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Volume 117
50
  • Presidential Debates and Deliberative Democracy
    Charles W. Collier, Sunday, 15 June 2008

    http://www.flickr.com/photos/grittycitygirl/992684143/Consider democracy in America through the lens of the presidential debates. It is not a pretty picture.

    From a high point in the nineteenth century (for example, the lengthy Lincoln-Douglas Senate campaign debates of 1858) a declining trajectory can be traced to the present day, with a marked acceleration in the Age of Television. To our polity’s discredit, the presidential debate has long since ceased to be a dialogue that might shed light on the candidates’ true powers of deliberation. The key to reversing this long decline, I believe, lies in an unlikely place: in the structural features of the legal trial.

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  • The Access to Knowledge Mobilization and the New Politics of Intellectual Property
    Amy Kapczynski, Saturday, 31 May 2008

    http://www.flickr.com/photos/claudio/327442540/ Once the domain of experts, intellectual property (IP) law today has become the object of popular mobilization. Activists across the globe are campaigning against strong IP laws and working together to develop new conceptual rubrics to counter the legitimacy of exclusive rights in information. This access to knowledge (A2K) mobilization is having some success, and should cause us to revisit our understanding of the tectonics of IP law. As my recent article explains, neither the recent expansion of IP law nor the new countermobilization can be adequately explained without an account of the role of interpretation in political action—and in particular, without an account of how acts of political framing both affect and are affected by law. Once we develop such accounts, we can see the special gravitational pull that law can exert on groups engaged in political contests. This pull has potentially important implications for how we understand the nature and effects of legality, especially internationally.

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  • Does Dialogue Make a Difference? Structural Change and the Limits of Framing
    Peter Drahos, Saturday, 31 May 2008

    How much difference does the mechanism of framing make to global regulatory outcomes? Structural explanations of regulatory globalization that are rooted in state power and self-interest would dismiss the explanatory value of framing. Put simply, words are cheap and do not matter to the final outcomes of globalization. In her recent article, Amy Kapczynski challenges these structural explanations, asserting that the theory of framing offers a better account of the politics of intellectual property (IP) than public choice theory. I am in broad agreement with Kapczynski about the importance of incorporating framing into a theory of collective action. In this Response, however, I emphasize several limits to the power of framing in determining the outcomes of global politics.

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  • IP Essentialism and the Authority of the Firm
    Ruth L. Okediji, Saturday, 31 May 2008
    The goal of translating the diffuse gains from domestic intellectual property (IP) protection in the global North into an international setting characterized by vast disparities in national income levels, diverse cultural and historical contexts, and distinct legal institutions has long caused pathological behavior in global IP politics. The A2K movement reflects this pathology in new ways. The paradox of the movement, well captured in Amy Kapczynski’s article, is that it depends so integrally on the core assumptions that sustain the legitimacy of the international IP system, the most essential of which is that technological innovation is a principal cause of national economic growth. Yet fostering endogenous economic growth has not occupied a central place in A2K strategies. If altering the terms and text of the debate over the global conditions of IP protection is the organizational hook to the A2K mobilization, it is striking that the fundamental theme of the debate—inducing economic growth—is not central to the movement’s internal self-legitimation. In this brief Response, I put forward a few insights highlighting the discursive nature of the movement, the entrenchment of Coase’s firm in rationalizations of the global necessity for IP protection, and the movement’s own reliance on IP and market rules to maintain its position of influence in multiple international fora.

     

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  • "One of These Things Does Not Belong”: Intellectual Property and Collective Action Across Boundaries
    Tomiko Brown-Nagin, Saturday, 31 May 2008

    It is a fine day when I am able to fondly recall a childhood game, reflect upon social movement theory, and ponder the connections between the public interest and private law, all at once. Amy Kapczynski’s article brought me to this delightful place. The childhood game, which featured four cards, each picturing four distinct items, tested analogical reasoning. The game’s objective: to figure out which of the things “did not belong.” I found this exercise endlessly fascinating, just as I did Kapczynski’s boundary-crossing rumination on the A2K mobilization. The author links disparate actors and subjects, domestic and international developments, politics and markets, law and politics, the Third and the First Worlds, public choice and social movement theory. In her account, everything belongs. The challenge for the reader is to discriminate: to consider the discrete pieces of this sprawling intellectual mosaic and assess how well each part fits together to form a coherent theory of how law and framing mediate collective action.

