We measure the evolution of the common law using a comprehensive data set of cases regarding the enforceability of online consumer contracts. We find a steady decline in the number of cases adjudicated in state courts relative to federal courts, and a parallel rise in class actions migrating to federal courts. Erie notwithstanding, the common law is driven by federal court decisions, building incrementally on each other rather than state law. Rather than the law resolving hierarchically, we identify a “tournament effect” in which the law settles on one or a few influential decisions regardless of the state law that the case may have arisen under.
From sequels and spin-offs to physical merchandise, copyright and trademark law together give a creative work’s owner exclusive control over a range of derivative products. This Article argues that, under the right conditions, that control can tilt artistic investment away from standalone works and toward the ones that are most likely to generate future derivatives. It explores this phenomenon through a case study of the U.S. film industry.
The reigning antitrust paradigm has turned “competition” into a talisman, even as antitrust law has functioned in reality to allocate economic coordination rights. Thus, “competition” and its companion “efficiency” have been selectively deployed to attack disfavored forms of economic coordination, both within antitrust and without. These include horizontal coordination beyond firm boundaries, democratic market coordination, and labor unions. Yet on entirely different grounds, a specific exception to the “competitive order” has been written into the law for one type of coordination, and one type only.
This Article provides the first in-depth scholarly examination of the process by which enacted laws are organized and presented for public consumption, known as codification, a process that has mostly escaped the notice of judges and scholars of legislation, and even fails to make it into textbooks meant to introduce lawyers to the creation and interpretation of law. It argues that the failure to account for this process has left gaps in our understanding of what law is and how it should be interpreted.
This article disrupts the common sense of deportation, drawing attention to the limits of assembling scholarship and advocacy efforts around the inevitability of deportation. By introducing deportation abolitionas a possible horizon for immigrant scholarship and advocacy, the article pushes legal scholarship to focus on what might be required to end deportation.