Jurisprudence Commons^™

Comparative Tales Of Origins And Access: Intellectual Property And The Rhetoric Of Social Change, Jessica Silbey

Faculty Scholarship

This Article argues that the open-source and anti-expansionist rhetoric of current intellectual-property debates is a revolution of surface rhetoric but not of deep structure. What this Article terms “the Access Movements” are, by now, well-known communities devoted to providing more access to intellectual-property-protected goods, communities such as the Open Source Initiative and Access to Knowledge. This Article engages Movement actors in their critique of the balance struck by recent law (statutes and cases) and asks whether new laws that further restrict access to intellectual property “promote the progress of science and the useful arts.” Relying on cases, statutes and recent …

Review Of Law At The Vanishing Point By Aaron Fichtelberg, Robert D. Sloane

Faculty Scholarship

This is a largely critical review of Professor Aaron Fichtelberg’s philosophical analysis of international law. The centerpiece of the book’s affirmative agenda, a “non-reductionist” definition of international law that purports to elide various forms of international law skepticism, strikes the reviewer as circular, misguided in general, and, in its application to substantive international legal issues, difficult to distinguish from a rote form of legal positivism. Law at the Vanishing Point’s avowed empirical methodology and critical agenda, while largely unobjectionable, offer little that has not been said before, often with equal if not greater force. I commend the author’s effort to …

Behavioral Decision Theory And Implications For The Supreme Court's Campaign Finance Jurisprudence, Molly J. Walker Wilson

Cardozo Law Review

America stands at a moment in history when advances in the understanding of human decision-making are increasing the strategic efficacy of political strategy. As campaign spending for the presidential race reaches hundreds of millions of dollars, the potential for harnessing the power of psychological tactics becomes considerable. Meanwhile, the Supreme Court has characterized campaign money as "speech" and has required evidence of corruption or the appearance of corruption in order to uphold restrictions on campaign expenditures. Ultimately, the Court has rejected virtually all restrictions on campaign spending on the ground that expenditures, unlike contributions, do not contribute to corruption or …

The Bankruptcy Hegemon: Section 524(A) And Its Effect On State And Federal Comity, Benjamin Margulis

Cardozo Law Review

No abstract provided.

The Geography Of Criminal Law, Adam Benforado

Cardozo Law Review

When Westerners explain the causes of actions or outcomes in the criminal law context, they demonstrate a strong tendency to overestimate the importance of dispositional factors, like thinking, preferring, and willing, and underestimate the impact of interior and exterior situational factors, including environmental, historical, and social forces, as well as affective states, knowledge structures, motives, and other unseen aspects of our cognitive frameworks and processes. One of the situational factors that we are particularly likely to overlook is physical space - that is, landscapes, places, natures, boundaries, and spatialities. Our shortsightedness comes at a great cost. Spatial concerns shape legal …

Finding Fault With Defaults: New York Courts' Inconsistent Application Of Issue Preclusion To Default Judgments, David Noland

Cardozo Law Review

No abstract provided.

Introduction To The South Dakota Law Review's 2010 Symposium Issue, Marci A. Hamilton

Articles

No abstract provided.

Philosophical Legal Ethics: Ethics, Morals, And Jurisprudence, Alice Woolley, W. Bradley Wendel, William H. Simon, Stephen Pepper, Daniel Markovitz, Katherine R. Kruse, Tim Dare

Faculty Scholarship

The authors and moderator David Luban participated in a plenary session of the International Legal Ethics Conference IV, held at Stanford. Each author answered and discussed questions arising from short papers they had written about the principal concern of legal ethics was the morality of lawyers, the morality of clients, or the morality of laws?

Those papers, which are to be published in Legal Ethics, are compiled here, along with the question and background information with which the panelists were provided.

The Irrepressible Myth Of Klein, Howard M. Wasserman

Faculty Publications

The Reconstruction-era case of United States v. Klein remains the object of a “cult” among commentators and advocates, who see it as a powerful separation of powers precedent. In fact, Klein is a myth—actually two related myths. One is that it is opaque and meaninglessly indeterminate because, given its confusing and disjointed language, its precise doctrinal contours are indecipherable; the other is that Klein is vigorous precedent, likely to be used by a court to invalidate likely federal legislation. Close analysis of Klein, its progeny, and past scholarship uncovers three identifiable core limitations on congressional control over the workings of …