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  • A Dialogue on Teaching the Constitution: A Reply to Ernest Young's "The Constitution Outside the Constitution"
    The Pocket Part, Friday, 16 May 2008

    In this issue of The Pocket Part Sanford Levinson writes a response to Ernest Young's recent article in The Yale Law Journal, The Constitution Outside the Constitution, and discusses the needs and challenges inherent to teaching the Constitution. In the second piece of this issue Professor Young writes a rebuttal to Professor Levinson's response, continuing the dialogue about the breadth of constitutional law and what it should encompass in legal education.

     

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  • Reconsidering the Syllabus in “Constitutional Law”
    Sanford Levinson, Friday, 16 May 2008

    http://www.flickr.com/photos/jessemichaelnix/1144152067/Ernie Young has written a superb article on what he engagingly calls “the Constitution outside the Constitution.” Like analysts before him, most prominently Karl Llewellyn, he notes that our system, like all complex systems, can be understood only by considering all of the conventions that could never be found in the text of the document (and, on occasion, may even contradict the text). A subtext of his article, with which I entirely agree, is that contemporary students are disserved by what constitutes the present syllabus of the standard-model course on “constitutional law.” Yet Professor Young can’t quite liberate himself from the notion that our courses should focus on existing legal “controversies,” or on what is presented to courts in litigation, instead of on the almost literally thoughtless and optimistic assumptions we make about the benevolence of all aspects of our constitutional order as framed in 1787 and maintained, to an almost incredible degree, over two centuries later.

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  • Curricula and Complacency: A Response to Professor Levinson
    Ernest A. Young, Friday, 16 May 2008

    Back when my friend Sandy Levinson and I were both on the Texas law faculty, the assistant dean for communications proposed a promotional tour featuring Professor Levinson’s book Our Undemocratic Constitution and my recently published piece in this journal, The Constitution Outside the Constitution. The plan was that Levinson would say the Constitution is bad, and I would add that it isn’t really even the Constitution. In the event, we did not get to take our show on the road, so I’m grateful for the present opportunity to address the intersection of our respective projects. To the extent that criticism emerges from his many kind comments, Levinson’s main complaints have to do with “complacency” about both the law school curriculum and the merits of the canonical Constitution. The point is a fair one. As will become evident, I am even more “complacent” than Levinson gives me credit for. The question is whether such complacency can be defended.

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  • Renewing the Promise of Ending Voting Discrimination: A Return to an Effective Section 5 Retrogression Standard
    Joaquin G. Avila, Monday, 05 May 2008

    http://www.flickr.com/photos/ari/2248827699/ The purpose of Professor Nathaniel Persily’s article, The Promise and Pitfalls of the New Voting Rights Act, is to present an interpretation of the discriminatory effects prong of the new section 5 that will have a greater probability of surviving constitutional scrutiny. In presenting this interpretation, Professor Persily addresses several major issues that delineate the contours of the new section 5 retrogression standard and its application to redistricting plans. Yet, upon closer examination, the proposed new interpretation is very similar to the old retrogression standard with an important difference. The proposed definition of “uniquely preferred candidate of choice” will diminish the opportunity of minority communities to prevent the implementation of redistricting plans that have a retrogressive effect on minority voting strength.

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  • The Constitutional Relevance of Alleged Legislative Dysfunction
    Nathaniel Persily, Monday, 05 May 2008

    The role of an election law scholar these days is much like that of an anthropologist specializing in the study of human sacrifice. At a certain point, some of us in the field suppress natural human impulses of disgust and revulsion and replace them with fascination and curiosity. How else does one stomach the pervasive partisan greed, the wild conspiracy theories, the actual conspiracies, the pretextual arguments, and the often vicious attempts to use the law for partisan and personal gain? My article The Promise and Pitfalls of the New Voting Rights Act may appear too descriptive and anodyne to some, because of its attempt to treat this important legislation as a phenomenon that needs to be explained before it can be judged. This Reply gives me the opportunity to offer some of the judgment that might have been lacking in the principal article and to reply to critics who have responded in print and those who have responded as part of litigation surrounding the constitutionality of the new Voting Rights Act (VRA).

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  • The Paradox of Retrogression in the New VRA: Comment on Persily
    David L. Epstein & Sharyn O’Halloran, Monday, 05 May 2008

    The Court ruled in Georgia v. Ashcroft that states, when redistricting, could try to increase “substantive representation”—the degree of influence that minority voters have on policy outcomes—even at a possible cost to “descriptive representation”—the number of minority candidates elected to office. As reviewed in Nathaniel Persily’s article The Promise and Pitfalls of the New Voting Rights Act, Congress attempted to overrule Georgia v. Ashcroft in the 2006 Voting Rights Act Renewal Act (VRARA), claiming that the VRARA would return redistricting law to its pre-Ashcroft state and disallow tradeoffs between substantive and descriptive representation. It is still not clear how the new standards should be implemented, though, and Persily suggests that retrogression in descriptive representation be measured as the total expected number of minority candidates of choice elected to office, according to a given redistricting plan.

