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The Pragmatic Incrementalism Of Common Law Intellectual Property, Shyamkrishna Balganesh Nov 2010

The Pragmatic Incrementalism Of Common Law Intellectual Property, Shyamkrishna Balganesh

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‘Common law intellectual property’ refers to a set of judge-made legal regimes that create exclusionary entitlements in different kinds of intangibles. Principally the creation of courts, many of these regimes are older than their statutory counterparts and continue to co-exist with them. Surprisingly though, intellectual property scholarship has paid scant attention to the nuanced law-making mechanisms and techniques that these regimes employ to navigate through several of intellectual property law’s substantive and structural problems. Common law intellectual property regimes employ a process of rule development that this Article calls ‘pragmatic incrementalism’. It involves the use of pragmatic and minimalist techniques …


The Need For Prosecutorial Discretion, Stephanos Bibas Jan 2010

The Need For Prosecutorial Discretion, Stephanos Bibas

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No abstract provided.


Assuming The Risk: Tort Law, Policy, And Politics On The Slippery Slopes, Eric Feldman, Alison I. Stein Jan 2010

Assuming The Risk: Tort Law, Policy, And Politics On The Slippery Slopes, Eric Feldman, Alison I. Stein

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Prominent jurists and legal scholars have long been critical of the doctrine of the assumption of risk, arguing that it is logically flawed and has sown confusion in the courts. This article takes a fresh look at the assumption of risk by focusing on legal conflicts over ski accidents in three ski-intensive states—Vermont, Colorado, and California. It argues that the tort doctrine of the assumption of risk remains vital, and highlights the way in which powerful political and economic actors with links to the ski industry have lobbied aggressively for state laws that codify the assumption of risk. The result …