Law Commons^™

Considerations Of History And Purpose In Constitutional Borrowing, Robert L. Tsai

Faculty Scholarship

This essay is part of a symposium issue dedicated to "Constitutional Rights: Intersections, Synergies, and Conflicts" at William and Mary School of Law. I make four points. First, perfect harmony among rights might not always be normatively desirable. In fact, in some instances, such as when First Amendment and Second Amendment rights clash, we might wish to have expressive rights consistently trump gun rights. Second, we can't resolve clashes between rights in the abstract but instead must consult history in a broadly relevant rather than a narrowly "originalist" fashion. When we do so, we learn that armed expression and white …

The Constitutionalization Of Indian Private Law, Shyamkrishna Balganesh

Faculty Scholarship

This chapter examines the relationship between private law and constitutional law in India, with particular emphasis on tort law. It considers the Indian Supreme Court’s expansion of its fundamental rights jurisprudence over the past thirty years, as well as its effort to transcend the public law/private law divide. It also explains how the Court’s fusion of constitutional law and tort law has affected the independent efficacy, normativity, and analytical basis of equivalent private law claims in India. It argues that the Court’s efforts have only undermined the overall legitimacy of private law mechanisms in the country, and that this phenomenon …

Intellectual Property, Asian Philosophy And The Yin-Yang School, Peter K. Yu

Faculty Scholarship

As an introduction to a special issue on intellectual property philosophy, this article focuses on insights from Asian thought. Such a focus is needed not only to provide balance within this special issue, which includes articles focusing primarily on Western philosophy, but also to highlight the compatibility between Asian philosophy and the notion of intellectual property rights. More importantly, this article aims to demonstrate that Asian philosophy may suggest new ways to address the ongoing and highly complex intellectual property challenges confronting emerging economies and the digital environment.

This article begins by providing a brief discussion of the many different …

Upending A Global Debate: An Empirical Analysis Of The U.S. Supreme Court’S Use Of Transnational Law To Interpret Domestic Doctrine,, Ryan C. Black, Ryan J. Owens, Daniel E. Walters, Jennifer L. Brookhart

Faculty Scholarship

Over the last ten years, judges, scholars, and policymakers have argued — quite vehemently at times — about whether U.S. courts should use transnational sources of law to interpret domestic legal doctrine. All eyes in this debate focus on the U.S. Supreme Court and its use, misuse, and alleged use of transnational law. And almost all the debates are normative. Some scholars and judges argue the Court is correct to use transnational law. Others believe to do so is constitutional apostacy. Still, the controversy seems to have generated more heat than light. Among the clamor can be found little empirical …

Pure Comparative Law And Legal Science In A Mixed Legal System, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.

American Influence On Israel's Jurisprudence Of Free Speech, Pnina Lahav

Faculty Scholarship

This is a study of the role played by judicial development of the First Amendment to the United States Constitution in shaping the jurisprudence of free speech in Israel - a country without a bill of rights. Rivalry and contrast between opposing modes of legal thought, judicial styles, doctrines, and finally, models of democracy within Israel's Supreme Court are major themes. Most of the adversarial elements reflect competing ideas in the intellectual history of American free speech law. Thus, the tension within Israel's Supreme Court reflects the tension between American free speech jurisprudence as it now is and as it …

Book Review, Michael E. Tigar

Faculty Scholarship

No abstract provided.