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  • Summer Submissions Announcement
    The Pocket Part, Monday, 28 April 2008
    The Yale Law Journal Pocket Part will conclude its weekly submissions considerations Thursday May 8th and will consider submissions submitted over the summer on a monthly basis.
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  • How “Swingers” Might Save Hollywood from a Federal Pornography Statute
    Alan R. Levy, Monday, 28 April 2008

    http://www.flickr.com/photos/caroscuro/155754390/ Section 2257 of title 18 of the U.S. Code requires that “producers” of photographs and films of “actual sexually explicit conduct” create and maintain records documenting the age of the performers depicted in those performances. The statute’s purpose is to ensure that the performers are not minors. This recordkeeping statute has generally been limited to the adult film industry, although recently the statute’s impact has crept into the realm of mainstream film and television. For over two decades, the statute has withstood numerous constitutional challenges by the adult film industry and civil libertarian organizations. On October 23, 2007, however, the U.S. Court of Appeals for the Sixth Circuit held that § 2257 was overbroad on its face and therefore unconstitutional.

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  • First, Do No Harm: Why a Commissioner for Standards Is Unhealthy for the American Body Politic
    Paul M. Thompson, Wednesday, 16 April 2008
    http://www.flickr.com/photos/bohnc/26143006/Recently, Senator Robert Bennett expressed a sentiment that aptly summarizes my reaction to Josh Chafetz’s call to change ethics enforcement in Congress. “Washington is the only place I know where, when people break the law, our reaction is . . . [to] make the law tougher.” In recent years, several members of Congress have violated ethics rules, and a few have broken the law. Unlike Chafetz, however, I don’t view these events as evidence of a system in disrepair. Instead, they are proof of one that works. Like the fever that accompanies a virus, they are a sign that our body politic can heal itself.
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  • Curing Congress’s Ills: Criminal Law as the Wrong Paradigm for Congressional Ethics
    Josh Chafetz, Wednesday, 16 April 2008

    Paul M. Thompson’s reply to my Comment proposing the creation of Congressional Commissioners for Standards proceeds in two steps. First, he argues that our current system of ethics enforcement, dominated by the ethics committees and the Department of Justice, is working just fine. And second, he argues that the establishment of Congressional Commissioners would create, rather than solve, problems. Both of these claims suffer from the same basic defect: they assume that congressional ethics enforcement should be just like criminal law enforcement. I suggest, however, that this assumption is fundamentally misguided. Congressional ethics is not simply about punishing rulebreakers; rather, it aims to promote public trust in Congress and its members. With this very different goal in mind, it is clear not only that our current system is in shambles, but also that the creation of Congressional Commissioners would be a useful corrective.

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  • Call for Papers: Symposium on Sovereign Wealth Funds
    The Pocket Part, Sunday, 13 April 2008
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  • Call For Papers: Virtual Worlds Symposium
    The Pocket Part, Sunday, 13 April 2008
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  • Conservation Easement Tax Credits in Environmental Federalism
    Christen Linke Young, Monday, 31 March 2008

    Faced with a frustrating lack of federal leadership, environmentalists are increasingly focusing their energy on state and local efforts to protect our natural heritage. Many high profile projects, however, rely on unpopular mandatory standards and conflict with federal regulatory priorities. Consequently, programs like the California and Vermont fuel efficiency standards have met with political resistance at both the state and federal levels. As an alternative, states interested in resource preservation are increasingly reliant on tax incentives to encourage voluntary efforts. State conservation tax credits, for example, incentivize the private creation of conservation easements—restrictive covenants that permanently protect land from future development. Conservation easements have emerged as an effective tool for habitat protection, erosion control, and landscape-level resource conservation. Moreover, easement incentive programs find broad political support because they leave landowners with substantial control over their property. Thus, conservation tax credits are politically viable even among constituencies that do not traditionally embrace environmental goals.

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  • A Procedural Rule and a Substantive Problem: Legislative Hawks and the Concentration of Power in Georgia’s Speaker of the House
    Kamal Ghali, Monday, 31 March 2008

    Just hours after the Georgia General Assembly convened in January 2005, the newly Republican-led House of Representatives elected the first Republican Speaker of the House in 135 years. The House then launched its first official day of business with a dramatic change in its internal rules by passing House Rule 11.8—a rule that gives the Speaker unprecedented legal power to control the function of legislative committees. This Commentary argues that Georgia’s House Rule 11.8 is an abuse of the committee system, and that it should push legal scholars to theorize about the normative value of allowing such laissez-faire organization of our legislatures.

