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Blaine in the Joints: The History of Blaine Amendments and Modern Supreme Court Religious Liberty Doctrine in Education
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Restating the Law in the Shadow of Codes: The ALI in Its Formative Era
Get PDFThis chapter recounts the American Law Institute’s (ALI’s) history in its formative era (1923–1945), drawing from archival sources to deepen existing accounts of the ALI’s self-definition as an ongoing institution. The history is more complex than it appears in prior accounts because institutional necessities—including funding—as well as multiple contingencies shaped both the ALI and its work. Likewise, the ALI’s signal work in this period, the Restatement, departed in significant ways from its original plan. Generating the revenues requisite to its ongoing existence required that the ALI partner with commercial publishers and, at their urging, separately publish Annotations for each Restatement volume linked to pre-Restatement cases in many states. Grants from the Carnegie Corporation of New York (overall totaling around $43 million in today’s dollars) funded the work requisite to the Restatement itself; funding the separate Annotations required support from more varied sources by the 1930s, including New Deal relief programs that could support indigent lawyers. Substantively, if the Restatement represented a rejection of comprehensive legislative codification as a strategy to rationalize and clarify private law, the end of this era is paradoxical because the ALI emerged as a prominent champion of codification via the Uniform Commercial Code (UCC). Going forward, in addition to a solid financial footing, the ALI’s work required “matters of first importance” to sustain its members’ engagement and justify itself as an ongoing institution, exemplified by the UCC project
There\u27s No Such Thing as Independent Creation, and It\u27s a Good Thing, Too
Get PDFIndependent creation is the foundation of U.S. copyright law. A work is only original and, thus, copyrightable to the extent that it is independently created by its author and not copied from another source. And a work can be deemed infringing only if it is not independently created. Moreover, independent creation provides the grounding for all major theoretical justifications for copyright law. Unfortunately, the doctrine cannot bear the substantial weight that has been foisted upon it. This Article argues that copyright law’s independent creation doctrine rests on a set of discarded psychological assumptions about memory, copying, and creativity. When those assumptions are replaced with contemporary accounts of how human memory influences the creative process, the independent creation doctrine becomes empirically meaningless. Independent creation, as copyright law understands it, does not exist.
Because the independent creation doctrine lacks any meaningful legitimacy, it has become a site of legal privilege and bias. Copyright law’s treatment of independent creation has favored some creators’ claims at the expense of others, privileging plaintiffs, older creators, and wealthier creators. These biases distort the law’s attempt to optimally regulate cultural production. This Article offers several proposals for addressing these concerns, from rebalancing legal doctrines to a more radical solution: the wholesale jettisoning of independent creation. Copyright law does not need the independent creation doctrine, and it would be better off without it
Dobbs and Democracy
No full textMelissa Murray, the Frederick I. and Grace Stokes Professor of Law at New York University School of Law, gives the annual Brainerd Currie Memorial Lecture. Murray, who is also the faculty director for the Birnbaum Women\u27s Leadership Network at NYU Law, is a leading expert in family law, constitutional law, and reproductive rights and justice. Her award-winning research focuses on the legal regulation of intimate life and encompasses such topics as the regulation of sex and sexuality, marriage and its alternatives, the marriage equality debate, the legal recognition of caregiving, and reproductive rights and justice. Her publications have appeared in the California Law Review, Columbia Law Review, Harvard Law Review, Michigan Law Review, Pennsylvania Law Review, Virginia Law Review, and Yale Law Journal, among others. She is an author of Cases on Reproductive Rights and Justice, the first casebook to cover the field of reproductive rights and justice, and a co-editor of Reproductive Rights and Justice Stories. Prior to joining the NYU faculty, Murray was on the faculty of the University of California, Berkeley, School of Law, where she was the recipient of the Rutter Award for Teaching Distinction. From March 2016 to June 2017, she served as interim dean of the Berkeley Law
Keynote and Lunch
No full textCass Sunstein (Harvard Law School). Introduced by Stuart Benjamin (Duke Law)
Fact Stripping
Get PDFAppellate fact review in constitutional litigation has never been more important. Whether someone’s rights were violated often turns on what happened—matters of fact—and not solely on matters of law. That makes it all the more striking that the U.S. Supreme Court has increasingly reversed rulings of lower courts based on factual disagreement, given that such factfinding is typically entitled to significant appellate deference. Scholars and would-be reformers have noted many problems with appellate factfinding, but have tended to assume that the Court itself has final say on the applicable standard of review.
Yet as a matter of constitutional law, the Supreme Court is not the factfinder in chief. Article III gives Congress power to define the Court’s “appellate jurisdiction, both as to Law and Fact” and Article I gives Congress power to “constitute” the inferior federal courts. Congress can, by statute, require Supreme Court Justices and appellate judges to view the factual record with some level of deference. We call this approach “fact stripping.” It is different than the more familiar jurisdiction stripping—the much-discussed power of Congress to take away the federal courts’ power to hear certain kinds of cases—and raises fewer constitutional or legitimacy concerns. And if done properly, it can instead protect rights by shifting power from appellate judges to trial judges and jurors better able to find the facts.
Our focus is on use of fact stripping regarding constitutional claims in lower federal courts, but Congress has already regulated the review of constitutional facts—with the Supreme Court’s approval—in other important areas of law. For example, in federal habeas corpus, Congress has mandated more deference by restricting appellate factual review, while in some areas of administrative adjudication, such as immigration, it has required less factual deference (that is, more review) than the constitutional floor would require.
How Congress should exercise this constitutional power is primarily a question of how best to allocate power within the judiciary, and thus raises questions of institutional competence, including the role of appellate courts in law development and establishing uniformity, as well as the importance of robust factfinding in constitutional cases. Congress, however, need not agree with where the Supreme Court has drawn those lines, and might want to re-allocate factfinding power to the trial courts. Our goal here is not to prescribe a particular form of fact-stripping legislation, but to suggest that congressional regulation of appellate constitutional factfinding is one of many possible responses to a Supreme Court that has increasingly arrogated factfinding power to itself
