ILR - Bulletin

Professor Greenfield situates Professor Cunningham’s article in the ongoing debate over whether corporate law is best analogized to contract law or property law, arguing that even though Professor Cunningham’s article proposes a contract-law remedy, it is best understood as supporting the corporation-as-property metaphor.
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The Dark Side of Litigation as a Social Movement Strategy

by Catherine Albiston

Responding to NeJaime, Winning Through Losing

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IP Misuse and Innovation Harm

by Thomas F. Cotter

Responding to Bohannan, IP Misuse as Foreclosure

Professor Cotter’s response argues that Professor Bohannan’s misuse proposal goes too far and that courts should not apply the misuse doctrine “to combat harms to competition and innovation in a manner that would depart from standard antitrust law” because doing so could have a stifling effect on future innovation.
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The Timely Demise of the Fourth Amendment Third Party Doctrine

by Stephen E. Henderson

Responding to Tokson, Automation and the Fourth Amendment

Professor Henderson’s response includes a four-factor test courts should apply in determining whether a person retains a reasonable expectation of privacy in information given to a third party.
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Things Are Bad Enough Already

by David McGowan

Responding to Litman, Real Copyright Reform

Professor McGowan’s response argues (1) that there is less wrong with copyright law than Professor Litman argues, (2) that, while some of Professor Litman’s recommendations for copyright reform are valid, we should not preference “mandatory rules over defaults,” (3) and ends with a proposal for more grounded copyright scholarship, while still acknowledging the importance and appeal of scholarship that will be difficult or impossible to implement.
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Copyright Harm and Reform

by Christina Bohannan

Responding to Litman, Real Copyright Reform

Professor Bohannan challenges one of Professor Litman’s cornerstone proposals for reform—that copyrights should be defined as rights against "commercial exploitation."
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National Security and the Shadows of “Common Sense”

by Alexander A. Reinert

Responding to Margulies, Judging Myopia in Hindsight: Bivens Actions, National Security Decisions, and the Rule of Law

Professor Reinert approves of Professor Margulies’s concern with cognitive bias in judicial decisionmaking for national-security cases but argues that future scholarship should analyze different kinds of national-security cases, since the factual basis influences the ways in which issues of cognitive bias will arise. Reinert ends by arguing that “information-forcing mechanisms that focused on the discovery most relevant to the plaintiff’s claims” and, generally, “more flexible approache[s] to the cases implicated by Margulies’ article” would do better “to mitigate the kinds of cognitive biases that Margulies has identified.”
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Volume 95

Procuring “Justice”?: Citizens United, Caperton v. Massey, and Partisan Judicial Elections

by andré douglas pond cummings

Responding to LeRoy, Do Partisan Elections of Judges Produce Unequal Justice When Courts Review Employment Arbitrations?

Professor cummings discusses Professor LeRoy’s research from the context of the Supreme Court’s decisions in Citizens United and Caperton, arguing that—without intervention—we can now see that Citizens United will create situations where money will play an even bigger role in judicial decision-making. View Response View Article

Legal Reasoning in Congress

by Mark Tushnet

Responding to Bruhl, Burying the "Continuing Body" Theory of the Senate

Professor Tushnet identifies with the aspects of Professor Bruhl’s continuing body theory that relate to Popular Constitutionalism; he argues that Professor Bruhl’s example of senatorial interpretation, in the context of Senate rule making, is extendable to other areas of constitutional interpretation with results equal to those from judges. He also discusses the implications of Bruhl’s Article to “the filibuster, [and] on the Senate’s rules more generally.” View Response View Article

Fixing the Filibuster: Restoring Real Democracy in the Senate

by Senator Tom Harkin

Responding to Bruhl, Burying the "Continuing Body" Theory of the Senate

Senator Harkin argues that the Senate must modify Senate rules as they relate to ending filibuster, for the purpose of creating a Senate that operates “more fairly, effectively, and democratically.”
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The Pleading Problem in Antitrust Cases and Beyond

by Herbert Hovenkamp

Responding to Clermont & Yeazell, Inventing Tests, Destabilizing Systems

Professor Hovenkamp agrees with Clermont and Yeazell that Twombly and Iqbal are lamentable additions to the law of pleading, especially in the context of antitrust conspiracies—such as in Twombly—where the nature of the complaint involves the behind-the-scenes evidence to which a pleader will not have access. View Response View Article

Responding to Twombly and Iqbal: Where Do We Go from Here?

by Edward A. Hartnett

Responding to Clermont & Yeazell, Inventing Tests, Destabilizing Systems

Professor Hartnett analyzes Professors Clermont and Yeazell’s concern with how to interpret Twombly and Iqbal pleading requirements in the future, proposing a rule that allows courts to determine whether to grant a motion under Rule 12(b)(6) based on the parties’ argument over whether sufficient evidence exists to support a claim or, in the absence of that, whether discovery is likely to produce evidence sufficient to support a claim. View Response View Article

Common-Law Habeas and the Separation of Powers

by Stephen I. Vladeck

Responding to Azmy, Executive Detention, Boumediene, and the New Common Law of Habeas

Professor Vladeck argues that Professor Azmy’s descriptive Article on the modern common law of habeus corpus fits in to the historical context of the common law of habeus corpus jurisprudence, a common law context that derives from the constitutional nature of the writ. View Response View Article

