When the United States Supreme Court decided Bush v. Gore, ending the controversial recount of presidential votes in Florida and handing the contested 2000 election to George W. Bush over Al Gore, some election law scholars told a “lemonade from lemons” story: It is true there was much to criticize about the Supreme Court's decision…
The United States Patent and Trademark Office is tasked with the job of reading patent applications and determining which ones qualify for patent protection. It is a herculean task, and the Patent Office pursues it subject to enormous informational and budgetary constraints. Nonetheless, under current law, courts are bound to defer to the Patent Office's…
The conventional wisdom amongst scholars and advocates of employment discrimination law is that the success of Title VII is significantly hampered by the enduring doctrine of employment at will. As long as employers have broad discretion to fire employees for any reason, no reason, or a bad reason, employers can easily get away with terminating…
Ought implies can. This Article investigates whether the central moral directives of liberalism are ones citizens can--as a matter of human cognition--be expected to honor. Liberalism obliges the state to disclaim a moral orthodoxy and instead premise legal obligation on secular grounds accessible to persons of diverse cultural persuasions. Studies of the phenomenon of cultural…
At first glance, judicial anticipation of public outrage and its effects seems incompatible with judicial independence. Nonetheless, judges might be affected by the prospect of outrage for both consequentialist and epistemic reasons. If a judicial ruling would undermine the cause that it is meant to promote or impose serious social harms, judges might have reason…
In at least some hard cases, the Justices of the United States Supreme Court almost certainly moderate their decisions--or avoid deciding altogether--so as not to provoke the public. Cass Sunstein's characteristically insightful and engaging article is an attempt to justify this practice, and in the process, to define its proper limits. In this, Sunstein follows…
In both legal practice and legal scholarship, it is sometimes best to proceed without attempting to answer the foundational questions. Originalists can inquire into the original public meaning of the Equal Protection Clause without defending originalism. Economic analysts of law can ask how to promote efficiency without defending the view that the law should aim…
Book Review of Symeon C. Symeonides' The American Choice-of-Law Revolution: Past, Present and Future (2006).
Imagine a computer chip composed of millions of transistors and hundredsor even thousands of individually patented inventions. Could just one of thosepatented components ever account for the entire economic value of the chip?Could just one such invention ever account for the entire value of a totalpersonal computer system— monitor, keyboard, mouse, printer, software, andall—sold along…
