Recent uclalaw items

Scope

Fri, 31 Jul 2026 00:00:00 +0000

Intellectual property (IP) law doctrines fall into three basic categories: validity, infringement and defenses. Virtually every significant legal doctrine in IP is either about whether the plaintiff has a valid IP right that the law will recognize – validity – about whether what the defendant did violates that right – infringement – or about whether the defendant is somehow privileged to violate that right-defenses.

IP regimes tend to enforce a more or less strict separation between these three legal doctrines. They apply different burdens of proof and persuasion to infringement and validity. In many cases they ask different actors to decide one doctrine but not the other. The U.S. Patent and Trademark Office, for example, decides questions of patent and trademark validity but not questions of infringement. Even in court, resolution of one issue is often allocated to a judge while the jury decides a different issue. And even where none of that is true, the nature of IP...

2016 Trademark Year in Review

Fri, 31 Jul 2026 00:00:00 +0000

This brief essay reviews some of the most significant developments in trademark law during the past year. In most cases we have interpreted “year” fairly liberally, particularly to highlight some longer-term trends. We focus on six areas: (1) the constitutionality of § 2(a) of the Lanham Act; (2) the Fourth Circuit’s Belmora decision and the availability of § 43(a) claims when the plaintiff has not used a mark in the United States; (3) the effect of B&B Hardware; (4) injunctive relief and the presumption of irreparable harm; (5) nominative fair use; and (6) initial interest confusion.

What's In, and What's Out: How IP's Boundary Rules Shape Innovation

Fri, 31 Jul 2026 00:00:00 +0000

Intellectual property law sorts subject matter into a variety of different regimes, each with different terms of protection and different rules of protectability, infringement, and defenses. For that sorting to be effective, IP needs principles to distinguish the subject matter of each system. This paper focuses on one of the most important aspects of border-drawing that our IP system undertakes — identifying “useful” subject matter.

This aspect is critical because our IP system gives utility patent law pride of place and draws the boundaries of the other doctrines in large part to respect utility patent’s supremacy. Yet IP law’s sense of utility patent law’s domain is poorly theorized, and courts’ understanding of the boundaries of utility patent is mostly reductive and intuitive. While it’s clear that claimed inventions must be useful, courts inconsistently enforce a technological understanding of utility. That view of utility is normative rather than empirical. And...

Reassessing the New Commonwealth Model of Constitutionalism

Thu, 30 Jul 2026 00:00:00 +0000

This article presents a general reassessment of the success and distinctiveness of “the new Commonwealth model of constitutionalism” as it is operating in Canada, New Zealand and the United Kingdom. In a previous article, published in 2001, I identified, labeled, and presented the case for this new, intermediate model of constitutionalism that straddles the pre-existing dichotomy of parliamentary sovereignty and constitutional or judicial supremacy. Although as an attempted contribution to general constitutonal theory, the case that I presented was primarily a normative one, parts of it depended on or assumed certain things about how the model would or does operate in practice. These areas of practice are the major focus of this article.

The article first reviews the essential characteristics of the new model and then refines and supplements the basic case for it. It argues that the new model is normatively appealing to the extent it effectively protects rights while...

Making Immigration Law

Thu, 30 Jul 2026 00:00:00 +0000

This review essay’s focus is The President and Immigration Law by Adam Cox and Cristina Rodríguez. The book makes a major contribution to immigration law and to U.S. administrative and public law more generally by connecting these fields. In particular, The President and Immigration Law offers a nuanced and persuasive historical account of the rise of presidential power over immigration. The book also advances a thought-provoking analysis of the current relationship between Congress and the President as “co-principals” in making immigration law. When Cox and Rodríguez explore the history of presidential immigration power, they examine both the domestic and the international. Especially in the domestic domain, their claim seems exaggerated that they counter a “conventional wisdom” of congressional primacy in the making of immigration law. In fact, much of their analysis of the domestic aspects of presidential immigration power will be familiar to readers who know immigration law....