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  • Postmortem Rights of Publicity: The Federal Estate Tax Consequences of New State-Law Property Rights
    Mitchell M. Gans, Bridget J. Crawford & Jonathan G. Blattmachr, Monday, 31 March 2008

    California recently passed legislation that creates retroactive, descendible rights of publicity. The New York State Assembly is poised to enact similar legislation. Legal recognition of postmortem rights of publicity permits a decedent’s named beneficiaries or heirs to control (and financially benefit from) use of a deceased personality’s image and likeness. Legislators, proponents of these laws, and legal commentators have overlooked two significant federal estate tax consequences of these new state law property rights. First, a descendible right of publicity likely will be included in a decedent’s gross estate for federal estate tax purposes. Second, the estate tax value of rights of publicity easily could exceed the estate’s liquid assets available to pay taxes. These tax concerns could be eliminated, however, by rewriting the statutes to limit a decedent’s ability to control the disposition of any postmortem rights of publicity.

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  • Taking States out of the Workplace
    Jeffrey M. Hirsch, Monday, 31 March 2008

    It is perhaps counterintuitive to respond to a call for papers on new developments in state law by arguing that there should be no developments at all. With regard to one area of law, however, that is exactly what I am going to do. More precisely, I argue for one general development—the elimination of state authority to regulate the workplace.

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  • State Legislatures
    The Pocket Part, Monday, 31 March 2008

    http://www.flickr.com/photos/kelloggphotography/418459742/ This week, The Pocket Part presentes the second of two issues on recent developments in courts and legislatures. In this installment, we survey a variety of interesting trends among state legislatures.


     

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  • Three Questions about Hybrid Rights and Religious Groups
    Frederick Mark Gedicks, Sunday, 23 March 2008

    Murad Hussain argues that the courts should adopt a theory of hybrid rights to protect religious minority groups engaged in civic-minded speech. Why extend this protection only to religious minority groups; aren’t secular minorities just as vulnerable? And why only to religious groups who engage in civic dialogue; isn’t private religious expression just as meaningful? And why, of all conceptual possibilities, would one choose hybrid rights to protect anything; do such rights even exist in constitutional law?

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  • Religious Expression in the Balance: A Response to Murad Hussain's Defending the Faithful
    Bernadette Meyler, Sunday, 23 March 2008

    In the aftermath of September 11, 2001, the government has adopted a number of counterterrorism measures that burden Muslim-Americans’ religious practices. Murad Hussain’s Note attempts to overcome the doctrinal obstacles facing individuals’ pursuit of legal claims against these measures. Because of the deference granted the government when it alleges national security interests, the immediate effects of this approach may be limited. Over time, however, Hussain’s doctrinal strategy, by alerting courts to the kinds of group harms that government action can generate, may persuade them to place more value on Muslim individuals’ religious exercise. To the extent that courts are able to conceptualize the harms at issue differently, they may be less willing to simply accede to governmental claims of a compelling state interest and more willing to counterpoise them in the balance against the forms of religious expression at stake.

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  • Group Harms in Antiterrorism Efforts: A Pervasive Problem with No Simple Solution
    R. Richard Banks, Sunday, 23 March 2008

    In Defending the Faithful: Speaking the Language of Group Harm in Free Exercise Challenges to Counterterrorism Profiling, Murad Hussain moves beyond the longstanding concern with governmental profiling on the basis of racial or religious group status. Hussain contends that antiterrorism profiling on the basis of religiously inspired conduct or cultural practices may also inflict “pervasive dignitary and stigmatic harms upon the Muslim American community.” Hussain proposes a doctrinal remedy for courts’ failure to address such group harms.

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  • Reweighting the Balance: Religious Groups, Mortal Threats, and “Hybrid Situations”
    Murad Hussain, Sunday, 23 March 2008

    http://www.flickr.com/photos/65271786@N00/792280502/sizes/o/Recent attempts to falsely portray presidential candidate Barack Obama as a Muslim and a tool of our nation’s enemies serve as vivid reminders that many Americans doubt the loyalties of their Muslim compatriots. These smears exploit the perception that conduct expressive of Muslim identity—like attending a “Muslim” school or wearing “Muslim” garb—is inherently suspicious. Some counterterrorism profiling, even when based on “objective” intelligence, has employed similar logic by targeting activities supposedly probative of terrorism, yet which correlate reliably with little except being Muslim. Such profiling can inflict pervasive harms upon American Muslims as a group, not least by reinforcing the prejudices that make the Obama rumors so virulent.

