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Full-Text Articles in Law

The Educational Autonomy Of Perfectionist Religious Groups In A Liberal State, Mark D. Rosen Dec 2012

The Educational Autonomy Of Perfectionist Religious Groups In A Liberal State, Mark D. Rosen

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This Article draws upon, but reworks, John Rawls’ framework from Political Liberalism to determine the degree of educational autonomy that illiberal perfectionist religious groups ought to enjoy in a liberal state. I start by arguing that Rawls mistakenly concludes that political liberalism flatly cannot accommodate Perfectionists, and that his misstep is attributable to two errors: (1) Rawls utilizes an overly restrictive “political conception of the person” in determining who participates in the original position, and (2) Rawls overlooks the possibility of a “federalist” basic political structure that can afford significant political autonomy to different groups within a single country. With …


Natural Law, Slavery, And The Right To Privacy Tort, Anita L. Allen Dec 2012

Natural Law, Slavery, And The Right To Privacy Tort, Anita L. Allen

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In 1905 the Supreme Court of Georgia became the first state high court to recognize a freestanding “right to privacy” tort in the common law. The landmark case was Pavesich v. New England Life Insurance Co. Must it be a cause for deep jurisprudential concern that the common law right to privacy in wide currency today originated in Pavesich’s explicit judicial interpretation of the requirements of natural law? Must it be an additional worry that the court which originated the common law privacy right asserted that a free white man whose photograph is published without his consent in …


The Inalienable Right Of Publicity, Jennifer E. Rothman Nov 2012

The Inalienable Right Of Publicity, Jennifer E. Rothman

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This article challenges the conventional wisdom that the right of publicity is universally and uncontroversially alienable. Courts and scholars have routinely described the right as a freely transferable property right, akin to patents or copyrights. Despite such broad claims of unfettered alienability, courts have limited the transferability of publicity rights in a variety of instances. No one has developed a robust account of why such limits should exist or what their contours should be. This article remedies this omission and concludes that the right of publicity must have significantly limited alienability to protect the rights of individuals to control the …


The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh Nov 2012

The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh

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Not all copying constitutes copyright infringement. Quite independent of fair use, copyright law requires that an act of copying be qualitatively and quantitatively significant enough or “substantially similar” for it to be actionable. Originating in the nineteenth century, and entirely the creation of courts, copyright’s requirement of “substantial similarity” has thus far received little attention as an independently meaningful normative dimension of the copyright entitlement. This Article offers a novel theory for copyright’s substantial-similarity requirement by placing it firmly at the center of the institution and its various goals and purposes. As a common-law-style device that mirrors the functioning of …


Expanding Stare Decisis: The Role Of Precedent In The Unfolding Dialectic Of Brady V. Maryland, Colin Starger Oct 2012

Expanding Stare Decisis: The Role Of Precedent In The Unfolding Dialectic Of Brady V. Maryland, Colin Starger

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Does stare decisis constrain the expansion of constitutional doctrine? Does existing precedent preclude the Supreme Court from expanding a criminal defendant’s right to exculpatory evidence? While commentators frequently clash on when stare decisis should prevent the Court from overruling its own precedents, the question of when fidelity to precedent should inhibit doctrinal expansion is surprisingly under-theorized. This Article begins to fill this gap through an in-depth case study of stare decisis and the expansion of criminal due process doctrine.

This Article analyzes the longstanding constitutional dialectic between procedural and substantive schools of criminal due process. Focus is on Brady v. …


Exile On Main Street: Competing Traditions And Due Process Dissent, Colin Starger Jul 2012

Exile On Main Street: Competing Traditions And Due Process Dissent, Colin Starger

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Everybody loves great dissents. Professors teach them, students learn from them, and journalists quote them. Yet legal scholars have long puzzled over how dissents actually impact the development of doctrine. Recent work by notable empirical scholars proposes to measure the influence of dissents by reference to their subsequent citation in case law. This Article challenges the theoretical basis for this empirical approach and argues that it fails to account for the profound influence that uncited dissents have exerted in law. To overcome this gap in the empirical approach, this Article proposes an alternative method that permits analysis of contextual and …


Parallel Contract, Aditi Bagchi Feb 2012

Parallel Contract, Aditi Bagchi

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This Article describes a new model of contract. In parallel contract, one party enters into a series of contracts with many similarly situated individuals on background terms that are presumptively identical. Parallel contracts depart from the classical model of contract in two fundamental ways. First, obligations are not robustly dyadic in that they are neither tailored to the two parties to a given agreement nor understood by those parties by way of communications with each other. Second, obligations are not fixed at a discrete moment of contract. Parallel contracts should be interpreted differently than agreements more consistent with the classic …


The Obligatory Structure Of Copyright Law: Unbundling The Wrong Of Copying, Shyamkrishna Balganesh Jan 2012

The Obligatory Structure Of Copyright Law: Unbundling The Wrong Of Copying, Shyamkrishna Balganesh

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No abstract provided.


What Must We Hide: The Ethics Of Privacy And The Ethos Of Disclosure, Anita L. Allen Jan 2012

What Must We Hide: The Ethics Of Privacy And The Ethos Of Disclosure, Anita L. Allen

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No abstract provided.


Alexander's Genius, Mitchell N. Berman Jan 2012

Alexander's Genius, Mitchell N. Berman

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Larry Alexander is one of the most creative, penetrating, and wide-ranging legal theorists working today. This short essay, prepared as a tribute for a special issue of the APA Newsletter on Philosophy and Law, aims to convey a flavor of his work by introducing, and causing some trouble for, just a few of his more heterodox and provocative positions. The principal critical target of the essay is Alexander’s contention (a contention that he has pressed both alone and with Saikrishna Prakash) that extreme partisan gerrymandering does not violate the U.S. Constitution. The most persuasive grounding for the unconstitutionality of (extreme) …


Introduction: Punishment And Culpability, Mitchell N. Berman Jan 2012

Introduction: Punishment And Culpability, Mitchell N. Berman

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No abstract provided.


Notice-And-Comment Sentencing, Stephanos Bibas, Richard A. Bierschbach Jan 2012

Notice-And-Comment Sentencing, Stephanos Bibas, Richard A. Bierschbach

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No abstract provided.