Judicial Review in Immigration Cases after Aadc: Lessons from Civil Procedure

Thu, 30 Jul 2026 00:00:00 +0000

In 1996, Congress substantially revised the statute that governs judicial review of immigration decisions by administrative agencies. This article analyzes the provisions that govern the timing of judicial review, especially Immigration and Nationality Act section 242(b)(9). This provision seems to defer judicial review of all issues until administrative proceedings are over. For example, Eleventh Circuit has held that a noncitizen detained during removal proceedings may not go to court to challenge his detention until after a removal order issues, possibly years later. This article explains why this reading of (b)(9) is wrong. The only sensible reading of (b)(9) is a narrow one that lets courts hear matters before a final removal order, if those matters are significant and independent of a decision to remove a noncitizen from the United States. Detention pending removal proceedings is one example of such a matter.

I also use timing consolidation under (b)(9) to explore...

Anti-Oligarchy, Anti-Authoritarianism, The Constitution, and the Court

Thu, 30 Jul 2026 00:00:00 +0000

In the 1930s, like today, our nation faced a crisis of oligarchy: too much wealth and political power concentrated in too few hands. Like today's liberals and progressives, the New Dealers aimed to enact social and economic reforms that would ensure a much broader distribution of wealth and power, but they faced a hostile, right-wing Supreme Court that would certainly thwart such reforms. Thus, like liberals and progressives today, New Dealers proposed various measures aimed at curbing judicial review to safeguard the legislative reforms they saw as essential to making democracy work. Yet at the same time they hoped to preserve the Court's power-which they hoped the Court would exercise-to defend civil liberties, protect vulnerable minorities against state violence, and safeguard the rule of law in a moment of rising authoritarianism. This Article argues that this New Deal moment contains significant lessons for liberals and progressives today, who are...

Character is Experience

Thu, 30 Jul 2026 00:00:00 +0000

This extremely short essay argues that it is not conceptually possible to separate a person's character from her experiences in the world. It was published by the Brookings Institution's Center on Children and Families as part of a series of essays on Character & Opportunity. (It is a distillation of a piece of the argument of the book Bottlenecks: A New Theory of Equal Opportunity.)

From Subgroups to Bottlenecks: New Directions for the Empirical Study of Intergenerational Mobility — A Comment on Timothy Smeeding, 'Multiple Barriers to Economic Opportunity in the United States'

Thu, 30 Jul 2026 00:00:00 +0000

This short response piece argues that the empirical study of intergenerational mobility is reaching a new stage. Instead of merely estimating overall, aggregate mobility, new work in the field focuses specifically on particular bottlenecks through which people must pass in order to reach better economic outcomes. This paper then raises some questions that this important new work inspires, about which type of mobility we ought to be concerned about -- mobility at the bottom, middle, or the top; what is driving the rising levels of parental financial investment in children at the top; and the limits of income as a measure of what we ought to care about if we care about mobility.

Confusion Isn’t Everything

Thu, 30 Jul 2026 00:00:00 +0000

The typical shorthand justification for trademark rights centers on avoiding consumer confusion. But in truth, this encapsulation mistakes a method for a purpose: confusion merely serves as an indicator of the underlying problems that trademark law seeks to prevent. Other areas of law accept confusion or mistake of all kinds, intervening only when those errors lead to more serious harms. Likewise, every theory of trademark rights considers confusion troubling solely because it threatens more fundamental values such as fair competition or informative communication. In other words, when it comes to the deep purposes of trademark law, confusion isn’t everything.

Yet trademark law’s structure now encourages courts to act otherwise, as if confusion itself were the ultimate evil with which trademark law is concerned and as if its optimal level were zero. Trademark adjudication increasingly fetishized confusion over the last half century while simultaneously expanding its scope...

Institutional dimensions of remote sensing capacity for tropical forest monitoring

Thu, 30 Jul 2026 00:00:00 +0000

Remote sensing technologies are central to tropical forest monitoring, yet the institutional mechanisms constraining their adoption and operationalization within responsible organizations remain poorly understood. Drawing on thirty-eight semi-structured interviews with actors across the remote sensing value chain in Latin America, Africa, and Southeast Asia, we examine how institutional arrangements shape remote sensing capacity within organizations directly engaged in tropical forest monitoring and management. We distinguish between operational frictions, the practical obstacles practitioners encounter in day-to-day remote sensing work, and the institutional conditions that generate and sustain them, organized across four capacity dimensions: dependable data access, technical expertise, organizational support and mandate clarity, and equitable user-provider relations. Our findings show that capacity constraints are not primarily technical but institutional: external data ownership...