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  • State Court Reform of the American Jury
    Hon. Randall T. Shepard, Monday, 17 March 2008

    The American jury’s prominent place on any short list of our most sacred endowments from older Western societies has tended to obscure both its tragic fall from grace and its recent renewal at the hands of state courts.

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  • Justice “Promptly, and Without Delay”: Court Reform and Judicial Independence
    Hon. Margaret H. Marshall, Monday, 17 March 2008
    The Massachusetts Constitution of 1780, the world’s oldest, still-governing written constitution, guarantees to all “[e]quality under the law” and the “impartial interpretation of the laws . . . by judges as free, impartial and independent as the lot of humanity will permit.” It also guarantees the “impartial . . . administration of justice,” and justice obtained “completely, and without any denial; promptly, and without delay.” The reason John Adams, the principal drafter of the Massachusetts Constitution, was concerned with equally available substantive justice needs little explication. But why would Adams also concern himself with, and raise to constitutional dimension, the administration of justice, the quotidian business of filing and docketing cases, shepherding them through the court system, and delivering to the litigants final judgments and orders?
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  • State Courts
    The Pocket Part, Monday, 17 March 2008

    http://www.flickr.com/photos/tilaneseven/2178601937/This week, The Pocket Part presents the first of two issues on recent developments in state courts and legislatures. In this installment, we are honored to present Commentaries by two influential state jurists: Chief Justice Randall T. Shepard of the Indiana Supreme Court and Chief Justice Margaret H. Marshall of the Massachusetts Supreme Judicial Court.

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  • Emerging Trends in State Law
    The Pocket Part, Monday, 17 March 2008

    http://www.flickr.com/photos/emagic/56208761/In this Pocket Part Podcast, Chief Justice Randall T. Shepard of the Indiana Supreme Court and Chief Justice Margaret H. Marshall of the Massachusetts Supreme Judicial Court discuss emerging issues in state courts, as well as the academy's influence on state court decision-making. Pocket Part editor, Embry Kidd moderates the discussion.

    Click here to hear Emerging Trends in State Law with Chief Justices Shepard and Marshall.

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  • Natural-Born Citizen Clause and Presidential Eligibility
    The Pocket Part, Sunday, 02 March 2008

    http://www.flickr.com/photos/mrsdarcy/473491338/ Last week, the usually obscure Natural-Born Citizen Clause of Article II of the Constitution became the subject of newfound media attention. As the New York Times reported, the candidacy of Sen. John McCain, born in the Panama Canal Zone, has revived a "musty debate": Is a person born abroad of American parents a "natural born Citizen" eligible to be president? As noted in the article, Jill Pryor, writing in the Yale Law Journal twenty years ago, examined this very issue.

     

    Click here to read Jill A. Pryor, Note, The Natural-Born Citizen Clause and Presidential Eligibility: Resolving Two Hundred Years of Uncertainty, 97 Yale L.J. 881 (1988).

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  • Antislavery Courts
    Jenny S. Martinez, Sunday, 24 February 2008

    In my article Antislavery Courts and the Dawn of International Human Rights Law in the January edition of this Journal, I discuss the role of international courts in the suppression of the transatlantic slave trade in the nineteenth century.

    As the article explains, between 1817 and 1871, bilateral treaties between Britain and several other countries (eventually including the United States) led to the establishment of international courts for the suppression of the slave trade. Though all but forgotten today, these antislavery courts were the first international human rights courts. They were made up of judges from different countries. They sat on a permanent, continuing basis, and they applied international law. The courts explicitly aimed to promote humanitarian objectives. Though the courts were extremely active for only a few years, over the treaties’ lifespan, the courts heard more than 600 cases and freed almost 80,000 slaves found aboard illegal slave trading vessels. During their peak years of operation, the courts heard cases that may have involved as many as one out of every five or six ships involved in the transatlantic slave trade.

    The history of the antislavery courts reveals a more complex interrelationship between state power, moral ideas, and domestic and international legal institutions than many contemporary theories of international law and relations acknowledge, and has important implications for modern attempts to enforce human rights standards on an international basis.

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  • Correspondence
    Jenny S. Martinez, Sunday, 24 February 2008

    The British judges carried on an active correspondence with the Foreign Office in London, with British colonial officials, foreign governments, and ships captains. Topics ranged from the mundane—illnesses, budgetary and administrative matters—to the profound, including reflections on the inhumanity of the slave trade.

