Law Commons^™

How The Dissent Becomes The Majority: Using Federalism To Transform Coalitions In The U.S. Supreme Court, Tonja Jacobi, Vanessa A. Baird

Faculty Articles

This Article proposes that dissenting Supreme Court Justices provide cues in their written opinions about how future litigants can reframe case facts and legal arguments in similar future cases to garner majority support. Questions of federal-state power cut across most other substantive legal issues, and this can provide a mechanism for splitting existing majorities in future cases. By signaling to future litigants when this potential exists, dissenting judges can transform a dissent into a majority in similar future cases.

We undertake an empirical investigation of dissenting opinions in which the dissenting Justice suggests that future cases ought to be framed …

Ideology And Exceptionalism In Intellectual Property: An Empirical Study, Matthew Sag, Tonja Jacobi, Maxim Sytch

Faculty Articles

In this Article, we examine the effect of judicial ideology on IP case outcomes before the Supreme Court from 1954 to 2006. We find that ideology is a significant determinant of IP cases: the more conservative a justice is, the more likely he or she is to vote in favor of recognizing and enforcing rights to intellectual property. We also find evidence that the relationship is more complex than a purely ideological account would suggest; our results suggest that law matters too. We find that a number of factors that are specific to IP are also consequential. Additionally, we show …

Social Movements And Judging: An Essay On Institutional Reform Litigation And Desegregation In Dallas, Texas, Darren L. Hutchinson

Faculty Articles

This Article discusses the political and legal barriers that have surfaced to undermine the ability of courts to fashion remedies that offer justice to aggrieved individuals and to render rights-based institutional reform liti­gation a judicial relic. Part II examines the historical development of in­stitutional reform litigation and examines the political factors that created the opportunity for dramatic changes in legal approaches to the issue of racial inequality. Part III examines litigation challenging segregation in Dallas public schools. It also discusses cases filed in the immediate post­-Brown era and contrasts those cases with Judge Sanders's rulings on the subject. In …

Super Medians, Lee Epstein, Tonja Jacobi

Faculty Articles

It is not surprising that virtually all analyses of the Supreme Court stress the crucial role played by the swing, pivotal, or median Justice: in theory, the median should be quite powerful. In practice, however, some are far stronger than others. Just as there are “super precedents” and “super statutes”—those that are weightier or more entrenched than others—there are “super medians”—Justices so powerful that they are able to exercise significant control over the outcome and content of the Court’s decisions.

Conventional wisdom holds that Justices accumulate power by virtue of their personality, methodological approach, or even background characteristics. But our …

Majority Politics And Race Based Remedies, Darren L. Hutchinson

Faculty Articles

This Essay applies the principles of social movement theory and analyzes the legal status of race-based remedies. Many scholars have debated the constitutionality and efficacy of affirmative action, the appropriateness of race-consciousness (from legal and social perspectives) and the legitimacy of structural judicial remedies for various types of discrimination. This paper will add to this literature by demonstrating the influence of conservative race politics and ideology on Court doctrine concerning affirmative action and other race-based remedies. In particular, this Essay will demonstrate that, consistent with broader political trends, the Court disfavors governmental usage of race as a remedy for discrimination …

Beyond Abstraction: The Law And Economics Of Copyright Scope And Doctrinal Efficiency, Matthew Sag

Faculty Articles

Uncertainty as to the optimum extent of protection generally limits the capacity of law and economics to translate economic theory into coherent doctrinal recommendations in the realm of copyright. This Article explores the relationship between copyright scope, doctrinal efficiency, and welfare from a theoretical perspective to develop a framework for evaluating specific doctrinal recommendations in copyright law.

