Law Commons^™

The Hegemony Of The Copyright Treatise, Ann Bartow

Ann Bartow

This Article asserts that major conceptions about the appropriate structure, texture, and span of copyright protections and privileges have been fashioned by copyright treatises, particularly the various editions of Nimmer on Copyright. Copyright treatises function in concert with the machinations of Congress, the courts, and custom, but their role is not often scrutinized.

Because copyright treatises typically do a far better job than Congress or the courts of explicating copyright law in straightforward and accessible language, such treatises can not only communicate the copyright law, but also influence its development and direction. Policy makers no doubt understand that content owners …

Knowledge Constnlction And Academic Transformation On Sociology Of Law Studies In China(中国法律社会学的知识建构和学术转型), Meng Hou

Hou Meng

No abstract provided.

Religious Organizations And Free Exercise: The Surprising Lessons Of Smith, Kathleen Brady

Kathleen A Brady

Much has been written about the protections afforded by the Free Exercise Clause when government regulation impacts the religious practices of individuals, and if one looks for guidance from the Supreme Court, the rules are fairly clear. Prior to 1990, the Supreme Court had long employed a balancing approach that afforded—at least in theory—significant relief. Under this approach individuals were entitled to exemptions from laws which substantially burdened religious conduct unless enforcement was justified by a compelling state interest. In 1990, in Employment Division v. Smith, the Supreme Court abandoned this balancing test for all but a few categories of …

Rights, Rationality, And The Preemption Of Reasons, Richard Warner

Richard Warner

No abstract provided.

The Transformation Of The International Legal System: The Post-Westphalian Legal Order, Eric A. Engle

Eric A. Engle

Traces the rise and decline of the national state as hermetic juridical atom (realist 'billiard ball' theory) and its replacement by a multilevel theory which sublimates state power upward as it dissolves it downward to non-state actors. Argues that classical sovereignty created and encouraged war and that post-Westphalian world is integrated networked and much more stable. Citations from the text: The rise of private rights and duties under national and international law enforced through universal jurisdiction and supranational trading systems both global and regional together mark the end of the Westphalian state system. ... In this system, states were the …

A Key Influence On The Doctrine Of Actual Malice: Justice William Brennan’S Judicial Philosophy At Work In Changing The Law Of Seditious Libel, Carlo A. Pedrioli

Carlo A. Pedrioli

In light of the historical change in the law of seditious libel that New York Times v. Sullivan (1964) prompted and the need for further exploration of the human factors behind the case, this article gives attention to William Brennan’s judicial philosophy at work in the case. The article defines judicial philosophy as a system of guiding principles upon which a judge calls in the process of legal decision-making. Specifically, the article explains how, through Times v. Sullivan, Brennan’s instrumentalist judicial philosophy had an important influence on changing the course of legal protection for criticism of the government in the …

Direct Shipment Of Wine, The Dormant Commerce Clause And The Twenty-First Amendment: A Call For Legislative Reform, Lloyd C. Anderson

Lloyd C. Anderson

Many states prohibit out-of-state sellers of wine from shipping their product directly to consumers, but permit in-state wine producers to engage in such direct shipment. Recent lower federal court decisions have cast serious constitutional doubt upon the authority of a state to discriminate in this manner against wine producers and sellers from other states in favor of its own domestic wine industry. This issue appears headed for the Supreme Court of the United States in the near future. The outcome cannot be foreseen with certainty, but it is likely the Court will find this discrimination unconstitutional. ‘Twas not always so. …

Jurisprudential Revolution Unlocking Human Potential In Lawrence And Grutter, Wilson R. Huhn

Wilson R. Huhn

The decisions of the Supreme Court in Lawrence v. Texas and Grutter v. Bollinger, stripped to their bare holdings, have little immediate effect on existing law. After Grutter, colleges and graduate schools will continue to take race into account in admitting students to enroll a diverse student body, just as they have done for the past quarter century in conformity with Justice Lewis Powell's opinion in Regents of the University of California v. Bakke. After Lawrence, laws against gay sex may no longer be enforced, but only a handful of states still had these laws on the books at the …

Scienter, Causation, And Harm: The Right-Hand Side Of The Constitutional Calculus, Wilson R. Huhn

Wilson R. Huhn

But, although the rights of free speech and assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction, if the particular restriction proposed is required in order to protect the state from destruction or from serious injury, political, economic or moral.

Laws that infringe on freedom of expression, like all prohibitory laws, are enacted to prevent harm from occurring. The Supreme Court has refused to confer absolute protection upon freedom of expression, a position that would render all laws restricting expression unconstitutional. Instead, to determine the constitutionality of laws restricting expression, the Court has …

Federalism As Balance, Robert Justin Lipkin

Robert Justin Lipkin

Federalism as balance between the federal government and the states is a deeply entrenched principle of American constitutional law. Without the idea of balance or some replacement concept, judges and constitutional scholars seem incapable of conceptualizing federalism and resolving federalist conflicts. The thesis of the Article is that federalism as balance must be reexamined to assess whether it is jurisprudentially sound. For this purpose, the Article introduces a framework for understanding balancing discourse generally. Upon examination, federalism as balance does not satisfy the requirements articulated by this framework. The result is that this conception has no discernible content and therefore …

The Birth Of A "Logical System": Thurman Arnold And The Making Of Modern Administrative Law, Mark Fenster

Mark Fenster

Rhetoric, Public Reason And Bioethics: The President's Council On Bioethics And Human Cloning, M. Cathleen Kaveny

M. Cathleen Kaveny

No abstract provided.