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Articles 1 - 3 of 3
Full-Text Articles in Jurisprudence
Comparative Tales Of Origins And Access: Intellectual Property And The Rhetoric Of Social Change, Jessica Silbey
Comparative Tales Of Origins And Access: Intellectual Property And The Rhetoric Of Social Change, Jessica Silbey
Faculty Scholarship
This Article argues that the open-source and anti-expansionist rhetoric of current intellectual-property debates is a revolution of surface rhetoric but not of deep structure. What this Article terms “the Access Movements” are, by now, well-known communities devoted to providing more access to intellectual-property-protected goods, communities such as the Open Source Initiative and Access to Knowledge. This Article engages Movement actors in their critique of the balance struck by recent law (statutes and cases) and asks whether new laws that further restrict access to intellectual property “promote the progress of science and the useful arts.” Relying on cases, statutes and recent …
Review Of Law At The Vanishing Point By Aaron Fichtelberg, Robert D. Sloane
Review Of Law At The Vanishing Point By Aaron Fichtelberg, Robert D. Sloane
Faculty Scholarship
This is a largely critical review of Professor Aaron Fichtelberg’s philosophical analysis of international law. The centerpiece of the book’s affirmative agenda, a “non-reductionist” definition of international law that purports to elide various forms of international law skepticism, strikes the reviewer as circular, misguided in general, and, in its application to substantive international legal issues, difficult to distinguish from a rote form of legal positivism. Law at the Vanishing Point’s avowed empirical methodology and critical agenda, while largely unobjectionable, offer little that has not been said before, often with equal if not greater force. I commend the author’s effort to …
Constitutional Borrowing, Robert L. Tsai, Nelson Tebbe
Constitutional Borrowing, Robert L. Tsai, Nelson Tebbe
Faculty Scholarship
Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. Our examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law associated …