Law Commons^™

Hobby Lobby: Its Flawed Interpretive Techniques And Standards Of Application, Kent Greenawalt

Faculty Scholarship

At the end of June 2014, the Supreme Court decided one of the most publicized controversies of decades. In a decision covering two cases, widely referred to as Hobby Lobby, the Court held that closely held for-profit corporations, based on their owners' religious convictions, have a right under the Religious Freedom Restoration Act (RFRA) to decline to provide employees with insurance that covers contraceptive devices that may prevent a fertilized egg "from developing any further by inhibiting its attachment to the uterus."

The result has been widely approved by those who favor an extensive scope for religious liberty and …

Coordination Reconsidered, Richard Briffault

Faculty Scholarship

At the heart of American campaign finance law is the distinction drawn by the Supreme Court in Buckley v. Valeo between contributions and expenditures. According to the Court, contributions may be limited because they pose the dangers of corruption and the appearance of corruption, but expenditures pose no such dangers and therefore may not be limited. The distinction between the two types of campaign spending turns not on the form – the fact that contributions proceed from a donor to a candidate, while expenditures involve direct efforts to influence the voters – but on whether the campaign practice implicates the …

Some Pluralism About Pluralism: A Comment On Hanoch Dagan's "Pluralism And Perfectionism In Private Law", Jedediah S. Purdy

Faculty Scholarship

Hanoch Dagan is among “those who think it advantageous to get as much ethics into the law as they can,” in the phrase of Oliver Wendell Holmes, Jr. His pluralism is a perfectionism for polytheists: There are many human goods, and each has its domain, including some portion of the law of property. Depending on where we stand on the property landscape at any time, we may be community-minded sharers, devoted romantics in marriage, or coolly rational market actors, and the local property law will smooth each of these paths for us. Property law is built on the design of …

The Uncertain Future Of "Hot News" Misappropriation After Barclays Capital V. Theflyonthewall.Com, Shyamkrishna Balganesh

Faculty Scholarship

In this Essay, I attempt to disaggregate the Second Circuit’s decision in Barclays Capital to show that while the court may have reached the right conclusion in the end (a position I have argued for previously), its reasoning to reach that conclusion is rather confusing, while at the same time a rich source of information about the future of hot news doctrine. At every stage of its analysis, the Second Circuit went to significant lengths to cabin the reach of the doctrine quite considerably, despite reiterating that it was not abrogating it altogether. In analyzing the opinion, I thus consider …

Impartial Patents, Clarisa Long

Faculty Scholarship

Over the past decade or more, a rising sense of dissatisfaction with patent law has begun to creep across the patent community. A number of factors no doubt have contributed to this sense of dissatisfaction, among them the perception that patents are too often being enforced by “trolls” (if you don’t like them) or “nonpracticing entities” (if you want to remain neutral). Professor Parchomovsky and Mr. Mattioli propose a solution in which they create two new forms of patent protection that they call “quasi-patents” and “semi-patents” – or generically, “partial patents.” Partial patents are designed to be cheaper to obtain …

What Happened In Iowa?, David Pozen

Faculty Scholarship

Reply to Nicole Mansker & Neal Devins, Do Judicial Elections Facilitate Popular Constitutionalism; Can They?, 111 Colum. L. Rev. Sidebar 27 (2011).

November 2, 2010 is the latest milestone in the evolution of state judicial elections from sleepy, sterile affairs into meaningful political contests. Following an aggressive ouster campaign, voters in Iowa removed three supreme court justices, including the chief justice, who had joined an opinion finding a right to same-sex marriage under the state constitution. Supporters of the campaign rallied around the mantra, “It’s we the people, not we the courts.” Voter turnout surged to unprecedented levels; the national …

Personal Sovereignty And Normative Power Skepticism, Jody S. Kraus

Faculty Scholarship

In "The Correspondence of Contract and Promise," I claim that contract scholars have mistakenly presumed that they can assess the correspondence between contract and promise without first providing a theory of self-imposed moral responsibility that explains and justifies the promise principle. To illustrate the dependence of correspondence accounts of contract law on a theory of self-imposed moral responsibility, I demonstrate how a "personal sovereignty" account of individual autonomy explains how and why, contrary to existing correspondence theories, promissory responsibility corresponds to the rights and duties recognized by contract. Personal sovereignty recognizes the fundamental right of individuals not only to choose …