Jurisprudence Commons^™

“Spooky Action At A Distance”: Intangible Injury In Fact In The Information Age, Seth F. Kreimer

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Two decades after Justice Douglas coined “injury in fact” as the token of admission to federal court under Article III, Justice Scalia sealed it into the constitutional canon in Lujan v. Defenders of Wildlife. In the two decades since Lujan, Justice Scalia has thrown increasingly pointed barbs at the permissive standing doctrine of the Warren Court, maintaining it is founded on impermissible recognition of “Psychic Injury.” Justice Scalia and his acolytes take the position that Article III requires a tough minded, common sense and practical approach. Injuries in fact must be "tangible" "direct" "concrete" "de facto" realities in time and …

The Scrivener's Error, Ryan David Doerfler

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It is widely accepted that courts may correct legislative drafting mistakes, i.e., so-called “scrivener’s errors,” if and only if such mistakes are “absolutely clear.” The rationale is that, if a court were to recognize a less clear error, it “might be rewriting the statute rather than correcting a technical mistake.”

This Essay argues that the standard is much too strict. The current rationale ignores that courts can “rewrite,” i.e., misinterpret, a statute both by recognizing an error and by failing to do so. In turn, because the current doctrine is designed to protect against one type of mistake (false positives) …

The Questionable Origins Of The Copyright Infringement Analysis, Shyamkrishna Balganesh

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Central to modern copyright law is its test for determining infringement, famously developed by Judge Jerome Frank in the landmark case of Arnstein v. Porter. The “Arnstein test,” which courts continue to apply, demands that the analysis be divided into two components, actual copying — the question whether the defendant did in fact copy, and improper appropriation — the question whether such copying, if it did exist, was unlawful. Somewhat counter-intuitively though, the test treats both components as pure questions of fact, requiring that even the question of improper appropriation go to a jury. This jury-centric approach continues to influence …