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  • Court Proceedings
    Jenny S. Martinez, Sunday, 24 February 2008

    Like British admiralty courts and courts in many civil law countries, the international slave trade courts did not rely on live, in-court testimony, but instead on written depositions from witnesses taken in advance of the hearing. The registrar of the court would administer a detailed, fixed list of questions to the witnesses and record their answers. Ships documents, such as logs and registration papers, would fill out the dossier.

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  • Liberated Slaves
    Jenny S. Martinez, Sunday, 24 February 2008

    Like British admiralty courts and courts in many civil law countries, the international slave trade courts did not rely on live, in-court testimony, but instead on written depositions from witnesses taken in advance of the hearing. The registrar of the court would administer a detailed, fixed list of questions to the witnesses and record their answers. Ships documents, such as logs and registration papers, would fill out the dossier.

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  • Ships
    Jenny S. Martinez, Sunday, 24 February 2008

    Many of the trials concerned the validity of the ships’ papers, and the courts’ records contain many bundles of original records found on the captured ships. For example, the papers certifying the ship’s nationality or ownership might have been found to be forged or otherwise irregular. During the time period when the slave trade was prohibited by some nations only north of the equator, the ship’s log was sometimes altered to suggest that the ship had been sailing in legal latitudes when it had, in fact, sailed in waters where the slave trade was prohibited. During this period of transition from legality to illegality, some ships carried passports defining where they could sail and how many slaves they could carry, like the one below, issued by the Portuguese government.

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  • Overcoming Deference to Administrative Regulation: Expanding the State Children’s Health Insurance Program (SCHIP)
    Manav Bhatnagar, Wednesday, 09 January 2008

    http://www.flickr.com/photos/dmason/5901759/ The Department of Health and Human Services (HHS) recently promulgated restrictions on the State Children’s Health Insurance Program (SCHIP), which insures nearly six million children by offering matching funds for states’ health care programs. Most significantly, the restrictions prohibit states from expanding SCHIP eligibility until they meet an inflexible benchmark: ninety-five percent coverage for children whose families’ income is below twice the federal poverty level (FPL). By stifling states’ efforts to expand SCHIP coverage, these new restrictions will have adverse consequences for access to health care for low-income children. And the promulgation of stricter federal requirements has implications not only for SCHIP, but for other federally-funded health programs administered by states, including Medicaid. In order to protect state health policy initiatives from these and other harmful federal restrictions, I propose a legal strategy for advocates to (1) force federal agencies to follow more democratic processes and (2) combat the traditional deference accorded to agency interpretations in the health care context.

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  • The Pocket Part: 2007 Highlights
    The Pocket Part, Sunday, 30 December 2007
    This week, The Pocket Part is bringing back some of our most popular and influential issues of the year. We chose three different issues that represent the diverse array of scholarship that The Pocket Part has published. We hope that you have enjoyed reading The Pocket Part in the past year, and we look forward to publishing new and interesting pieces in 2008.
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  • In Defense of Guantanamo Bay
    The Pocket Part, Sunday, 30 December 2007
    In this candid essay , former Chief Prosecutor of the Military Commissions, Morris Davis, gives a first hand account of the conditions on Guantanamo Bay. In particular, Colonel Davis defends the judicial procedures of the military commissions as both fair and transparent. Recently, Colonel Davis stepped down from his role as Chief Prosecutor after a public conflict with the Bush administration over these very issues.
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  • White Collar Criminals
    The Pocket Part, Sunday, 30 December 2007

    In a controversial essay, Ellen Podgor argues that the Federal Sentencing Guidelines for white collar crimes are too harsh. Fraud is not comparable to aiding terrorist organizations. Furthermore, white collar criminals are less likely to recidivate than other criminals. Finally, white collar criminals simply do not threaten our sense of security in the way that violent criminals do.

    In response, Andrew Weissmann and Joshua A. Block attack Podgor's assertion that white collar criminals are severely punished. Although there are high profile outliers, the average white collar criminal does not serve jail sentences comparable to murders or terrorists. Furthermore, Podgor's suggestion that white collar criminals are more deserving of leniency is problematic and potentially discriminatory.

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  • Congressional Representation for Puerto Rico
    The Pocket Part, Sunday, 30 December 2007

    José R. Coleman Tió argues the current commonwealth relationship between the United States and Puerto Rico is insufficient to satisfy Puerto Rico's democratic aspirations. Coleman believes that Puerto Rico can and should be given congressional representation through federal legislation.

