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Taking Liberties: The Supreme Court’s New Hierarchy of Rights and Its Victims
Get PDFThe legitimacy of our unelected Supreme Court comes from the nature and structural limitations on judicial power. Courts do not make policy in the abstract. Rather, Article III requires federal judges to decide only real, live disputes, on the facts before them. Stare decisis then prevents the courts from changing legal rules willy-nilly. The big, important changes come instead through collective decision-making by our elected representatives. When courts do break from stare decisis, it is normally to expand protections for the politically disempowered. Those protections then make legislatures more representative and act as brakes on abuses of minorities by an empowered majority. And for similar representation-reinforcing reasons, courts do not systematically prefer one fundamental right over others but instead seek to rationalize and respect all those rights, and hence all rights-bearers. Together, these rules restrain the judicial function, prevent courts from usurping the powers of the people, and engender trust in the legal system to resolve our disputes peacefully. Except, that\u27s not how things actually work. The Supreme Court now routinely ignores all these limitations-most obviously, though certainly not exclusively, in cases that touch on religion. In doing so, the Court casts doubt on its own legitimacy and undermines the rule of law. With political violence on the rise, both in intensity and in frequency, that is exactly the oppositive of what we expect and need from our legal institutions
The Harlan Court: A Constitutional Alternate History
Get PDFWalter Dellinger shared the widespread perception that the Burger Court was characterized by “rootless activism” rather than principled constitutional adjudication, and for him this put in question the legitimacy even of decisions that reached outcomes he thought politically or morally desirable. To explain what was wrong with such decisions, he often imagined the Court as it might have been if Justice John Marshall Harlan, who died in 1971, had lived another decade, and inspired an era of constitutional decisions deeply rooted in constitutional tradition and characterized by careful adherence to legal method. This Essay seeks to explain Dellinger’s idea and its relevance today. The “Harlan Court” of Dellinger’s imagination would have reached its decisions through opinions that generally built on the legacy of the Warren Court by the logical development of precedent, a refusal to practice the Burger Court’s frequent tactic of obliquely undermining or underenforcing decisions a majority disapproved, and a commitment to persuading the reader’s judgment rather than imposing judgments by rhetorical fiat. Dellinger thought the characteristics of the “Harlan Court” he imagined were equally valuable to correctly identifying the most common error he saw in early twenty-first century constitutional law: the belief or assertion that difficult constitutional issues can be resolved through some method of decision that avoids the exercise of judgment by the decision-maker
Intellectual Property: Law & The Information Society: Cases & Materials
No full textThis open textbook is an introduction to intellectual property law, the set of private legal rights that allows individuals and corporations to control intangible creations and marks—from logos to novels to drug formulae—and the exceptions and limitations that define those rights. It focuses on the four forms of US federal intellectual property—trademark, copyright, patent and trade secrecy—but many of the ideas discussed here apply far beyond those legal areas and far beyond the law of the United States. The book is intended to be a textbook for the basic Intellectual Property class, but because it is an open, Creative Commons licensed coursebook, which can be freely edited, copied and shared, it is also suitable for undergraduate classes, or for a business, library studies, communications or other graduate school class.
The license means that teachers can take only the chapters or excerpts they need, which can be downloaded individually, and do so at no cost. Our goal is to make the book available without regard to students’ ability to pay: the free digital download can be found here. If a tangible copy is preferred, an 8”x10” paperback version is available for $37.35. We hope, though, that the flexibility of the digital downloads—of both individual chapters and the entire book—will be attractive. One of the goals of the Duke Center for the Study of the Public Domain is to offer high quality academic research about intellectual property to the citizens of the world, in accessible formats, at no cost.
Each chapter contains a clear introduction to the field, cases and secondary readings illustrating the structure and conflicts in the theory and doctrine of intellectual property, followed by questions to test the student’s understanding. Chapters are built around a set of problems or role-playing exercises involving the material. The problems range from a video of the Napster oral argument, with students asked to take the place of the lawyers, to exercises counseling clients about how search engines and trademarks interact, to discussions of the First Amendment’s application to Digital Rights Management or the Supreme Court’s rulings on gene patents. There is extensive discussion of the theory, history and political economy of intellectual property law. This is a subject that excites widespread and passionate differences of opinion which—at least so far—do not track conventional political leanings at all. That makes it unique and, for us, uniquely fascinating as an academic endeavor. It is also something—like the environment or civil rights—that everyone might want to learn about, whether or not they are lawyers.https://scholarship.law.duke.edu/faculty_books/1000/thumbnail.jp
The Children Are Our Future (Not Our Future Criminals): Protecting South Carolina’s Youngest Citizens by Setting a Minimum Age of Juvenile Court Jurisdiction
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Rachel Augustine Potter & Bridget Dooling, Regulatory Body Shops
No full textPanel 2: 10:30 am – 11:45 am Article: Rachel Augustine Potter & Bridget Dooling, Regulatory Body Shops Panel: Bridget Dooling, Eloise Pasachoff, and Stuart Benjamin (moderator
The Foundations of American Law: A Companion to the 1L Year
No full textThe main objective of this text is to introduce the reader to many of the background assumptions about American law and legal argument that inform how lawyers and judges read decisions and other legal documents, and how they think about legal problems. Lawyers presuppose and use these ideas and intellectual tools without discussing them, while law professors (and the materials they assign) often leave it to students to figure out the assumptions for themselves. The book discusses the relationship between logic and historical experience in the construction of the law, the ways pre-Revolutionary English common law shaped American law, and the 19th and early 20th century developments that led to contemporary American law.
The reader will also come away with a clear sense of the ways in which lawyers use lawtalk (the characteristic ways lawyers imagine, analyze, and address problems) to make sense of events and issues that require legal attention or decision. While there are a number of books that introduce readers to American legal thought, none are as introductory, accessible, or broad-covering as The Foundations of American Law: A Companion to the 1L Year. This book is primarily intended for first year law students, but will also be interesting to people considering law school or those who are simply interested in how lawyers and judges think and make decisions.https://scholarship.law.duke.edu/faculty_books/1025/thumbnail.jp
Cryptic Patent Reform Through the Inflation Reduction Act
No full textIf a statute substantially changes the way patents work in an industry where patents are central, but says almost nothing about patents, is it patent reform? We argue the answer is yes — and it’s not a hypothetical question. The Inflation Reduction Act (“IRA”) does not address patents, but its drug pricing provisions are likely to prompt major changes in how patents work in the pharmaceutical industry. For many years scholars have decried industry’s ever-evolving strategies that use combinations of patents to block competition for as long as possible, widely known as “evergreening,” but legislators have not been receptive to calls for reform. The IRA may just succeed in changing that pattern, at least to some extent, by imposing drug pricing reforms that alter the incentives for evergreening in the first place. In this Article, we lay out the case that the IRA contains implicit reforms to the pharmaceutical patent system. Its details are not straightforward, nor is its implementation, but its effects could nevertheless be major. Drug pa-tent reform, a longtime priority for activists and scholars, may in fact have already happened