Bottlenecks: A New Theory of Equal Opportunity - (Preface to the Chinese Edition)

Thu, 30 Jul 2026 00:00:00 +0000

This preface to the Chinese edition of Bottlenecks: A New Theory of Equal Opportunity briefly introduces the concept of a bottleneck and the machinery of the theory, and discusses a number of applications particularly relevant to Chinese society, including questions about educational testing, the household registration system, and the nation's political elite.

Fall 2024 Update for Immigration and Citizenship: Process and Policy (9th Edition)

Thu, 30 Jul 2026 00:00:00 +0000

This Update includes materials on major developments since the Ninth Edition of Immigration and Citizenship: Process and Policy went to press in late 2020. This Update is cumulative, including any material in the 2021, 2022, and 2023 Updates that remains current.We have limited ourselves to developments that may affect teaching from the Ninth Edition, and not included the sort of detailed updates that might be more appropriate for a treatise or practitioner’s guide. Edited cases are longer than they might be as incorporated into the next edition of the casebook.The materials in this Update fall into two broad categories (though there is overlap between them). One consists of summaries of recent developments, to put the casebook materials in up-to-date context. Instructors may wish to assign materials in this category, or alternatively just use them to provide updates more informally in lecture or discussion. The other category consists of new principal cases and longer...

Immigration Outside the Law

Thu, 30 Jul 2026 00:00:00 +0000

In current debates about undocumented or illegal immigration, three themes have emerged as central: the meaning of unlawful presence, the role of states and cities, and the integration of immigrants. This Essay's starting premise is that a reappraisal of these themes is essential to a conceptual roadmap of this difficult area of law and policy.

This Essay argues that it is too narrow and too shallow to examine any of the three themes in isolation, as is typically done. Rather, each theme pairs up with another to reveal and elucidate a more fundamental question. The meaning of unlawful presence is connected to the role of states and cities; together they illuminate enforcement authority in immigration law. The role of states and cities combines with the integration of immigrants to show how communities that include immigrants are built. The meaning of unlawful presence and the integration of immigrants jointly shed light on how we think about the dimension of time in immigration...

Arguing About Sanctuary

Thu, 30 Jul 2026 00:00:00 +0000

“Sanctuary” has come to mean many things. This article suggests a way of understanding the arguments for and against sanctuary. I start by suggesting a working definition of the term. It includes not only the more obvious dimension of insulation from enforcement but also the related dimension of promoting immigrant integration. In turn, these dimensions suggest further nuances. I then identify and analyze five categories of arguments for sanctuary measures and the responses that they may prompt. The five categories are as follows. The first invokes structural limits on federal authority, based largely on the Tenth Amendment and the Spending Clause of the U.S. Constitution. The second invokes constitutional protection of state and local decisionmaking prerogatives. This category, like the first, relies on the Tenth Amendment, but it has a different rhetorical and political resonance. The third category relies on substantive limits on arrests and detention, such as the Fourth Amendment....

The President's Dilemma: Executive Authority, Enforcement, and the Rule of Law in Immigration Law

Thu, 30 Jul 2026 00:00:00 +0000

In 2012, President Obama announced the Deferred Action for Childhood Arrivals (DACA) program, and in 2014, he announced an expansion of DACA as well as a new program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). Both programs would allow some noncitizens who may be subject to deportation (technically, “removal”) from the United States to apply for multi-year temporary reprieves. These programs have faced a combination of policy and legal challenges. This article, based on my 2015 Foulston Siefkin Lecture, does not address all of the issues posed by DACA and DAPA, but it elaborates on two points that appear very briefly in my book, Immigration Outside the Law (Oxford 2014). First, whether DACA and DAPA are consistent with federal immigration legislation is a question that can be persuasively answered only with reference to the operation of the entire federal immigration scheme, which is one of selective admissions, selective enforcement,...

Trademark Year in Review

Thu, 30 Jul 2026 00:00:00 +0000

This essay was written for two continuing legal education events in late 2014 and early 2015. It reviews developments in trademark law in 2013 and 2014, particularly with an eye toward developing trends.