    In response, Christina Duffy Burnett and John C. Fortier argue that Coleman cannot surmount the constitutional and normative challenges to his proposal. Taking a different perspective, Ezra Rosser argues that early treaties with Native American tribes provide historical examples of similar non-state congressional representation.

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  • Northwest Austin Municipal Utility District No. 1 (NAMUDNO) v. Gonzales
    The Pocket Part, Sunday, 09 December 2007

    Nathaniel Persily’s article, The Promise and Pitfalls of the New Voting Rights Act, recently became a focus of attention in a pending case challenging section 5 of the VRA on constitutional grounds, Northwest Austin Municipal Utility District No. 1 (NAMUDNO) v. Gonzales, No. 1:06-cv-01284-PLF (D.D.C. Aug. 4, 2006).

    The plaintiff in the case, a Texas utility district covered by section 5 of the VRA, argues that the requirement that it obtain federal preclearance for changes to its election practices is not a congruent and proportional response to current voting rights problems – and therefore that it exceeds Congress’s enforcement powers under the Fourteenth and Fifteenth Amendments.The Justice Department and defendant-intervenors argue that section 5 is a valid exercise of Congress’s enforcement powers, and that evidence of ongoing voting rights violations demonstrates the continued need for section 5.

    In advance of the September 17 oral argument, the three-judge panel hearing the NAMUDNO case directed the parties to submit comments on Professor Persily’s forthcoming article.

    Below you will find the parties’ briefs in the case, as well as the comments they filed regarding the Persily article in response to the court’s order.

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  • The New Voting Rights Act
    The Pocket Part, Sunday, 09 December 2007

    http://www.flickr.com/photos/lakelandlocal/285467330/ This week The Pocket Part is publishing the first of two issues discussing Nathaniel Persily’s article, The Promise and Pitfalls of the New Voting Rights Act. In this issue, we present Professor Persily’s summary of his article with responses by Ellen Katz and Richard Pildes.

    A forthcoming issue will feature additional responses to Professor Persily’s article. In addition, Professor Persily will respond to the comments on his article and discuss issues raised in a pending constitutional challenge to section 5 of the VRA.

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  • The Promise and Pitfalls of the New Voting Rights Act (VRA)
    Nathaniel Persily, Sunday, 09 December 2007

    The story of the 2006 reauthorization of the Voting Rights Act (VRA) is one that should interest scholars of legislation and constitutional law, as well as the expected and ever-burgeoning audience of election law enthusiasts. The Promise and Pitfalls of the New Voting Rights Act attempts to tell this story by identifying the constitutional and political constraints on the legislative process that led the law to take the form that it did, and to provide an interpretation of the law’s central provision for which surprisingly little legislative history exists.

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  • Mission Accomplished?
    Ellen D. Katz, Sunday, 09 December 2007

    Is Texas really worse than Ohio? Comparing the two—and, more broadly, the regions subject to the renewed Voting Rights Act with those that are exempt—provides critical support for the statute’s validity.

    My study of voting rights violations nationwide suggests that voting problems are more prevalent in places “covered” by the Act than elsewhere. Professor Persily’s careful and measured defense of the renewed statute posits that this evidence is the best available to support reauthorization. The evidence matters because if, as critics charge, the regional provisions of the Voting Rights Act (VRA) are no longer needed, minority voters should confront fewer obstacles to political participation in places where additional federal safeguards protect minority interests than in places where these safeguards do not operate. In fact, minority voters confront more.

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  • Political Avoidance, Constitutional Theory, and the VRA
    Richard H. Pildes, Sunday, 09 December 2007

    Constitutional theory and design have been dominated by the specter of legislative and executive institutions voraciously seeking to expand their powers. But in modern political practice, the flight from political responsibility–the problem of political abdication–is at least as serious a threat. Constitutional theory has paid too little attention to this problem. And as a matter of institutional design, we are still struggling to find tools to force political actors to take responsibility they would rather avoid. Abdication, not aggrandizement, is the common thread that unites Congress’s virtual absence from any major policymaking role on terrorism-related issues in the first five years after September 11th and the Voting Rights Act (VRA) reauthorization process that Professor Persily chronicles.

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  • Uncorking a Seventy-Four-Year-Old Bottle: A Toast to the Free Flow of Liquor Across State Borders
    Ethan Davis, Sunday, 25 November 2007

    http://flickr.com/photos/keltanen/478420989/ Prohibition’s repeal in 1933 ended an era of lawlessness, gang wars, and heavy-handed federal regulation. The state regulatory systems that arose from Prohibition’s ashes, however, brought problems of their own. Most states adopted distribution systems designed in part to shield in-state producers, wholesalers, and retailers from out-of-state competition. In this piece, I examine one such widely enacted protectionist state law: the personal import limit. I argue that these limits, which survive essentially unchanged to this day, are inconsistent with the premises of an integrated national market and frustrate the purposes of the Twenty-First Amendment.

