith Resnik;
- Fear of Adversariness: Using Gideon To Restrict Defendants’ Invocation of Adversary Procedures, Pamela R. Metzger;
- Federal Public Defense in an Age of Inquisition, David E. Patton;
- Effective Trial Counsel After Martinez v. Ryan: Focusing on the Adequacy of State Procedures,
Eve Brensike Primus;
Implicit Racial Bias in Public Defender Triage, L. Song Richardson & Phillip Atiba Goff;
- Effective Plea Bargaining Counsel, Jenny Roberts;
Lessons from Gideon, Erwin Chemerinsky; and
Gideon at Fifty: A Problem of Political Will, Carol S. Steiker
Tuesday, May 28, 2013
Stephanos Bibas (Penn) has posted "Justice Kennedy's Sixth Amendment Pragmatism," an essay written in conjunction with an appearance at a McGeorge Law Review symposium on Justice Kennedy's jurisprudence, on SSRN. Here is the abstract:
This essay, written as part of a symposium on the evolution of Justice Kennedy’s jurisprudence, surveys three areas of criminal procedure under the Sixth Amendment: sentence enhancements, the admissibility of hearsay, and the regulation of defense counsel’s responsibilities. In each area, Justice Kennedy has been a notable voice of pragmatism, focusing not on bygone analogies to the eighteenth century but on a hard-headed appreciation of the twenty-first. He has shown sensitivity to modern criminal practice, prevailing professional norms, and practical constraints, as befits a Justice who came to the bench with many years of private-practice experience. His touchstone is not a bright-line rule derived from history, but a flexible approach that is workable today. Notwithstanding the press’s assumptions about him as a swing Justice, his approach is remarkably consistent and principled.
The essay explores four important themes in his Sixth Amendment jurisprudence. First is the use of history. Justice Kennedy is a moderate originalist, looking to history where it works but adapting it to modern realities, especially to new circumstances and new problems. Second is his common-law incrementalism and flexibility, in contrast to some other Justices’ rigid formalism. Third is Justice Kennedy’s structural approach to the Constitution as fostering dialogue among branches and levels of government. He emphasizes federalism and checks and balances, not a strict separation of powers. Fourth is his use of practicality and common sense to leaven theoretical abstractions. He looks closely at the purposes of laws, their effects, the lessons of expertise, and the existence of alternative solutions. In interpreting the Sixth Amendment, then, Justice Kennedy is fundamentally a practical lawyer, applying the humble wisdom born of experience rather than the rigid extremes that flow from a quest for theoretical purity.
This essay will appear in the McGeorge Law Review's symposium edition in Volume 44.