Systems of Intellectual Capital

Thu, 30 Jul 2026 00:00:00 +0000

This essay reviews Orly Lobel's article The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property. It commends Professor Lobel for outlining the contours of the “new” field of human capital law, and for emphasizing the potential consequences of the growing enclosure of cognitive capacities in contemporary markets. From this starting point the essay makes two modest suggestions for researchers. First, it suggests that those building on Lobel’s work consider more contextual description and evaluation of human and intellectual capital production systems. Doing so would avoid overly abstract, macro-level analysis that is often divorced from reality and from the critical nuances that shape actors’ individual and collective motivations and behavior. It would also avoid excessive reliance on overly specific, micro-level analysis, which can be anecdotal. Second, the essay emphasizes the importance of establishing normative baselines prior to evaluating or prescribing...

Federalism, International Human Rights, and Immigration Exceptionalism

Thu, 30 Jul 2026 00:00:00 +0000

This essay addresses three related topics. The first is immigration federalism: the role of states and localities in immigration-related matters. While the prevailing view favors federal exclusivity, the state and local role has expanded in recent years. This expansion draws support from the expansion of state activity in foreign affairs. The argument is that if federal exclusivity in foreign affairs is no longer justified, then federal exclusivity in immigration-related matters also should end. I find this argument unconvincing and explain why. Second, I caution against overreliance on international human rights law in immigration matters. International human rights norms are sometimes poorly suited to express fundamental and distinctively American concepts of immigration and citizenship in the United States. Also, the focus on international human rights accentuates the tendency to focus on the interests and rights of noncitizens, without also analyzing how citizens are also...

Choosing Immigrants, Making Citizens

Thu, 30 Jul 2026 00:00:00 +0000

This piece comments on The Second Order Structure of Immigration Law by Adam Cox and Eric Posner, which appears with it in volume 59 of the Stanford Law Review. According to Second Order Structure, immigration law questions may concern "first order" or "second order" structure. First-order structure has three dimensions: the number of immigrants, their type, and their terms of admission. The central second-order challenge is how to screen in only applicants who satisfy first-order criteria. This requires deciding whether to screen immigrants on the basis of criteria known before arrival (ex ante), or after they have lived in the host country for a period of time (ex post).

To evaluate the analysis in Second Order Structure, I explain that immigration law affects a wide range of people from the undocumented to lawful nonimmigrants to permanent residents to naturalized citizens, who move over time from one status to another. It follows that immigration law poses a basic...

Immigration Law and Federal Court Jurisdiction Through the Lens of Habeas Corpus

Thu, 30 Jul 2026 00:00:00 +0000

The focus of this article is habeas corpus in immigration cases from 1996 to 2005, when it was a principal vehicle for federal court jurisdiction to review removal orders. Although the REAL ID Act of 2005 seemed to eliminate habeas review of removal orders in favor of petitions for review in the federal courts of appeals, the decade of experience with immigration habeas is not just a matter of historical interest. It holds important lessons for federal courts as they define their jurisdiction in immigration cases after the REAL ID Act.

This decade of immigration habeas is best analyzed in terms of four models of habeas corpus. Two are direct review models that view habeas as a layer of appeal from an immigration judge's removal order, as a surrogate for either the courts of appeals or the Board of Immigration Appeals. Two other models treat habeas as collateral review, analogizing either to habeas in criminal cases or to a pre-1996 immigration statute that allowed limited...

Children and Parents, Innocence and Guilt

Thu, 30 Jul 2026 00:00:00 +0000

This essay responds to Professor Stephen Lee’s review of my book, Immigration Outside the Law (Oxford Univ. Press 2014). See Stephen Lee, “Growing Up Outside the Law,” 128 Harv. L. Rev. 1405 (2015). Professor Lee first questions my core reliance on Plyler v. Doe — a case about children — in a book about unauthorized migrants in general. He then explains a “membership as brokering” approach to understanding the claims of some unauthorized migrants to be treated as Americans in waiting.

My response first agrees with Professor Lee that the differences between unauthorized children and adults are typically exaggerated. Immigration Outside the Law unsettles any such dichotomy by delving much deeper than Plyler and explaining how unauthorized migration to the United States is a story of de facto government policy that tolerates and acquiesces in unauthorized migration.

Second, Professor Lee’s analysis of membership...

