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Articles 1 - 4 of 4
Full-Text Articles in Jurisprudence
Keeping Our Distinctions Straight: A Response To “Originalism: Standard And Procedure”, Mitchell N. Berman
Keeping Our Distinctions Straight: A Response To “Originalism: Standard And Procedure”, Mitchell N. Berman
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For half a century, moral philosophers have distinguished between a “standard” that makes acts right and a “decision procedure” by which agents can determine whether any given contemplated act is right, which is to say whether it satisfies the standard. In “Originalism: Standard and Procedure,” Stephen Sachs argues that the same distinction applies to the constitutional domain and that clear grasp of the difference strengthens the case for originalism because theorists who emphasize the infirmities of originalism as a decision procedure frequently but mistakenly infer that those flaws also cast doubt on originalism as a standard. This invited response agrees …
How Practices Make Principles, And How Principles Make Rules, Mitchell N. Berman
How Practices Make Principles, And How Principles Make Rules, Mitchell N. Berman
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The most fundamental question in general jurisprudence concerns what makes it the case that the law has the content that it does. This article offers a novel answer. According to the theory it christens “principled positivism,” legal practices ground legal principles, and legal principles determine legal rules. This two-level account of the determination of legal content differs from Hart’s celebrated theory in two essential respects: in relaxing Hart’s requirement that fundamental legal notions depend for their existence on judicial consensus; and in assigning weighted contributory legal norms—“principles”—an essential role in the determination of legal rights, duties, powers, and permissions. Drawing …
Navigating The Identity Thicket: Trademark's Lost Theory Of Personality, The Right Of Publicity, And Preemption, Jennifer E. Rothman
Navigating The Identity Thicket: Trademark's Lost Theory Of Personality, The Right Of Publicity, And Preemption, Jennifer E. Rothman
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Both trademark and unfair competition laws and state right of publicity laws protect against unauthorized uses of a person’s identity. Increasingly, however, these rights are working at odds with one another, and can point in different directions with regard to who controls a person’s name, likeness, and broader indicia of identity. This creates what I call an "identity thicket" of overlapping and conflicting rights over a person’s identity. Current jurisprudence provides little to no guidance on the most basic questions surrounding this thicket, such as what right to use a person’s identity, if any, flows from the transfer of marks …
But What Is Personalized Law?, Sandra G. Mayson
But What Is Personalized Law?, Sandra G. Mayson
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In Personalized Law: Different Rules for Different People, Omri Ben-Shahar and Ariel Porat undertake to ground a burgeoning field of legal thought. The book imagines and thoughtfully assesses an array of personalized legal rules, including individualized speed limits, fines calibrated to income, and medical disclosure requirements responsive to individual health profiles. Throughout, though, the conceptual parameters of “personalized law” remain elusive. It is clear that personalized law involves more data, more machine-learning, and more direct communication to individuals. But it is not clear how deep these changes go. Are they incremental—just today’s law with better tech—or do they represent …