Jurisprudence Commons^™

The Infringement Continuum, Bernard Chao

Cardozo Law Review

For many years, patent law has struggled with the issue of permissible claim scope. A patent's specification and its claims often suffer from a surprising disconnect. The specification generally describes an invention in terms of one or more specific implementations, suggesting a relatively narrow invention. But claims are drafted far more broadly. They frequently encompass unforeseen variations and even cover after-arising technology.

Although there are numerous existing doctrines that try to prevent claims from straying too far from their specification, these doctrines offer binary outcomes ill suited for patent law. Under these doctrines, as a claim encompasses subject matter further …

Remaking Mexico: Law Reform As Foreign Policy, Deborah M. Weissman

Cardozo Law Review

No abstract provided.

Analogical Legal Reasoning: Theory And Evidence, Joshua C. Teitelbaum

Georgetown Law Faculty Publications and Other Works

The paper offers a formal model of analogical legal reasoning and takes the model to data. Under the model, the outcome of a new case is a weighted average of the outcomes of prior cases. The weights capture precedential influence and depend on fact similarity (distance in fact space) and precedential authority (position in the judicial hierarchy). The empirical analysis suggests that the model is a plausible model for the time series of U.S. maritime salvage cases. Moreover, the results evince that prior cases decided by inferior courts have less influence than prior cases decided by superior courts.

Asymmetric Empirical Similarity, Joshua C. Teitelbaum

Georgetown Law Faculty Publications and Other Works

The paper offers a formal model of analogical legal reasoning and takes the model to data. Under the model, the outcome of a new case is a weighted average of the outcomes of prior cases. The weights capture precedential influence and depend on fact similarity (distance in fact space) and precedential authority (position in the judicial hierarchy). The empirical analysis suggests that the model is a plausible model for the time series of U.S. maritime salvage cases. Moreover, the results evince that prior cases decided by inferior courts have less influence than prior cases decided by superior courts.

The Puzzling Presumption Of Reviewability, Nicholas Bagley

Articles

The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors - appellate-style arbitrariness review - was not only unheard of prior to the twentieth century, but …

Artificial Meaning, Lawrence B. Solum

Faculty Scholarship

This Essay investigates the concept of artificial meaning, meanings produced by entities other than individual natural persons. That investigation begins in Part I with a preliminary inquiry into the meaning of “meaning,” in which the concept of meaning is disambiguated. The relevant sense of “meaning” for the purpose of this inquiry is captured by the idea of communicative content, although the phrase “linguistic meaning” is also a rough equivalent. Part II presents a thought experiment, The Chinese Intersection, which investigates the creation of artificial meaning produced by an AI that creates legal rules for the regulation of a hyper-complex conflux …

Communicative Content And Legal Content, Lawrence B. Solum

Notre Dame Law Review

This Essay investigates a familiar set of questions about the relationship between legal texts (e.g., constitutions, statutes, opinions, orders, and contracts) and the content of the law (e.g., norms, rules, standards, doctrines, and mandates). Is the original meaning of the constitutional text binding on the Supreme Court when it develops doctrines of constitutional law? Should statutes be given their plain meaning or should judges devise statutory constructions that depart from the text to serve a purpose? What role should default rules play in the interpretation and construction of contracts? This Essay makes two moves that can help lawyers and legal …

Hierarchically Variable Deference To Agency Interpretations, Aaron-Andrew P. Bruhl

Notre Dame Law Review

When courts review agency action, they typically accord agency decisions a degree of deference. As many courts and commentators have recognized, the law in this area is complicated because it features numerous standards of review, including several distinct regimes for evaluating agencies’ legal interpretations. There is, however, at least one important respect in which uniformity rather than variety prevails: the applicable standards of review do not vary depending on which court is reviewing the agency. Whichever standard governs a particular case—Chevron, Skidmore, or something else—all courts in the judicial hierarchy are supposed to apply that same standard.

This Article proposes …

An Empirical Study Of The Use Of Legal Scholarship In Supreme Court Trademark Jurisprudence, Derek Simpson, Lee Petherbridge

Cardozo Law Review

Although the usefulness of law review and law journal articles to the decisional lawmaking process is a topic that has captured the imagination of jurists, reporters, and legal academics like few others, very little is actually known about how and why courts use such legal scholarship. This Article addresses that lack of knowledge. It reports an empirical study of the Supreme Court's use of legal scholarship in its trademark jurisprudence that spans the years 1949-2011. Among its contributions are: (1) the identification of Supreme Court trademark cases using and not using legal scholarship, including the identification of the pieces of …

