Patent Law's Audience
By Mark D. Janis & Timothy R. Holbrook. Full text here. Many rules of patent law rest on a false premise about their target audience. Rules of patentability purport to provide subtle incentives to innovators. However, innovators typically encounter these rules only indirectly, through intermediaries such as lawyers, venture capitalists, managers, and others. Rules of patent…
Continue ReadingNotice-and-Comment Sentencing
By Richard A. Bierschbach & Stephanos Bibas. Full text here. As the real policymakers of criminal justice, prosecutors and other criminal justice professionals resolve many of the complex debates about justice in sentencing by deciding what charges to file, what plea bargains to strike, and what sentences to recommend. But they make those value-laden decisions out…
Continue ReadingToo Much for Too Little: The Restatement’s Measure of Damages Where the Trustee Sells a Trust Asset for an Insufficient Price
By Richard Thomson. Full text here.
Continue ReadingCopyright Exhaustion and the Personal Use Dilemma
By Aaron Perzanowski & Jason Schultz. Full text here.
Continue ReadingNote: Loaded Questions: A Suggested Constitutional Framework for the Right to Keep and Bear Arms
By Reid Golden. Full text here. Recent developments in the interpretation of the Second Amendment left unanswered questions regarding the scope of the constitutional guarantee of armed self-defense. Most importantly, neither District of Columbia v. Heller nor McDonald v. City of Chicago set a firm standard for determining the constitutionality of gun-control laws. This determination is…
Continue ReadingNote: Juveniles Locked in Limbo: Why Pretrial Detention Implicates a Fundamental Right
By Shana Conklin. Full text here. At the birth of the juvenile court, reformers attempted to develop a system that melded child welfare concerns with crime control. Despite the founders’ original intentions, however, the juvenile court system has moved away from the therapeutic model to a punitive model. The increasingly punitive nature of the system…
Continue ReadingNew Evidence on Appeal
By Jeffrey C. Dobbins. Full text here. Appellate review is limited, almost by definition, to consideration of the factual record as established in the trial court. Adhering to this record review principle, appellate courts generally reject out of hand any effort to supplement the appellate record with evidence that was not considered by the court below.…
Continue ReadingIn Defense of Judicial Empathy
By Thomas B. Colby. Full text here. President Obama has repeatedly stated that he views a capacity for empathy as an essential attribute of a good judge. And conservatives have heaped mountains of scorn upon him for saying so—accusing him of expressing open contempt for the rule of law. This Article seeks to offer a sustained…
Continue ReadingWhich Law Governs During Armed Conflict? The Relationship Between International Humanitarian Law and Human Rights Law
By Oona A. Hathaway, Rebecca Crootof, Philip Levitz, Haley Nix, William Perdue, Chelsea Purvis, and Julia Spiegel. Full text here. Which law governs during armed conflict—human rights law or humanitarian law? This Article aims to answer that question. It draws on jurisprudence, state practice, and recent scholarship to describe three possible approaches to applying the two…
Continue ReadingAn Immigration Crisis in a Nation of Immigrants: Why Amending the Fourteenth Amendment Won’t Solve Our Problems
By Alberto R. Gonzales. Full text here. The concerns over another terrorist attack, a sluggish economic recovery, high unemployment rates, and state and local budget deficits have propelled immigration policy to the forefront of political debate in the United States. America’s current approach to immigration is an abject failure, undermining the rule of law and our…
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