Unfair Competition and Uncommon Sense

by Rebecca Tushnet

Responding to McKenna, Testing Modern Trademark Law’s Theory of Harm

Professor Tushnet agrees with Professor McKenna’s primary assertion that we must define harm, in pleadings for trademark infringement cases, “based on possible market preclusion instead of actual damage that confusion causes to a brand,” and goes on to contribute and argument for the possible extention of eBay v. MercExchange, LLC to trademark cases. View Response View Article

A Comment on James Grimmelmann’s Saving Facebook

by Susan Freiwald

Responding to Grimmelmann, Saving Facebook

Professor Freiwald describes Professor Grimmelmann’s article and, despite questioning some of the conclusions he draws based on research and arguing that Facebook users have been better advocates of change in Facebook policy than Grimmelmann admits, is a strong advocate of Professor Grimmelmann’s conclusions. View Response View Article

Saving Facebook: A Response to Professor Freiwald

by James Grimmelmann

Responding to Freiwald, A Comment on James Grimmelmann’s Saving Facebook

In Professor Grimmelmann’s response to Professor Freiwald, he answers some of Freiwald’s concerns about the existence and feasibility of “user demands for privacy from Facebook,” and answers Freiwald’s concern with his rejection of “commercial-data rules.” View Response View Bulletin

Introducing the Iowa Law Review Bulletin

by Randall P. Bezanson

Professor Bezanson contextualizes the Law Review’s creation of the Iowa Law Review Bulletin by looking at the history of legal scholarship and tying it to the future of scholarly publication. View Essay

Iowa Law Review Bulletin

Volume 98

by Youngjae Lee

Responding to Mannheimer, Cruel and Unusual Federal Punishments

by Sandeep Vaheesan

by Sarah B. Lawsky

Responding to Borden, Quantitative Model for Measuring Line-Drawing Inequity

by Louis J. Virelli III

Responding to Berger, Deference Determinations and Stealth Constitutional Decision Making

by Roy Kreitner

Responding to Oman, Markets as a Moral Foundation for Contract Law

by Elizabeth Laposata, Richard Barnes & Stanton Glantz

Responding to Ramo & Liebman, The ALI’s Response to the Center for Tobacco Control Research & Education

by Laura Krugman Ray

by Roberta Cooper Ramo and Lance Liebman

Responding to Laposata et al., Tobacco Industry Influence on the American Law Institute’s Restatement of Torts and Implications for Its Conflict of Interest Policies

Volume 97

by Eleanor D. Kinney

Responding to Stein, Toward a Theory of Medical Malpractice

by Mary-Rose Papandrea

Responding to Fenster, Disclosure's Effects: WikiLeaks and Transparency

by Scott R. Peppet

Responding to Kang et al., Self-Surveillance Privacy

by Roy Peled

Responding to Fenster, Disclosure's Effects: WikiLeaks and Transparency

by Christina E. Wells

Responding to Fenster, Disclosure's Effects: WikiLeaks and Transparency

by Corey Rayburn Yung

Responding to Cross, The Ideology of Supreme Court Opinions and Citations

by Andrew Kent

Responding to Vladeck, Insular Thinking About Habeas

by Sandra F. Sperino

Responding to Seiner, Punitive Damages, Due Process, and Employment Discrimination

by Stephen I. Vladeck

Responding to Kent, Boumediene, Munaf, and the Supreme Court’s Misreading of the Insular Cases

by Christopher Slobogin

Responding to Bellin, Crime-Severity Distinctions and the Fourth Amendment: Reassessing Reasonableness in a Changing World

Volume 96

IP Foreclosure and Antitrust Foreclosure

by Steven Semeraro

Responding to Bohannan, IP Misuse as Foreclosure

The Way Forward: Racial Integration After Ricci, a Response to Michelle Adams

by Elise C. Boddie

Responding to Adams, Is Integration a Discriminatory Purpose?

The Fifth Amendment, Cell Phones and Search Incident: A Response to Password Protected?

by Susan W. Brenner

Responding to Gershowitz, Password Protected? Can a Password Save Your Cell Phone from a Search Incident to Arrest?

Unconscionability and Consent in Corporate Law (A Comment on Cunningham)

by Kent Greenfield

Responding to Cunningham, A New Legal Theory To Test Executive Pay: Contractual Unconscionability

The Dark Side of Litigation as a Social Movement Strategy

by Catherine Albiston

Responding to NeJaime, Winning Through Losing

IP Misuse and Innovation Harm

by Thomas F. Cotter

Responding to Bohannan, IP Misuse as Foreclosure

The Timely Demise of the Fourth Amendment Third Party Doctrine

by Stephen E. Henderson

Responding to Tokson, Automation and the Fourth Amendment

Things Are Bad Enough Already

by David McGowan

Responding to Litman, Real Copyright Reform

Copyright Harm and Reform

by Christina Bohannan

Responding to Litman, Real Copyright Reform

National Security and the Shadows of “Common Sense”

by Alexander A. Reinert

Responding to Margulies, Judging Myopia in Hindsight: Bivens Actions, National Security Decisions, and the Rule of Law

Volume 95

Procuring “Justice”?: Citizens United, Caperton v. Massey, and Partisan Judicial Elections

by andré douglas pond cummings

Responding to LeRoy, Do Partisan Elections of Judges Produce Unequal Justice When Courts Review Employment Arbitrations?

Legal Reasoning in Congress

by Mark Tushnet

Responding to Bruhl, Burying the "Continuing Body" Theory of the Senate

Fixing the Filibuster: Restoring Real Democracy in the Senate

by Senator Tom Harkin

Responding to Bruhl, Burying the "Continuing Body" Theory of the Senate

The Pleading Problem in Antitrust Cases and Beyond

by Herbert Hovenkamp

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