Law Commons^™

Persons And The Point Of The Law, Richard Garnett

Journal Articles

This short essay is a comment and reflection on a manuscript by Professors John Breen and Lee
Strang, "A Light Unseen: A History of Catholic Legal Education in the United States." It is based on remarks presented at a February 14, 2020 conference, sponsored by the Journal of Catholic Legal Studies and the Center for Law and Religion at St. John's University School of Law. It
addresses, among other things, Breen and Strang's argument that a Catholic law school should have a distinctive "intellectual architecture" and proposes that a distinctive moral anthropology -- that is, an account of what the …

Trademark Use Rides Again, Mark P. Mckenna

Journal Articles

Back in 2007, the Iowa Law Review published a dialogue between Graeme Dinwoodie and Mark Janis, on the one hand, and Stacey Dogan and Mark Lemley on the other. The topic was "trademark use," and the question was whether such a doctrine really exists. Dinwoodie and Janis said no-that while only commercial use of a trademark can be considered infringing, there is no threshold requirement that the plaintiff prove that the defendant has used the mark in some particular "trademark" way. Dogan and Lemley said yes—that some "uses" of a mark simply don't trigger liability, and a court needs to …

The Constitutionalization Of Fatherhood, Dara Purvis

Journal Articles

Beginning in the 1970s, the Supreme Court heard a series of challenges to family law statutes brought by unwed biological fathers, questioning the constitutionality of laws that treated unwed fathers differently than unwed mothers. The Court’s opinions created a starkly different constitutional status for unwed fathers than for unwed mothers, demanding additional actions and relationships before an unwed father was considered a constitutional father. Although state parentage statutes have progressed beyond their 1970s incarnations, the doctrine created in those family law cases continues to have impact far beyond family law. Transmission of citizenship in the context of immigration law and …

Parker V. Brown, The Eleventh Amendment, And Anticompetitive State Regulation, William H. Page, John E. Lopatka

Journal Articles

The Parker v. Brown (or “state action”) doctrine and the Eleventh Amendment of the Constitution impose different limits on antitrust suits challenging anticompetitive state regulation. The Supreme Court has developed these two versions of state sovereign immunity separately, and lower courts usually apply the immunities independently of each another (even in the same cases) without explaining their relationship. Nevertheless, the Court has derived the two immunities from the same principle of sovereign immunity, so it is worth considering why and how they differ, and what the consequences of the differences are for antitrust policy. The state action immunity is based …

Federalization's Folly, Stephen F. Smith

Journal Articles

Overcriminalization and overpunishment are the two key features of federal criminal law today, yet the constant drumbeat to “federalize” criminal law has accomplished precious little in terms of public safety. The failed drug war proves as much: federal prosecutors have filled the nation’s prisons with low-level drug dealers and drug users serving long sentences, but drugs remain widely available at greater purity and lower prices throughout the land — and drug overdoses are at record highs. Instead of focusing on areas of federal comparative advantage, such as terrorism, international drug trafficking, and organized crime, federal prosecutors waste scarce resources “playing …

Remarks On Prosecutorial Discretion And Immigration, Shoba Wadhia

Journal Articles

No abstract provided.

Trump, Gender Rebels, And Masculinities, Dara Purvis

Journal Articles

Since the inauguration of President Trump, most of his Administration’s actions have been sharply conservative: notably, his efforts to ban transgender Americans from military service. There have been exceptions, however, such as proposals to create support for paid parental leave, an issue previously championed by Democrats.

This seeming contradiction of progressive and regressive policies can be reconciled by viewing the Trump Administration through the lens of masculinities theory. Hegemonic masculinity depends upon sharp differentiation between “real” men and everyone else, the latter occupying places in a hierarchy far below men. In this reading, Trump’s version of parental support makes sense: …

Energy Re-Investment, Hari M. Osofsky, Jacqueline Peel, Brett H. Mcdonnell, Anita Foerster

Journal Articles

Despite worsening climate change threats, investment in energy — in the United States and globally — is dominated by fossil fuels. This Article provides a novel analysis of two pathways in corporate and securities law that together have the potential to shift patterns of energy investment.

The first pathway targets current investments and corporate decision-making. It includes efforts to influence investors to divest from owning shares in fossil fuel companies and to influence companies to address climate change risks in their internal decision-making processes. This pathway has received increasing attention, especially in light of the Paris Agreement and the Trump …

When Forum Selection Clauses Meet Choice Of Law Clauses, Tanya J. Monestier

Journal Articles

Many contracts that contain a forum selection clause also contain a choice of law clause. This raises the issue of whether to apply the parties’ chosen law to questions of forum selection clause interpretation, such as whether the clause is mandatory or permissive and how far the scope of the clause extends. The recent trend has been for courts to apply the law selected by the parties in their choice of law clause to govern these interpretation issues. This Article argues that the law has gone in the wrong direction and that courts should apply forum law to questions of …

All Costs Have A Right, Martha T. Mccluskey

Journal Articles

From "Eleven Things They Don’t Tell You About Law & Economics: An Informal Introduction to Political Economy and Law."

Many legal scholars have critiqued the dominant law and economics paradigm. However, important work is all too often neglected because it is not popularized in an accessible form. This Article features experts who synthesize their key insights into memorable and concise vignettes. Our 11 Things project is inspired by the work of the Cambridge economist Ha-Joon Chang, who distilled many facets of his work into a book called 23 Things They Don’t Tell You About Capitalism. That book was a runaway …

Environmental Law. Disrupted, Inara Scott, David Takacs, Rebecca Bratspies, Vanessa Casado Pérez, Robin Kundis Craig, Keith Hirokawa, Blake Hudson, Sarah Krakoff, Katrina Fischer Kuh, Jessica Owley, Melissa Powers, Shannon Roesler, Jonathan Rosenbloom, J. B. Ruhl, Erin Ryan

Journal Articles

No abstract provided.

Fish Encounters: Aquariums And Their Veterinarians In A Rapidly Changing World, Irus Braverman

Journal Articles

The extensive body of social science and humanities scholarship on zoos rarely discusses aquariums. Despite their independent historical trajectory and unique characteristics and challenges, aquariums are typically considered the younger sister to the more established terrestrial zoo institutions. This article is an initial exploration of modern public aquariums through the eyes of these institutions’ veterinarians, a small but rapidly growing, and quite influential, professional cohort. Drawing on in-depth interviews with a handful of aquarium veterinarians in various sites — including the United States, Canada, Israel, Portugal, Denmark, and Germany — the article documents some of the everyday challenges that these …