The New Migration Law: Migrants, Refugees, and Citizens in an Anxious Age

Thu, 30 Jul 2026 00:00:00 +0000

Once every generation or so, entire fields of law require a full reset. We need to rethink basic premises, ask new questions, and even recast the role of law itself. This moment has come for the law governing migration. Seasoned observers of immigration and refugee law have developed answers to core questions that emerged a generation ago. But their answers often fail to engage coherently with the daunting challenges posed by migration in this anxious age. To try to do better, I undertake four inquiries. In isolation they may seem familiar, but I combine them here in new ways to find a path forward. Part I starts by analyzing how U.S. immigration law and immigrants’ rights have come to be argued in civil rights terms. This trend reflects a nation-centered perspective on migration and justice that has tried—though often failed—to expand legal protections for noncitizens, including noncitizens without lawful status. But viewing immigration law through a civil rights lens has limits...

We Asked for Workers, But Families Came: Time, Law, and the Family in Immigration and Citizenship

Thu, 30 Jul 2026 00:00:00 +0000

This article is based on two key ideas. First, the family adds the dimension of time to immigration and citizenship law. It does so, for example, through jus soli citizenship for the children of immigrants and discretionary relief from removal, which combine to allow noncitizens over time to establish family-based ties to the United States that immigration law then recognizes. But establishing that the family matters in immigration and citizenship - and therefore that time matters - only begins the inquiry. The next question is how time matters. The prevailing sense of time in current law is largely retrospective, as a way of recognizing ties in the United States. It is important, I argue, also to think of time prospectively. Doing so would prompt a subtle but significant shift occurs in the role of the family, away from mere recognition and toward a more instrumental view of the family in immigration and citizenship. The family would become not only an object of integration,...

Human Rights as International Constitutional Rights

Wed, 29 Jul 2026 00:00:00 +0000

The Universal Declaration was, of course, the first of the three global international human rights instruments that have collectively come to be known as the International Bill of Rights. Very often, however, this latter term appears within quotation marks or is prefaced by the qualifying phrase, "so-called," signaling that there are serious, although mostly unexplored, questions about the validity of the implied comparison with domestic bills of rights. In this article, I treat the occasion of the sixtieth anniversary of the Universal Declaration as an opportunity to take stock by exploring these questions and making the comparison explicit.

I do so by considering the two parts of the term separately. First, regarding "bill of rights," what are the similarities and differences between the UDHR, ICCPR and ICESCR on the one hand and domestic bills of rights on the other? In particular, to what extent or in what sense, if any, has international human rights law become constitutionalized...

The Two Trends that Matter for Party Politics

Wed, 29 Jul 2026 00:00:00 +0000

In this essay, Professors Fishkin and Gerken argue that the Supreme Court’s deregulation of the campaign-finance system is fueling a shift toward "shadow parties" -- groups that are separate from the formal party apparatus but run by party insiders and central to the workings of the party writ large. They argue that the roots of this trend are to be found, paradoxically, not in the two parties’ weakness but in their strength. Contrary to the emerging conventional wisdom in the field, the authors suggest that the Court’s 2014 decision in McCutcheon v. FEC will do little to arrest this trend. The essay closes with a brief exploration of the trend’s normative implications. This essay is a version of a talk presented at the 2014 Brennan Center Convening, Money in Politics 2030: Toward a New Jurisprudence.

Congress's Power to Preempt the States

Wed, 29 Jul 2026 00:00:00 +0000

In this Article, part of a symposium on federal preemption of state tort law, I build upon my earlier work on the nature of preemption to try and deepen the conceptual and constitutional foundations of the subject. I argue that this neglected dimension must be moved to center stage if preemption doctrine is to have a coherent and principled framework. In particular, the key issues are the nature, source, and limits of Congress's power to preempt the states.

The result is that preemption should be understood as a discretionary power of Congress the source of which lies in the Necessary and Proper Clause. Most importantly, one and the same constitutional limit on this power is strongly suggested by analyzing it from all four of the following perspectives: (a) its source in the Necessary and Proper Clause; (b) its similarity to two other congressional powers to alter federal-state relations, (c) the political safeguards of federalism, and (d) comparative constitutional law....

