Intellectual property’s road to hell is paved with good intentions. Because liability is difficult to predict and the consequences of infringement are dire, risk-averse intellectual property users often seek a license when none is needed. Yet because the existence (vel non) of licensing markets plays a key role in determining the breadth of rights, these seemingly sensible licensing decisions eventually feed back into doctrine, as the licensing itself becomes proof that the entitlement covers the use. Over time, then, public privilege recedes and rights expand, moving intellectual property’s ubiquitous gray areas into what used to be virgin territory—where risk aversion again creates licensing markets, which causes further accretion of entitlements, which in turn pushes the gray areas even farther afield, and so on. This “doctrinal feedback” is not a result of changes in the positive law but is instead rooted in longstanding, widely accepted doctrine and prudent behavior on the part of everyone involved. And because feedback is so ingrained in established law and practice, its various cures tend to create more problems than they solve. In the end, however, subtle changes in doctrine’s use of licensing information provide a normatively neutral solution.
Read Professor Rebecca Tushnet's Response, Why the Customer Isn’t Always Right: Producer-Based Limits on Rights Accretion in Trademark.
Read Professor Wendy Gordon's Response, The ‘Why’ of Markets: Fair Use and Circularity.
The Supreme Court regularly upholds federal legislation on grounds other than those stated by Congress. Likewise, an appellate court may affirm a lower court judgment even if the lower court’s opinion expressed the wrong reasons for it. Not so in the case of judicial review of administrative agencies. The established rule, formulated in SEC v. Chenery Corp., is that a reviewing court may uphold an agency’s action only on the grounds upon which the agency relied when it acted. This Article argues that something more than distrust of agency lawyers is at work in Chenery. By making the validity of agency action depend on the validity of the agency’s justification, Chenery’s settled rule enforces an aspect of the nondelegation doctrine that has been obscured by more recent decisions that understand nondelegation as involving only a demand for legislative standards, or “intelligible principles.” The neglected arm of the nondelegation doctrine, which Chenery enforces, holds that a delegation is constitutionally valid only if it requires the agency exercising the delegated authority to state the grounds for its invocation of power under the statute. Chenery’s enforcement of this norm polices the political accountability of agency action by ensuring that accountable decision-makers, not merely agency lawyers, have embraced the grounds for the agency’s actions, and it promotes the regularity and rationality of agency decision-making by enforcing a practice of reason-giving. This nondelegation account of Chenery explains why agencies must engage in reasoned decision-making to obtain deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. Chenery insists that, to receive Chevron deference, accountable agency actors must explain the bases for their decisions that bind with the force of law. By grounding Chenery in the enforcement of the nondelegation doctrine, this account also suggests that the President’s own exercise of statutory power is not immune from Chenery’s demands.
Cosmopolitanism: Ethics in a World of Strangers
BY KWAME ANTHONY APPIAH
NEW YORK: W.W. NORTON & CO., 2006. PP. 256. $23.95
The Ethics of Identity
BY KWAME ANTHONY APPIAH
PRINCETON: PRINCETON UNIVERSITY PRESS, 2005. PP. 384. $32.95
Frontiers of Justice: Disability, Nationality, Species Membership
BY MARTHA C. NUSSBAUM
CAMBRIDGE: HARVARD UNIVERSITY PRESS, 2006. PP. 512. $35.00
Read Professor Mark Janis's Response, The Quest for Higher Law.
Read Professor Jessica Stern's Response, The Dangers and Demands of Cosmopolitan Law.
Read Professor Abu-Odeh's Response, A Radical Rejection of Universal Jurisdiction.
Since Whren v. United States, Fourth Amendment analysis has failed to appreciate the serious wrongfulness of pretextual police behavior—especially searches and seizures. This is not because a pretext test is impractical or philosophically unsound. Rather, the problem lies in the current focus of our Fourth Amendment analysis, which puts undue emphasis on the individual’s “right to privacy” and insufficient emphasis on responsible police behavior. The state’s investigatory power is held in trust by the police for the people. If we refocus our attention on the idea that the police power must be deployed in a responsible manner in keeping with that trust, we can see clearly what is problematic about pretext.
Read Eric Citron's Pocket Part Commentary adapted from this Note.
Read Professor Margaret Raymond's Response, On Rights and Responsibilities: A Response to The Problem with Pretext.
Read Judge James Robertson's Response, How Whren Protects Pretext.
Section 5 of the Voting Rights Act (VRA)—the preclearance provision that is the most potent weapon in the nation’s civil rights arsenal—quietly suffered an unexpected defeat in the aftermath of Hurricane Katrina. The “static benchmarking test” used to administer section 5 failed to fulfill a core VRA mandate: the preservation of minority political power. This Note provides the first critical account of this failure and argues that it transcends the specifics of Katrina. The Note then proposes a narrowly tailored doctrinal “fix” to resurrect section 5’s enforcement powers after a disaster.