Monthly Archives: November, 2017

Buccafusco and Fromer, ‘Fashion’s Function in Intellectual Property Law’

Abstract Clothing designs can be beautiful. But they are also functional. Fashion’s dual nature sits uneasily in intellectual property law, and its treatment by copyright, trademark, and design patent laws has often been perplexing. Much of this difficulty arises from an unclear understanding of the nature of functionality in fashion design. This Article proposes a […]

Weaver and Kysar, ‘Courting Disaster: Climate Change and the Adjudication of Catastrophe’

Abstract Do we court disaster by stretching the bounds of judicial authority to address problems of massive scale and complexity? Or does disaster lie in refusing to engage the jurisgenerative potential of courts in a domain of such vast significance? This Article examines global climate change adjudication to shed light on these questions, focusing particularly […]

David Grinlinton, ‘The Continuing Relevance of Common Law Property Rights and Remedies in Addressing Environmental Challenge’

Abstract Environmental protection and natural resources management is today dominated by legislative measures and administrative procedures. Enforcement and penalty regimes for environmental damage and the management of natural resources are all highly regulated. Nevertheless, there remains the oft-neglected realm of common law rules and procedures available to individuals and public interest groups, and indeed government, […]

Robert Sitkoff, ‘The rise of trust decanting in the United States’

Abstract In a trust decanting, a trustee who under the terms of a trust (the first trust) has a discretionary power over distribution uses that power to distribute the trust property to a new trust (the second trust) with updated provisions, leaving behind the sediment of the first trust’s stale provisions. This article canvasses the […]

Larissa Katz, ‘Philosophy of Property Law, Three Ways’

Abstract Is property in some way basic to our moral lives? Many have thought so. For Aristotle, moral virtues, like liberality, presuppose some idea of property, for one can display liberality only with respect to what is one’s own. For Kant, property is a requirement of freedom in the external world. For Locke, property, allocated […]

Michael Madison, ‘The Football as Intellectual Property Object’

Abstract  The histories of technology and culture are filled with innovations that emerged and took root by being shared widely, only to be succeeded by eras of growth framed by intellectual property. The Internet is a modern example. The football, also known as the pelota, ballon, bola, balón, and soccer ball, is another, older, and […]

Swennen and Croce, ‘Family (Law) Assemblages: New Modes of Being (Legal)’

Abstract This article advances a new model for family law to address emerging non-conventional family formations, particularly between parents and children. We contend that the conventional model of kinship categories as static, predefined statuses should be replaced with a model whereby the state accommodates kinship categories the law users themselves produce within their fluid and […]

Ilanah Fhima, ‘Fairness in Copyright Law: An Anglo-American Comparison’

Abstract Fairness stands at the crossroads of copyright law. The concept of fairness – which seeks to balance the interests of copyright owners and users as well as the needs of the public in receiving information – is present in the copyright exceptions in both the US and the UK. The US and UK adopt […]

Donald Drakeman, ‘Consequentialism and the limits of interpretation: do the ends justify the meanings?’

Abstract A recent consequentialist resurgence in transnational legal scholarship urges judges in cases involving authoritative texts to make decisions based on which outcomes will be best for society. Some consequentialist scholars assert that judges should openly disclose these reasons, while others advocate replacing them with any plausible argument employing the traditional language of interpretation. This […]

Kar and Radin, ‘Pseudo-Contract and Shared Meaning Analysis’

Abstract Over the last several decades, courts have struggled with when to enforce boilerplate text as contract. An example is the copious digital text that consumers receive links to before clicking ‘I agree’ to a purchase. Everyone knows that recipients rarely read this boilerplate text and would not understand it if they did. Still, given […]