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Learning to Live with Judicial Partisanship: A Response to Cassandra Burke Robertson

Written By: Bruce A. Green and Rebecca Roiphe

Abstract Response to Cassandra Burke Robertson, Judicial Impartiality in a Partisan Era In her article, Judicial Impartiality in a Partisan Era, Professor Cassandra Burke Robertson suggests that even if judges make a conscious effort not to decide cases based on partisan political identification, they may unconsciously bring their partisan views to bear. Doing so may […]

Etched in Stone: Historic Preservation Law and Confederate Monuments

Jess R. Phelps and Jessica Owley

Abstract This Article examines the current controversy regarding Confederate monuments. While many have focused on the removal of these commemorative objects, the legal framework regarding their protection has not been fully explored. This Article provides an in-depth understanding of the application of historic preservation laws to monument removal efforts and examines the impact of these […]

A View of Copyright from the Digital Ground

Andres Sawicki

Abstract Response to Cathay Y. N. Smith, Beware the Slender Man: Intellectual Property and Internet Folklore Professor Cathay Smith’s Beware the Slender Man: Intellectual Property and Internet Folklore seems at first to fit comfortably within the creativity-without-IP literature, which shows that creative practices can thrive outside of the institutions built up around intellectual property law. […]

Regulation and the Marginalist Revolution

Herbert Hovenkamp

Abstract The marginalist revolution in economics became the foundation for the modern regulatory State with its “mixed” economy. For the classical political economists, value was a function of past averages. Marginalism substituted forward looking theories based on expectations about firm and market performance. Marginalism swept through university economics, and by 1920 or so virtually every […]

Staking the Boundaries of Software Copyrights in the Shadow of Patents

Pamela Samuelson

Abstract Ever since the venerable Supreme Court opinion in Baker v. Selden, courts and commentators have overwhelmingly endorsed the rule that copyright and utility patent protections for intellectual creations are mutually exclusive. That is, an intellectual creation may be eligible for copyright or utility patent protection, but not both. Original works of authorship are channeled […]

The Skeleton in the Hard Drive: Encryption and the Fifth Amendment

Written by: David W. Opderbeck

Abstract In Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., the Supreme Court addressed an oft-discussed jurisprudential disconnect between itself and the U.S. Court of Appeals for the Federal Circuit: whether patent claim construction was “legal” or “factual” in nature, and how much deference is due to district court decision-making in this area. This Article closely […]