The 'Horizontal Effect' of Constitutional Rights

Wed, 29 Jul 2026 00:00:00 +0000

This article proposes a rethinking of the U.S. position on the reach of constitutional rights into the private sphere, both in domestic and comparative terms. This issue is standardly deemed resolved by the state action doctrine: with one exception, constitutional rights bind only governmental and not private actors. This, however, provides only a partial answer to the general issue for the fact that private actors are not bound by constitutional rights is consistent with various different positions on the extent to which such rights govern their legal relations with one another, and thereby impact what they can lawfully be permitted or required to do. The U.S. answer to this important, second dimension of the scope of individual rights is to be found not in the interpretive labyrinths of the Fourteenth Amendment's state action requirement but more simply and straightforwardly in the Supremacy Clause, which mandates that all law, including private law, common law, and the law...

The New Commonwealth Model of Constitutionalism

Wed, 29 Jul 2026 00:00:00 +0000

There has been a tremendous growth in constitutionalism around the world in the last sixty years. Mostly, it has come in two concentrated bursts: in western Europe and Japan following World War II, and in central Europe and Africa following the collapse of communism in 1989. Despite fascinating and important differences in the forms that this growth has taken in various countries, the overarching story is one in which the essentials of the American model of constitutionalism have been adopted. These essentials posit a necessary and fundamental incompatibility between legislative supremacy and the effective legal protection of individual rights, so that opting for the latter requires "constitutionalizing" them in the following specific sense: giving such rights the status of supreme law; entrenching them against ordinary legislative repeal or amendment; and enforcing them through the power of judicial review, exercise of which is unreviewable by ordinary legislative means.

There...

Limiting Constitutional Rights

Wed, 29 Jul 2026 00:00:00 +0000

The structure of constitutional rights in the United States and most other liberal democracies grants to legislatures a limited power to override constitutional rights. This limited power contrasts with an absolute one, as enshrined in section 33 of the Canadian Charter of Rights and Freedoms, and is also both general and non-interpretive in nature, unlike the substantive view of Congress's power under Section 5 of the Fourteenth Amendment. This override power tends to be obscured in the United States by the unique absence of express limits on rights and, thus, a textually mandated two stage process of rights adjudication. Indeed, this absence also helps to explain why the whole topic of limits on rights is strangely under-theorized in the United States.

In this Article, I first highlight the existence and nature of the limited legislative power to override constitutional rights in the United States and elsewhere. I then present a normative justification of this power...

The Meaning of Bush v. Gore

Wed, 29 Jul 2026 00:00:00 +0000

The first section of this paper comments on a paper by Edward N. Foley, in which Professor Foley proposes a taxonomy for analyzing and evaluating actual and potential challenges to electoral practices under Bush v. Gore. The second section, which is the core of the paper, proposes an interpretation of Bush v. Gore based on a close reading treating the per curiam opinion as an integrated explanation of a result rather than taking particular statements out of context. The opinion is shown to be coherent. It is not "limited to its facts" and it does not attempt to negate any precedential effect, as many scholars have claimed. Two factors are crucial to the holding: (1) There was a disparate treatment of identical items of evidence in a judicial proceeding, and (2) the evidence treated inconsistently bore on the fundamental right to vote. The holding of the case is applicable only when those factors are present. However, the third and final section of the paper proposes a taxonomy,...

A Narrow Path Out of Gerrymandergeddon

Wed, 29 Jul 2026 00:00:00 +0000

What would it take to end the present downward spiral of partisan gerrymandering in the United States? This essay, a revised and expanded version of a keynote lecture delivered in February 2026, argues that the only possible answer at this point is carefully crafted federal legislation. Such legislation can be enacted only through partisan constitutional hardball—paradoxically in the service of anti-hardball. One party must push through the reforms that would entrench a future political system in which both parties organize their politics around competing on a fair basis for the public’s votes.The essay develops an account of what such legislation must contain if it is going to do the job—and in particular, how Congress should write it so that it survives inevitably extreme hostility from the Supreme Court, some lower federal courts, and some state legislatures, governors, and state courts. The essay argues that overcoming these barriers is extremely challenging,...