The usefulness of applying this framework in either rejecting or improving doctrinal recommendations is illustrated with reference to the predominant law and economics theories of fair use. The metric-driven analysis adopted in this Article demonstrates the general robustness of the market-failure approach to …

God In The Machine: A New Structural Analysis Of Copyright's Fair Use Doctrine, Matthew Sag

Faculty Articles

Recognition of the structural role of fair use has the potential to mitigate some of the uncertainty of current fair use jurisprudence. The statutory framework for fair use both mitigates and causes uncertainty. It mitigates uncertainty by providing a consistent framework of analysis the four statutory factors. However, when judges apply the statutory factors without articulating or justifying their own assumptions, they increase uncertainty. The statutory factors mean nothing without certain a priori assumptions as to the scope of the copyright owner's rights. A more stable and predictable fair use jurisprudence would begin to emerge if those assumptions were made …

The Majoritarian Difficulty: Affirmative Action, Sodomy, And Supreme Court Politics, Darren L. Hutchinson

Faculty Articles

This Article challenges liberal and conservative assessments of Lawrence, Gratz, and Grutter. Although the outcome of these cases might indeed prove helpful to the agendas of social movements for racial and sexual justice, progressive scholars and activists should not receive these cases with elation. Instead, the research of constitutional theorists, critical legal scholars, and political scientists allows for a more contextualized and guarded account of and reaction to these decisions. Instead of representing extraordinary victories for oppressed classes, these cases reflect majoritarian and moderate views concerning civil rights, and the opinions contain many doctrinal elements that reinforce, …

The Effect Of 8 U. S. C. 1324(D) In Transporting Prosecutions: Does The Confrontation Clause Still Apply To Alien Defendants, Donna F. Coltharp

Faculty Articles

No abstract provided.

Unexplainable On Grounds Other Than Race: The Inversion Of Privilege And Subordination In Equal Protection Jurisprudence, Darren L. Hutchinson

Faculty Articles

In this article, Professor Darren Hutchinson contributes to the debate over the meaning of the Fourteenth Amendment’s Equal Protection Clause by arguing that the Supreme Court has inverted its purpose and effect. Professor Hutchinson contends that the Court, in its judicial capacity, provides protection and judicial solicitude for privileged and powerful groups in our country, while at the same time requires traditionally subordinated and oppressed groups to utilize the political process to seek redress for acts of oppression. According to Professor Hutchinson, this process allows social structures of oppression and subordination to remain intact.

First, Professor Hutchinson examines the various …

The More Things Change, The More They Stay The Same: Implications Of Pfaff V. Wells Electronics, Inc. And The Quest For Predictability In The On-Sale Bar, Timothy R. Holbrook

Faculty Articles

This Article posits a two prong approach to the on-sale bar. First, for the anticipatory version, the courts should expressly incorporate the law of enablement under 35 U.S.C. § 112 and of utility under 35 U.S.C. § 101 into the on-sale bar, thus providing a well-known body of law to promote predictability. Procedurally, the courts should establish a hierarchy of evidence, similar to the approach used in claim construction, that considers certain, more readily available information as the most pertinent while eschewing the use of expert testimony and other litigation based evidence. Second, for the obviousness version of the on-sale …

Writing In The Margins: Brennan, Marshall, And The Inherent Weaknesses Of Liberal Judicial Decision-Making (Essay), Donna F. Coltharp

Faculty Articles

No abstract provided.

Term Limits On Original Intent--An Essay On Legal Debate And Historical Understanding, Polly J. Price

Faculty Articles

This Essay is divided into five Parts. Part I sets the stage for the historical debate by evaluating the text of the Qualifications Clauses as well as the limited evidence of what the Framers and the ratifiers thought about these provisions. Part II shows that many states, immediately after the federal Constitution was ratified, behaved as though the Qualifications Clauses did not prevent them from adding qualifications for congressional office-holding. Part III compares this early evidence of state behavior with a debate in Congress after the Civil War concerning the meaning of the Qualifications Clauses. Part IV returns to the …

Compounding Confusion And Hampering Diversity: Life After Finley And The Supplemental Jurisdiction Statute, Richard D. Freer

Faculty Articles

It has been a tough couple of years for supplemental jurisdiction. In recent decades, the doctrine, which earlier had been called the "child of necessity and sire of confusion," had become somewhat less confusing. The Supreme Court created a flurry of concern over the future of the doctrine with a pair of restrictive decisions in the late 1970s, but showed no further interest; the lower courts generally interpreted those holdings narrowly. With exceptions in a couple of areas, the application of supple­mental jurisdiction in the various joinder situations became relatively clear and predictable, and the doctrine played a major role …