The Politics Of Statutory Interpretation, Margaret H. Lemos

Notre Dame Law Review

In a new book, Reading Law: The Interpretation of Legal Texts, Justice Antonin Scalia and Bryan Garner describe and defend the textualist methodology for which Justice Scalia is famous. For Scalia and Garner, the normative appeal of textualism lies in its objectivity: by focusing on text, context, and canons of construction, textualism offers protection against ideological judging—a way to separate law from politics. Yet, as Scalia and Garner well know, textualism is widely regarded as a politically conservative methodology. The charge of conservative bias is more common than it is concrete, but it reflects the notion that textualism narrows the …

Reconciling Originalism With The Father Of Conservatism: How Edmund Burke Answers The Disruption Dilemma In N.L.R.B. V. Noel Canning, Brad Masters

BYU Law Review

No abstract provided.

The Means Principle, Larry Alexander

Faculty Scholarship

Michael Moore believes there are deontological constraints on actors’ pursuit of good consequences. He believes these constraints are best conceived of as agent-relative prohibitions such as “you must not intentionally kill, batter, rape, steal, etc.” I, joined in recent years by Kimberly Ferzan, believe that the best interpretation of deontological constraints — the interpretation that best accounts for our intuitions about certain stock cases — is that they are constraints on the causal means by which good consequences may be achieved. We believe those constraints can be unified under a single deontological principle, what we call the “means principle.” It …

A Dynamic Theory Of Judicial Role, David Landau

Scholarly Publications

Recent scholarship has focused heavily on the activism of courts in the fragile democracies of the “Global South.” Courts in countries like India, Colombia, and South Africa have issued landmark decisions in difficult political environments, in the process raising unanswered questions about the appropriate conception of judicial role in these climates. Much of the judicial and academic effort in these contexts is self-consciously oriented towards using courts to carry out basic improvements in the quality of political systems seen as badly deficient. In other words, the core task is to improve the quality of the democratic system over time. These …

Seek Justice, Not Just Deportation: How To Improve Prosecutorial Discretion In Immigration Law, Erin B. Corcoran

Law Faculty Scholarship

Bipartisan politics has prevented meaningful reform to a system in dire need of solutions: Immigration. Meanwhile there are eleven million noncitizens with no valid immigration status who currently reside in the United States and the Department of Homeland Security (DHS) does not have the necessary resources to effect their removal. DHS does have the authority through prosecutorial discretion to prioritize these cases and provide relief to individuals with compelling circumstances that warrant humanitarian consideration; nonetheless, DHS’s exercise of prosecutorial discretion is underutilized, inconsistently applied and lacks transparency. This Article suggests a remedy – that the immigration prosecutor’s role should redefined …

Irresistible As A Matter Of Law: Why Title Vii Jurisprudence Administered The Coup De Grace To The Purposivist Method Of Statutory Interpretation, Robert A. Pellow

Barry Law Review

No abstract provided.

In Opposition Of Cultural Institutionalization Of Speech Following U.S. Intervention Into Foreign Governments, Carmen M. Cusack

Barry Law Review

No abstract provided.

Has Society Become Tolerant Of Further Infringement On First Amendment Rights?, Nicholas Primrose

Barry Law Review

No abstract provided.

Construction Vs. Development: Polarizing Models Of Human Gestation, Richard Stith

Law Faculty Publications

This essay argues that the polarization of our public debate over embryo-destructive research may be due, to a large extent, not to different valuations of individual human life but to different conceptions of the process of gestation, with one group treating the process as a making or construction and the other treating it as a development. These two incompatible models of reproduction are shown to explain the various positions commonly encountered in this debate over the treatment of embryos, and to a significant degree those encountered in the debate over abortion as well. Finally, the historical, theoretical, and intuitive strengths …

The Age Of Constitutions In The Americas, M C. Mirow

Faculty Publications

The late eighteenth and nineteenth centuries have been aptly called the “Age of Codifications.” The same period was also the Age of Constitutions. Although a great deal is known about the migration of prenational and transnational legal sources and ideas that led to national codes of civil and criminal law in Europe and the Americas, much less is known about similar processes on the constitutional level. Constitutional historians have been more parochial than their private law counterparts, most likely because of the relationship between constitutions and nations. In the light of independence, nations immediately needed constitutions to solidify gains and …

Juror Internet Misconduct: A Survey Of New Hampshire Superior Court Judges, Brooke Lovett Shilo

The University of New Hampshire Law Review

[Excerpt] “The Constitution guarantees criminal defendants the right to a fair trial before an impartial jury and the right to confront the evidence against them. When a juror improperly accesses the Internet during a criminal trial, the defendant is denied these constitutional rights. The problem of outside information entering the courtroom is as old as our judicial system. As early as 1907, Justice Holmes observed that, “The theory of our [criminal justice] system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, …