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Full-Text Articles in Law

Historical Kinship And Categorical Mischief: The Use And Misuse Of Doctrinal Borrowing In Intellectual Property Law, Mark Bartholomew, John Tehranian Nov 2023

Historical Kinship And Categorical Mischief: The Use And Misuse Of Doctrinal Borrowing In Intellectual Property Law, Mark Bartholomew, John Tehranian

Journal Articles

Analogies are ubiquitous in legal reasoning, and, in copyright jurisprudence, courts frequently turn to patent law for guidance. From introducing doctrines meant to regulate online intermediaries to evaluating the constitutionality of resurrecting copyrights to works from the public domain, judges turn to patent law analogies to lend ballast to their decisions. At other times, however, patent analogies with copyright law are quickly discarded and differences between the two regimes highlighted. Why? In examining the transplantation of doctrinal frameworks from one intellectual property field to another, this Article assesses the circumstances in which courts engage in doctrinal borrowing, discerns their rationale …


Neither Trumps Nor Interests: Rights, Pluralism, And The Recovery Of Constitutional Judgment Of Constitutional Judgment, Paul Linden-Retek Apr 2022

Neither Trumps Nor Interests: Rights, Pluralism, And The Recovery Of Constitutional Judgment Of Constitutional Judgment, Paul Linden-Retek

Journal Articles

This Article develops a novel framework for the adjudication of rights in an age of partisan and societal polarization. In so doing, it defends judicial review in a divided polity on new grounds. The Article makes two broad interventions.

First, the Article cautions against recent calls to shift rights adjudication in the United States from Dworkinian categoricalism toward proportionality analysis. Such calls correctly identify how categoricalism, by embracing the absolute nature of rights as “trumps,” pits citizens harshly against one another. The problem, however, is that proportionality’s proponents fail to see how it imposes a rights absolutism of its own. …


What Counts As Data?, Anya Bernstein Oct 2021

What Counts As Data?, Anya Bernstein

Journal Articles

We live in an age of information. But whether information counts as data depends on the questions we put to it. The same bit of information can constitute important data for some questions, but be irrelevant to others. And even when relevant, the same bit of data can speak to one aspect of our question while having little to say about another. Knowing what counts as data, and what it is data of, makes or breaks a data-driven approach. Yet that need for clarity sometimes gets ignored or assumed away. In this essay, I examine what counts as data in …


Judicial Application Of Strict Liability Local Ordinances, Guyora Binder, Brenner Fissell Aug 2021

Judicial Application Of Strict Liability Local Ordinances, Guyora Binder, Brenner Fissell

Journal Articles

No abstract provided.


Democratizing Interpretation, Anya Bernstein Nov 2018

Democratizing Interpretation, Anya Bernstein

Journal Articles

Judges interpreting statutes sometimes seem eager to outsource the work. They quote ordinary speakers to define a statutory term, point to how an audience understands it, or pin it down with interpretive canons. But sometimes conduct that appears to diminish someone’s power instead sneakily enhances it. So it is, I argue, with these forms of interpretive outsourcing. Each seems to constrain judges’ authority by handing the reins to someone else, giving interpretation a democratized veneer. But in fact each funnels power right back to the judge.

The outsourcing approaches I describe show a disconnect between the questions judges pose and …


Active Judicial Governance, James A. Gardner Sep 2018

Active Judicial Governance, James A. Gardner

Journal Articles

Evidence marshaled in a new article by Jonathan Marshfield suggests strongly that unlike judges of U.S. federal courts, judges of American state supreme courts both recognize and embrace their role as active participants in the process of indirect popular self-rule. Consequently, they much more willingly serve as active and self-conscious vectors of governance. This is not to say that state judges lack appropriate judicial humility; it is to say merely that they possess a different and more nuanced understanding of the role of courts in American government than some of their federal counterparts.


Introduction: The Effects Of Selection Method On Public Officials, Clayton J. Masterman Nov 2017

Introduction: The Effects Of Selection Method On Public Officials, Clayton J. Masterman

Journal Articles

No abstract provided.


Before Interpretation, Anya Bernstein Apr 2017

Before Interpretation, Anya Bernstein

Journal Articles

What a statutory interpretation opinion interprets may seem given. It is not: this article shows how judges select what text to interpret. That text may seem to carry with it one of a limited range of contexts. It does not: this article shows how judges draw on a variety of factors to situate the texts they interpret in unique, case-specific contexts. Selecting and situating form the infrastructure of interpretation. Their creativity and choice provide the basis on which assertions of determinate meaning are made. That process reveals how contestation and indeterminacy permeate legal interpretation even as judicial opinions seek to …


On The Place Of Judge-Made Law In A Government Of Laws, Matthew J. Steilen Nov 2016

On The Place Of Judge-Made Law In A Government Of Laws, Matthew J. Steilen

Journal Articles

This essay explores a constitutional account of the elevation of the judiciary in American states following the Revolution. The core of the account is a connection between two fundamental concepts in Anglo-American constitutional thinking, discretion and a government of laws. In the periods examined here, arbitrary discretion tended to be associated with alien power and heteronomy, while bounded discretion was associated with self-rule. The formal, solemn, forensic, and public character of proceedings in courts of law suggested to some that judge-made law (a product of judicial discretion under these proceedings) did not express simply the will of the judge or …


