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Full-Text Articles in Law
General Law In Federal Court, Bradford R. Clark, Anthony J. Bellia
General Law In Federal Court, Bradford R. Clark, Anthony J. Bellia
Anthony J. Bellia
Conventional wisdom maintains that the Supreme Court banished general law from federal courts in 1938 in Erie Railroad Co. v. Tompkins when the Court overruled Swift v. Tyson. The narrative asserts that Swift viewed the common law as a “brooding omnipresence,” and authorized federal courts to disregard state common law in favor of general common law of their own choosing. The narrative continues that Erie constrained such judicial lawmaking by banishing general law from federal courts. Contrary to this account, Swift and Erie represent compatible conceptions of federal judicial power when each decision is understood in historical context. At the …
Trademark Law's Faux Federalism, Mark Mckenna
Trademark Law's Faux Federalism, Mark Mckenna
Mark P. McKenna
Federal and state trademark laws regulate concurrently: The Lanham Act does not preempt state law, and in fact many states have statutorily and/or judicially developed trademark or unfair competition laws of their own. This state of affairs, which is now well-accepted even if it has not always been uncontroversial, distinguishes trademark law from patent and copyright law, since federal patent and copyright statutes preempt state law much more broadly. The Patent Act entirely preempts state law with respect to non-secret inventions and the 1976 Copyright Act preempts state copyright law with respect to all works fixed in a tangible medium …
Sosa, Federal Question Jurisdiction, And Historical Fidelity, Anthony J. Bellia
Sosa, Federal Question Jurisdiction, And Historical Fidelity, Anthony J. Bellia
Anthony J. Bellia
In his paper "International Human Rights in American Courts," Judge Fletcher concludes that Sosa v. Alvarez-Machain “has left us with more questions than answers.” Sosa attempted to adapt certain principles belonging to the "general law" to a post-Erie positivistic conception of common law while maintaining fidelity to certain historical expectations. “[I]t would be unreasonable,” the Court thought, “to assume that the First Congress would have expected federal courts to lose all capacity to recognize enforceable international norms simply because the common law might lose some metaphysical cachet on the road to modern realism.” The Court was unwilling, however, out …
Principles Of Law, Marios Papaloukas
Principles Of Law, Marios Papaloukas
Marios Papaloukas
This book by Assist. Professor Marios Papaloukas is an introduction to law. It does not however merely present the different legal areas but instead it starts by describing the origins of law from a historical point of view and ends by discovering the legal principles and legal doctrines that lie behind the legal provisions.