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Articles 1 - 15 of 15
Full-Text Articles in Law
The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh
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 …
In Memorium: Bernard Wolfman, Michael A. Fitts
In Memorium: Bernard Wolfman, Michael A. Fitts
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No abstract provided.
Life Without Parole Under Modern Theories Of Punishment, Paul H. Robinson
Life Without Parole Under Modern Theories Of Punishment, Paul H. Robinson
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Life without parole seems an attractive and logical punishment under the modern coercive crime-control principles of general deterrence and incapacitation, a point reinforced by its common use under habitual offender statutes like "three strikes." Yet, there is increasing evidence to doubt the efficacy of using such principles to distributive punishment. The prerequisite conditions for effective general deterrence are the exception rather than the rule. Moreover, effective and fair preventive detention is difficult when attempted through the criminal justice system. If we really are committed to preventive detention, it is better for both society and potential detainees that it be done …
The Relational Contingency Of Rights, Gideon Parchomovsky, Alex Stein
The Relational Contingency Of Rights, Gideon Parchomovsky, Alex Stein
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In this Article, we demonstrate, contrary to conventional wisdom, that all rights are relationally contingent. Our main thesis is that rights afford their holders meaningful protection only against challengers who face higher litigation costs than the rightholder. Contrariwise, challengers who can litigate more cheaply than a rightholder can force the rightholder to forfeit the right and thereby render the right ineffective. Consequently, in the real world, rights avail only against certain challengers but not others. This result is robust and pervasive. Furthermore, it obtains irrespectively of how rights and other legal entitlements are defined by the legislator or construed by …
International Civil Litigation In U.S. Courts: Becoming A Paper Tiger?, Stephen B. Burbank
International Civil Litigation In U.S. Courts: Becoming A Paper Tiger?, Stephen B. Burbank
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No abstract provided.
What Must We Hide: The Ethics Of Privacy And The Ethos Of Disclosure, Anita L. Allen
What Must We Hide: The Ethics Of Privacy And The Ethos Of Disclosure, Anita L. Allen
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No abstract provided.
Danger: The Ethics Of Preemptive Action, Larry Alexander, Kimberly Kessler Ferzan
Danger: The Ethics Of Preemptive Action, Larry Alexander, Kimberly Kessler Ferzan
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The law has developed principles for dealing with morally and legally responsible actors who act in ways that endanger others, the principles governing crime and punishment. And it has developed principles for dealing with the morally and legally nonresponsible but dangerous actors, the principles governing civil commitments. It has failed, however, to develop a cogent and justifiable set of principles for dealing with responsible actors who have not yet acted in ways that endanger, others but who are likely to do so in the future, those whom we label "responsible but dangerous" actors (RBDs). Indeed, as we argue, the criminal …
Culpable Aggression: The Basis For Moral Liability To Defensive Killing, Kimberly Kessler Ferzan
Culpable Aggression: The Basis For Moral Liability To Defensive Killing, Kimberly Kessler Ferzan
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The use of the term, "self-defense, " covers a wide array of defensive behaviors, and different actions that repel attacks may be permissible for different reasons. One important justificatory feature of some defensive behaviors is that the aggressor has rendered himself liable to defensive force by his own conduct. That is, when a culpable aggressor points a gun at a defender, and says, "I am going to kill you," the aggressor's behavior forfeits the aggressor's right against the defender's infliction of harm that is intended to repel the aggressor's attack. Because the right is forfeited, numbers do not count (the …
Locking The Doors To Discovery? Assessing The Effects Of Twombly And Iqbal On Access To Discovery, Jonah B. Gelbach
Locking The Doors To Discovery? Assessing The Effects Of Twombly And Iqbal On Access To Discovery, Jonah B. Gelbach
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Many observers believe the Supreme Court’s Twombly and Iqbal opinions have curtailed access to civil justice. But previous empirical studies looking only at Rule 12(b)(6) grant rates have failed to capture the full effect of these cases because they have not accounted for party selection—changes in party behavior that can be expected following changes in pleading standards. In this Note, I show how party selection can be expected to undermine the empirical usefulness of simple grant-rate comparisons. I then use a conceptual model of party behavior that allows me to derive an adjusted measure of Twombly/Iqbal’s impact and show …
Facebook Fallacies, Geoffrey C. Hazard Jr.
Facebook Fallacies, Geoffrey C. Hazard Jr.
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No abstract provided.
Will The Real Paul Robinson Please Stand Up? Robinson's Conflicting Criminal Code, Kimberly Kessler Ferzan
Will The Real Paul Robinson Please Stand Up? Robinson's Conflicting Criminal Code, Kimberly Kessler Ferzan
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No abstract provided.
Introduction: Punishment And Culpability, Mitchell N. Berman
Introduction: Punishment And Culpability, Mitchell N. Berman
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No abstract provided.
Perceptions Of Fairness And Justice: The Shared Aims And Occasional Conflicts Of Legitimacy And Moral Credibility, Josh Bowers, Paul H. Robinson
Perceptions Of Fairness And Justice: The Shared Aims And Occasional Conflicts Of Legitimacy And Moral Credibility, Josh Bowers, Paul H. Robinson
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No abstract provided.
Notice-And-Comment Sentencing, Stephanos Bibas, Richard A. Bierschbach
Notice-And-Comment Sentencing, Stephanos Bibas, Richard A. Bierschbach
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No abstract provided.
The Machinery Of Criminal Justice, Stephanos Bibas
The Machinery Of Criminal Justice, Stephanos Bibas
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Two centuries ago, the American criminal justice was run primarily by laymen. Jury trials passed moral judgment on crimes, vindicated victims and innocent defendants, and denounced the guilty. But over the last two centuries, lawyers have taken over the process, silencing victims and defendants and, in many cases, substituting a plea-bargaining system for the voice of the jury. The public sees little of how this assembly-line justice works, and victims and defendants have largely lost their day in court. As a result, victims rarely hear defendants express remorse and apologize, and defendants rarely receive forgiveness. This lawyerized machinery has purchased …