Trademark Law's Faux Federalism

Wed, 29 Jul 2026 00:00:00 +0000

Federal and state trademark laws regulate concurrently: The Lanham Act does not preempt state law, and in fact many states have statutorily and/or judicially developed trademark or unfair competition laws of their own. This state of affairs, which is now well-accepted even if it has not always been uncontroversial, distinguishes trademark law from patent and copyright law, since federal patent and copyright statutes preempt state law much more broadly. The Patent Act entirely preempts state law with respect to non-secret inventions and the 1976 Copyright Act preempts state copyright law with respect to all works fixed in a tangible medium of expression.

According to the common wisdom, concurrent trademark regulation derives from the historical primacy of state law, which federal law later supplemented but did not supplant entirely. John Cross, for example, argues characteristically that the Lanham Act - builds upon a foundation of state-law rights, leaving states generally...

Fixing Copyright in Three Impossible Steps: Review of How to Fix Copyright by William Patry

Wed, 29 Jul 2026 00:00:00 +0000

This review of William Patry’s How to Fix Copyright highlights three of Patry's themes. First is Patry’s insistence that copyright policy be based on real-world evidence, a suggestion that should be uncontroversial but instead runs headlong into the near-religious commitments of copyright stakeholders. Second is Patry’s emphasis on the difference between the interests of creators, on the one hand, and owners of copyright interests, on the other. Third, and finally, is Patry’s focus on the copyright system’s strong tendency to entrench business models and resist change, particularly in the face of new technology.

Picturing the Life Course of Procreative Choice

Wed, 29 Jul 2026 00:00:00 +0000

For a substantial part of women’s lives, regulating fertility is a primary project. This Article depicts the life course of women’s procreative choice through a series of complex visual representations of data derived from the National Longitudinal Survey of Youth 1979 and the National Survey of Family Growth 2002. These graphic representations illustrate that preventing procreation, through a variety of choices, including contraception, sterilization, abortion, abstinence, and partner choice, occupies most of a woman’s fertile years, as compared with childbirth.

The Breadth Versus the Depth of Congress's Commerce Power

Wed, 29 Jul 2026 00:00:00 +0000

This article introduces the concept of the depth of Congress's commerce power alongside the more familiar focus on its breadth, and argues that both are important for understanding the power's full contours. Moreover, as illustrated by a detailed comparison of the Lochner and New Deal Courts, breadth and depth may pull in opposite directions and so complicate traditional labeling of constitutional eras as favoring either state or national authority.

Thus, although the Lochner Court undoubtedly held a limited view of the breadth of the commerce power, at the same time it also held an unlimited view of the depth of that power - in the sense of the impact on state authority of its valid exercise. It conceived of the commerce power as latently exclusive of state authority, meaning that federal regulation automatically terminates state authority in the same area. The Lochner Court employed this deep conception of the commerce power to promote not the market in the abstract,...

State and Comparative Constitutional Law Perspectives on a Possible Post-Roe World

Wed, 29 Jul 2026 00:00:00 +0000

This essay comments on Richard Fallon's 2006 Childress Lecture at St. Louis University School of Law, If Roe Were Overruled: Abortion and the Constitution in a Post-Roe World. By providing what I hope are some helpful and interesting details from state and comparative constitutional law, the essay underscores and supplements what Fallon says about two of the four common fallacies concerning the constitutional consequences of overruling Roe that he identifies in his lecture. These are that it would: (1) wipe the legal slate clean for new state statutes regulating abortion and (2) end federal court involvement in the abortion wars.

In explaining why overruling Roe would not automatically wipe the legal slate clean for new state statutes regulating abortion, Fallon points to the many pre-Roe statutes still on the books that would again become operative unless repealed. He also mentions the possibility that state constitutions may recognize abortion rights that the federal...

Voting as a Positive Right: A Reply to Flanders

Wed, 29 Jul 2026 00:00:00 +0000

This brief symposium piece, written in response to an article by Chad Flanders, asks: Can a state allow write-in votes, but discourage them by making them difficult to cast? I argue that the answer is no – for reasons that highlight two fundamental, but underappreciated, aspects of election law.

A Democratic Defense of Constitutional Balancing

Wed, 29 Jul 2026 00:00:00 +0000

We all live in the age of constitutional balancing. Abstracting away differences of nuance and doctrinal detail, balancing is a common feature of the structure of rights analysis across contemporary constitutional systems. Indeed, abstracting just a little further still, balancing is an inherent part of the near-universal general conception of a constitutional right as an important prima facie claim that nonetheless can, in principle, be limited or overridden by non-constitutional rights claims premised on conflicting public policy objectives.

