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Full-Text Articles in Law

Administrative Law In The Roberts Court: The First Four Years, Robin K. Craig Sep 2009

Administrative Law In The Roberts Court: The First Four Years, Robin K. Craig

Robin K. Craig

Given Justice David Souter’s retirement in the summer of 2009, the four U.S. Supreme Court terms that began in October 2005 and ended in June 2009 constitute a first distinct phase of the Roberts Court. During those first four terms, moreover, the Court decided a number of cases relevant to the practice and structure of administrative law.

This Article provides a comprehensive survey and summary of the Supreme Court’s administrative-law-related decisions issued during this first phase of the Roberts Court. It organizes those decisions into three categories. Part I of this Article discusses the Supreme Court decisions that affect access …


Ip And Antitrust: Errands Into The Wilderness, Herbert Hovenkamp Aug 2009

Ip And Antitrust: Errands Into The Wilderness, Herbert Hovenkamp

Herbert Hovenkamp

IP AND ANTITRUST: ERRANDS INTO THE WILDERNESS

ABSTRACT

Antitrust and intellectual property law both seek to promote economic welfare by facilitating competition and investment in innovation. At various times both antitrust and IP law have wandered off this course and have become more driven by special interests. Today, antitrust and IP are on very different roads to reform. Antitrust began an Errand into the Wilderness in the late 1970s with a series of Supreme Court decisions that linked the plaintiff’s harm and right to obtain a remedy to the competition-furthering goals of antitrust policy. Today, patent law has begun its …


Ambiguity About Ambiguity: An Empirical Inquiry Into Legal Interpretation, Anup Malani Mar 2009

Ambiguity About Ambiguity: An Empirical Inquiry Into Legal Interpretation, Anup Malani

Anup Malani

Most scholarship on statutory interpretation discusses what courts should do with ambiguous statutes. This paper investigates the crucial and analytically prior question of what ambiguity in law is. Does a claim that a text is ambiguous mean the reader is uncertain about its meaning? Or is it a claim that readers, as a group, would disagree about what the text means (however certain each of them may be individually)? This distinction is of considerable theoretical interest. It also turns out to be highly consequential as a practical matter.

To demonstrate, we developed a survey instrument for exploring determinations of ambiguity …


Looking For Fair Use In The Dmca's Safety Dance, Ira Nathenson Jan 2009

Looking For Fair Use In The Dmca's Safety Dance, Ira Nathenson

Ira Steven Nathenson

Like a ballet, the notice-and-take-down provisions of the Digital Millennium Copyright Act ("DMCA") provide complex procedures to obtain take-downs of online infringement. Copyright owners send notices of infringement to service providers, who in turn remove claimed infringement in exchange for a statutory safe harbor from copyright liability. But like a dance meant for two, the DMCA is less effective in protecting the "third wheel," the users of internet services. Even Senator John McCain - who in 1998 voted for the DMCA - wrote in exasperation to YouTube after some of his presidential campaign videos were removed due to take-downs. McCain …