Open Access. Powered by Scholars. Published by Universities.®
- Discipline
Articles 1 - 10 of 10
Full-Text Articles in Law
What Is "United" About The United States?, Gary S. Lawson
What Is "United" About The United States?, Gary S. Lawson
Faculty Scholarship
Jack Balkin’s The Cycles of Constitutional Time aims, among other things, to preserve and promote what Jack regards as “democracy and republicanism,” understood as “a joint enterprise by citizens and their representatives to pursue and promote the public good.” My question is whether and how this normative project is possible in a world full of perceptions of social, political, and moral phenomena akin to the white dress/blue dress internet controversy of 2015. Even if Madison had the better of Montesquieu in 1788 (and that is questionable), the United States has grown dramatically since the founding era, in a patchwork, and …
Legacies Of Pragmatism, Robert L. Tsai
Legacies Of Pragmatism, Robert L. Tsai
Faculty Scholarship
Pragmatism has triumphed in the law by becoming all things to all people—or has it? This essay, prepared for a symposium at Drake University Law School's Constitutional Law Center, examines the future of pragmatism in constitutional thought. First, I revisit the work of William James to recover the ideal disposition of a pragmatist decision maker. Second, I analyze pragmatism's impact on constitutional theory from Richard Posner to Cass Sunstein, from Philip Bobbitt to Willy Forbath and Joey Fishkin. I show that pragmatism lives on in constitutional theories that don't self-consciously characterize themselves in such terms. I also contend that pragmatism …
Sandel On Religion In The Public Square, Hugh Baxter
Sandel On Religion In The Public Square, Hugh Baxter
Faculty Scholarship
In the final chapter of "Justice" (2009), Sandel calls for a “new politics of the common good,” which he presents as an alternative to John Rawls’s idea of public reason. Sandel calls “misguided” Rawls’s search for “principles of justice that are neutral among competing conceptions of the good life.” According to Sandel, “[i]t is not always possible to define our rights and duties without taking up substantive moral questions; and even when it’s possible it may not be desirable.” In taking up these moral questions, Sandel writes, we must allow specifically religious convictions and reasons into the sphere of public …
Render Copyright Unto Caesar: On Taking Incentives Seriously, Wendy J. Gordon
Render Copyright Unto Caesar: On Taking Incentives Seriously, Wendy J. Gordon
Faculty Scholarship
This Essay suggests we bifurcate our thinking. Conventional copyright rules by money, so let it rule the money-bound. Let a different set of rules evolve for more complex uses, particularly when the users have a personal relationship with the utilized text. Much recent scholarship contains dramatic suggestions to secure a freedom to be creative, rewrite, and be imaginative. My work has long sought to defend such freedoms, but I believe we understand imagination and its conditions too little to employ it as a starting point. I suggest instead that we acquire a better conceptual map of the generative process and …
Footnote Draft Of Render Copyright Unto Caesar - 2004, Wendy J. Gordon
Footnote Draft Of Render Copyright Unto Caesar - 2004, Wendy J. Gordon
Scholarship Chronologically
This essay, however, does not press any particular agenda; rather, it tries to make our thinking about the topic more flexible. It is my hope that some conduct-specific rule as was adopted in the defamation context will eventually be adopted for intellectual property. Copyright law cannot continue forever closing its eyes and hoping its house will stop being haunted.
Draft Of Rendering Copyright Into Caesar - 2003, Wendy J. Gordon
Draft Of Rendering Copyright Into Caesar - 2003, Wendy J. Gordon
Scholarship Chronologically
This article makes a simple suggestion. Copyright rules by money, so let it rule the money-bound. Let a different set of rules evolve for more complex uses, particularly when the users have a personal relationship with the utilized text. Copyright. When new artists make transformative use of existing works in settings not characterized by pre-use commercial negotiations, copyright should avoid imposing a distorting burden.
New Thoughts And Excerpt From On Commodifying Intangibles - 1999, Wendy J. Gordon
New Thoughts And Excerpt From On Commodifying Intangibles - 1999, Wendy J. Gordon
Scholarship Chronologically
Here is a ten-page excerpt from! a published piece, followed by some more recent and more random thoughts. Community is not civility. That is, I imagine my ideal community as one where people aren't always sweet to each other; I imagine a community where truth is more important than hurt feelings, and fun is more important than money. I imagine a community of individualists: raucous, iconoclastic. Steve Shiffrin's ROMANCE OF THE FIRST AMENDMENT and Ed Baker's work seems to have the kind of community in mind that I am interested in.
On Commodifying Intangibles, Wendy J. Gordon, Sam Postbrief
On Commodifying Intangibles, Wendy J. Gordon, Sam Postbrief
Faculty Scholarship
It was made clear long ago that property and value are different things. Value exists. It is a fact. It can arise from law, and much of law aims at creating more value in the world. But value can also arise in spite of law (consider, for example, the fortunes that bootleggers made during the Roaring Twenties), or in law's interstices. When a particular value arises despite a lack of explicit legal protection, its possessors often ask courts or legislatures to give them a legal entitlement to preserve and further exploit that value. Typically the holders demand (1) a liberty …
Truth And Consequences: The Force Of Blackmail's Central Case, Wendy J. Gordon
Truth And Consequences: The Force Of Blackmail's Central Case, Wendy J. Gordon
Faculty Scholarship
Blackmail commentary continues to proliferate. One purpose of this paper is to show what we agree on. Its primary tool will be to define what I call the "central case" of blackmail literature, and to supply the connecting links that will allow us to see how various normative theories converge in condemning central case blackmail. Admittedly, the law criminalizes more than my central case. But once we recognize that the central case is neither puzzling nor paradoxical, it may be easier to handle the border cases that arise.
Holmes And Brandeis: Libertarian And Republican Justifications For Free Speech, Pnina Lahav
Holmes And Brandeis: Libertarian And Republican Justifications For Free Speech, Pnina Lahav
Faculty Scholarship
Writing The Name of the Rose, observed Umberto Eco, made him aware of the "echoes of intertextuality." He discovered what "Homer, Rabelais and Cervantes have always known: . . .books always speak of other books, and every story tells a story that has already been told."' The same applies to political and legal theories: they weave the past into the present. Thus, in articulating justifications for freedom of speech, one may look to modern works such as Milton or John Stuart Mill, or one may reach farther back to Aristotle, Plato or Pericles. The choice of intellectual sources as …