    Suppose you are a Connecticut resident living in Hartford, and you wish to throw a New Year’s Eve party. Imagine also that a liquor store in Springfield, right across the Massachusetts border, is hosting a sale of champagne. No store in the Hartford vicinity has cut prices. Though you would naturally take advantage of the lower prices in Massachusetts, section 12-436 of the General Statutes of Connecticut stands firmly in your way: unless you wish to risk a fine of “not more than one thousand dollars” or imprisonment of “not more than one year” (or both), you may not import more than five gallons of alcohol from out-of-state. However, you may purchase and transport within Connecticut unlimited quantities of champagne from a Connecticut retailer. This is so because Connecticut employs a “three-tier distribution system,” meaning that Connecticut alcohol producers may sell only to Connecticut wholesalers, who may sell only to Connecticut retailers, who may then sell only to consumers. The system allows the state to regulate every drop of alcohol that enters its borders. Because a Massachusetts retailer does not participate in Connecticut’s three-tier system, the state of Connecticut bars the Massachusetts retailer from full access to Connecticut’s liquor market.

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  • Laugh Track II – Still Laughin’!
    Jay D. Wexler, Sunday, 11 November 2007

    http://flickr.com/photos/gratzer/1414922403/ Nearly two years have passed since the New York Times reported on Laugh Track, the first-ever scientific study of how funny the various Supreme Court Justices are during oral argument. For that study, published in The Green Bag, I calculated the number of times during the 2004-05 Term that each Justice said something that caused enough chuckling in the courtroom to inspire the Court Reporter to insert the notation “(Laughter)” into the transcript. Although the study was profoundly flawed in almost every respect, it clearly showed that Justice Scalia got the most laughs from the bench, followed not so closely by Justice Breyer. The least-funny Justices during the Term were Justices O’Connor, Ginsburg, and Thomas, who received seven, four, and zero laughs respectively.

    A lot has happened at the Court since the study was published. Chief Justice Rehnquist passed away. Justice O’Connor retired. John Roberts became the new Chief, and Samuel Alito was confirmed as the newest Associate Justice. The Justices also accepted seven-percent fewer cases to review, presumably to spend more time working on their jokes. Has it worked? Well, the oral argument laughter data for the most recent Term are now in, and it appears that not so much has changed at the nation’s highest Court.

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  • The Capabilities Approach and Ethical Cosmopolitanism: A Response to Noah Feldman
    Martha C. Nussbaum, Monday, 29 October 2007

    In a world filled with unjust inequalities, it is fitting that theorists should be turning their attention to the ethical ideal known as “cosmopolitanism,” a view that holds that our loyalties and our ethical duties ought to transcend the local and even the national, focusing on the needs of human beings everywhere. In a world in which reasonable people differ about religious and secular values, however, this new theoretical attention will prove productive for the practical political debate only if we insist on the distinction between cosmopolitanism, the comprehensive ethical doctrine, and a set of basic political principles for a minimally just and decent world.

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  • Promises of Nonstate Representatives
    Ezra Rosser, Wednesday, 17 October 2007

    Cherokee at Windsor Castle in London to meet King George II of Great Britain. Opponents of congressional representation for Puerto Rico emphasize the Constitution’s apparent statehood requirement: “The House of Representatives shall be composed of Members chosen . . . by the People of the several States.” Even José R. Coleman Tió, a supporter of nonstate representatives, acknowledges the “daunting legal hurdle” that the statehood requirement poses. In his comment, Coleman proposes various legal theories for surmounting this “obstacle[].” In response, Christina Duffy Burnett argues that none of Coleman’s arguments exempt Puerto Rico from the statehood requirement. Similarly, John C. Fortier uses his title to say it all: The Constitution is Clear: Only States Vote in Congress. Both Coleman and his responders frame the issue of Puerto Rican representation in a way that prioritizes statehood above all else. This focus entirely ignores, however, the United States’ history of supporting nonstate delegates for Indian tribes. The history of treaty-guaranteed congressional delegates for Indian tribes raises doubts about the power and determinative reach of the statehood requirement. U.S. negotiated treaties, particularly with the Cherokee Nation, reveal statehood to be more of a starting assumption than a determinative prerequisite for congressional representation.

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