Note: The Sartorial Dilemma of Knockoffs: Protecting Moral Rights without Disturbing the Fashion Dynamic
By Margaret E. Wade. Full text here. As soon as fashion models hit the runway, copycat designers snap photos and quickly replicate the original designs, flooding the market with nearly identical, discount versions of the original garments. In response to this phenomenon of fashion piracy, members of the fashion design community have been advocating for a…
Continue ReadingNote: Who Are They to Judge?: The Constitutionality of Delegations by Courts to Probation Officers
By Mark Thomson. Full text here. In order to promote judicial economy, Article III courts routinely delegate decisionmaking authority to probation officers. Probationers increasingly challenge those delegations as violating the Constitution’s command that only Article III judges shall exercise “the Judicial power.” Courts apply either of two standards when evaluating the constitutionality of judicial delegations to…
Continue ReadingPublic Choice and International Law Compliance: The Executive Branch Is a "They," Not an "It"
By Neomi Rao. Full text here. This Article presents a public choice analysis of how the executive branch in the United States determines questions of compliance with international law. In contrast to traditional theories that treat the state as a unitary entity, the public choice approach examines the different interests and incentives of the many executive…
Continue ReadingBeyond Crime and Commitment: Justifying Liberty Deprivations of the Dangerous and Responsible
By Kimberly Kessler Ferzan. Full text here. The traditional approaches to dangerous persons are crime and commitment. The criminal law punishes responsible actors, and the civil law confines the mentally ill. These approaches leave a gap: the state cannot substantially restrict the liberty of responsible actors until they have committed a crime. In response to this…
Continue ReadingRights for Sale
By Tsilly Dagan & Talia Fisher. Full text here. Individuals enjoy a host of rights in relation to the government, including voting rights, the right against self-incrimination, the right to public education, pollution quotas, as well as various subsidies and tax attributes. Should individuals be able to sell these public entitlements to others? Markets for voting…
Continue ReadingTort Law and the American Economy
By Frank B. Cross. Full text here. Claims that tort law is hampering the American economy are common and have produced various forms of tort reform legislation. Yet there is very little economic research on the consequences of existing tort law doctrines. Theoretically, at least, tort law can be economically beneficial. Two state-specific measures have been…
Continue ReadingEssay: Substantive Equality: A Perspective
By Catharine A. MacKinnon. Full text here.
Continue ReadingUsury Law, Payday Loans, and Statutory Sleight of Hand: Salience Distortion in American Credit Pricing Limits
By Christopher L. Peterson. Full text here. In the Western intellectual tradition usury law has historically been the foremost bulwark shielding consumers from harsh credit practices. In the past, the United States commitment to usury law has been deep and consistent. However, the recent rapid growth of the “payday” loan industry belies this longstanding American tradition.…
Continue ReadingAmending the Exceptions Clause
By Joseph Blocher. Full text here. Jurisdiction stripping is the new constitutional amendment, and the Exceptions Clause is the new Article V. But despite legal academia’s long-running obsessions with the meaning of constitutional amendment and the limits (if any) on Congress’s power to control federal jurisdiction, we still lack even a basic understanding of how these…
Continue ReadingThe Legacy of Bryan v. Itasca County: How an Erroneous $147 County Tax Notice Helped Bring Tribes $200 Billion in Indian Gaming Revenue
By Kevin K. Washburn. Full text here. The Supreme Court’s landmark 1976 decision in Bryan v. Itasca County is known within Indian law academia for the story Professors Philip Frickey and William Eskridge tell about the case: it reflects the dynamic and pragmatic interpretation of a termination-era statute to limit termination’s harmful legacy during a more…
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