Academic Round-Up

I apologize for the brief hiatus in the academic round-up, but even SSRN goes on vacation occasionally, which has been the case over the past couple of weeks. Among the papers that have been posted in recent weeks, a few are notable:

Jonathan Mitchell, a visiting professor at the University of Chicago Law School, has posted “Apprendi’s Domain” on SSRN, see here. Among other things, Professor Mitchell argues that in its Sixth Amendment jurisprudence, the Supreme Court has improperly tied the presentation of all facts that increase a sentence beyond a statutory maximum to proof beyond a reasonable doubt. Instead, he argues that such facts, whether mitigating or aggravating, should be presented to a jury, but that prosecutors should not be required to prove them beyond a reasonable doubt. With the Court’s interest in Sixth Amendment issues seemingly not waning (e.g., Gall, Rita), Professor Mitchell advocates a provocative new approach to the Sixth Amendment.

Julian Ku (Hofstra University School of Law) has posted “Sanchez Llamas v. Oregon: Stepping Back from the New World Order” on SSRN, see here. In the paper, Professor Ku examines the Sanchez-Llamas decision, and defends and elaborates on the reasons given by the Court for the refusal to give effect to judgments of international tribunals absent clear Congressional authorization.

Mark McKenna (St. Louis University School of Law) has posted “The Rehnquist Court and the Groundwork of Greater First Amendment Scrutiny of Intellectual Property” on SSRN, see here. Professor McKenna addresses the Rehnquist Court’s view of the First Amendment in intellectual property cases, and argues that, though the Rehnquist Court did not often find conflict between the First Amendment and intellectual property laws, there is reason to believe that it set the stage for the potential success of such claims in the future.