Differentiating Deference, Anya Bernstein Jan 2016

Differentiating Deference, Anya Bernstein

Journal Articles

When an administrative agency’s interpretation of an ambiguous statutory term is challenged in court, the Chevron doctrine instructs judges to evaluate whether it is reasonable. But how does a court know reasonableness when it sees it? Here, I first show that reasonableness review is more complex than it might seem. Contrary to common images, for instance, courts do not determine a range of reasonable interpretations; and that is a good thing, because they are not competent to do so. Moreover, because traditional statutory interpretation approaches presume the existence of one correct meaning for a given word, they are not well …


Judicial Review And Non-Enforcement At The Founding, Matthew J. Steilen Nov 2014

Judicial Review And Non-Enforcement At The Founding, Matthew J. Steilen

Journal Articles

This Article examines the relationship between judicial review and presidential non-enforcement of statutory law. Defenders of non-enforcement regularly argue that the justification for judicial review that prevailed at the time of the founding also justifies the president in declining to enforce unconstitutional laws. The argument is unsound. This Article shows that there is essentially no historical evidence, from ratification through the first decade under the Constitution, in support of a non-enforcement power. It also shows that the framers repeatedly made statements inconsistent with the supposition that the president could refuse to enforce laws he deemed unconstitutional. In contrast, during this …


Disparity In Judicial Misconduct Cases: Color-Blind Diversity?, Athena D. Mutua Jan 2014

Disparity In Judicial Misconduct Cases: Color-Blind Diversity?, Athena D. Mutua

Journal Articles

This article presents and analyzes preliminary data on racial and gender disparities in state judicial disciplinary actions. Studies of demographic disparities in the context of judicial discipline do not exist. This paper presents a first past and preliminary look at the data collected on the issue and assembled into a database. The article is also motivated by the resistance encountered to inquiries into the demographic profile of the state bench and its judges. As such, it also tells the story of the journey undertaken to secure this information and critiques what the author terms a practice of colorblind diversity. Initially …


New York’S Inbred Judiciary: Pathologies Of Nomination And Appointment Of Court Of Appeals Judges, James A. Gardner Jan 2010

New York’S Inbred Judiciary: Pathologies Of Nomination And Appointment Of Court Of Appeals Judges, James A. Gardner

Journal Articles

The practice of selecting judges by popular election, commonplace among the American states, has recently come in for a good deal of criticism, much of it well-founded. But if popular election of judges is a bad method of judicial selection, what ought to replace it? Opponents of judicial election typically treat gubernatorial appointment as self-evidently better. New York’s experience with gubernatorial appointment to its highest court, the Court of Appeals, suggests that greater caution is in order. Although New York’s current method of selecting Court of Appeals judges was designed to be wide open and based entirely on merit, the …


Minimalism And Deliberative Democracy: A Closer Look At The Virtues Of "Shallowness", Matthew J. Steilen Jan 2010

Minimalism And Deliberative Democracy: A Closer Look At The Virtues Of "Shallowness", Matthew J. Steilen

Journal Articles

Cass Sunstein has long argued that judicial minimalism promotes democracy. According to Sunstein’s view, a court can encourage the political branches of government to address an issue by using doctrines such as vagueness, nondelegation, and desuetude. Although much has been written about minimalism, very little has been said about the democracy-promotion thesis in particular. Yet it is one of the central claims of contemporary minimalism. This article attempts to remedy the deficiency. It argues that minimalism does not promote democracy because minimalist decisions lack the depth necessary to trigger democratic deliberation. The argument occurs in three steps. First, the article …


Justice Under Siege: The Rule Of Law And Judicial Subservience In Kenya, Makau Wa Mutua Feb 2001

Justice Under Siege: The Rule Of Law And Judicial Subservience In Kenya, Makau Wa Mutua

Journal Articles

The piece examines the tortured history of the judiciary in Kenya and concludes that various governments have deliberately robbed judges of judicial independence. As such, the judiciary has become part and parcel of the culture of impunity and corruption. This was particularly under the one party state, although nothing really changed with the introduction of a more open political system. The article argues that judicial subservience is one of the major reasons that state despotism continues to go unchallenged. It concludes by underlining the critical role that the judiciary has to play in a democratic polity.


Freedom And Interdependence In Twentieth-Century Contract Law: Traynor And Hand And Promissory Estoppel, Alfred S. Konefsky Jan 1997

Freedom And Interdependence In Twentieth-Century Contract Law: Traynor And Hand And Promissory Estoppel, Alfred S. Konefsky

Journal Articles

No abstract provided.


The Ambiguity Of Legal Dreams: A Communitarian Defense Of Judicial Restraint, James A. Gardner Mar 1993

The Ambiguity Of Legal Dreams: A Communitarian Defense Of Judicial Restraint, James A. Gardner

Journal Articles

No abstract provided.


The Constitutional Catechism Of Antonin Scalia, George Kannar Apr 1990

The Constitutional Catechism Of Antonin Scalia, George Kannar

Journal Articles

No abstract provided.