It is not surprising, then, that a significant literature about constitutional balancing has developed at both domestic and comparative levels. What is surprising is that so little of this literature has attempted to present the normative case for constitutional balancing or the general structure of rights analysis of which it is an inherent part. Rather, the existing scholarship has mostly focused on five other tasks: (1) describing...

Bottlenecks, Disability, and Preference-Formation: A Reply

Wed, 29 Jul 2026 00:00:00 +0000

How can opportunity pluralism help us understand the relationship between disability and equal opportunity? Or between opportunities and the formation of preferences? This reply essay briefly addresses these questions. An even briefer coda considers the question of global opportunity pluralism. This piece is a lightly edited and footnoted version of remarks delivered in 2015 at the North American Society for Social Philosophy book award panel, where the award went to "Bottlenecks: A New Theory of Equal Opportunity."

The Myth and the Reality of American Constitutional Exceptionalism

Wed, 29 Jul 2026 00:00:00 +0000

This article critically evaluates the widely held view both inside and outside the United States that American constitutional rights jurisprudence is exceptional. There are two dimensions to this perceived American exceptionalism: the content and the structure of constitutional rights. On content, the claim focuses mainly on the age, brevity, and terseness of the text and the unusually high value attributed to free speech. On structure, the claim is primarily threefold. First, the United States has a more categorical conception of constitutional rights than other countries. Second, the United States has an exceptionally sharp public/private division in the scope of constitutional rights resulting in their lesser reach into private conduct. Third, the U.S. Constitution is exclusively a charter of negative rights and so rejects the two main types of positive constitutional rights - social and economic rights and rights to governmental protection - recognized by many other constitutions.

The...

The Anti-Bottleneck Principle in Employment Discrimination Law

Wed, 29 Jul 2026 00:00:00 +0000

State legislatures and the Equal Opportunity Employment Commission (EEOC) have moved in parallel in recent years to provide new protections for the employment prospects of some surprising groups: people who are unemployed, people who have poor credit, and people with past criminal convictions. These new protections confound our usual theories of what antidiscrimination law is about. These groups are disanalogous in a variety of respects to groups defined by such characteristics as race, sex, and national origin. But the legislators and regulators enacting these new protections were responding to pervasive problems they observed in the opportunity structure of our society — problems of a particular kind that I call bottlenecks. Essentially, these legal actors judged that poor credit, unemployment, and past criminal convictions were having too outsized an effect on a person’s employment prospects. If many or most employers demand good credit, then good credit becomes a serious...

Human Rights and International Constitutionalism

Wed, 29 Jul 2026 00:00:00 +0000

As both a descriptive and normative enterprise, "international constitutionalism" is currently one of the leading approaches to international law, especially in parts of Europe. Within this enterprise, the rapid development of international human rights law is often taken to be central, but exactly how or why this promotes constitutionalism at the international level remains unclear. In this article, I attempt to clarify and assess the role of human rights in discussions of international constitutionalism. I do so by focusing on the comparison between domestic constitutional law and international human rights law and asking the following two threshold questions. First, how different are these two legal systems and, in particular, is there anything "constitutional" about the latter, as international constitutionalists implicitly or explicitly claim? Second, why have both systems? Does international human rights law perform any distinctive functions over and above domestic bills...

Where the (State) Action is

Wed, 29 Jul 2026 00:00:00 +0000

The questions of how and to what extent constitutional rights do or should bind the actions of private actors have sparked enormous interest among legal scholars worldwide in the last few years. This is not only because of the great practical importance of the subject in the wake of the spectacular burst of constitution-making since 1989 but also because the very range of situations with which many of these new constitutions have been designed to deal - from post-apartheid to post-communism - has challenged scholars to think anew about the nature and function of constitutions.

This essay, reviewing "The Constitution in Private Relations: Expanding Constitutionalism," a timely and broad-ranging collection of articles edited by Andras Sajo and Renata Uitz, identifies and then seeks to clarify or resolve four key issues that recur both throughout the book and in the broader scholarly debate. These issues are: (1) the best way to conceptualize the issue of state action/horizontal...

The Party's Over: McCutcheon, Shadow Parties, and the Future of the Party System