Virginia Law Review最新文献_第4页

Principled Minimalism: Restriking the Balance between Judicial Minimalism and Neutral Principles 有原则的极简主义:在司法极简主义和中立原则之间重新找到平衡

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2004-09-14 DOI: 10.2307/1515648

Jonathan T. Molot

引用次数: 3

Through the Looking-Glass: The Confederate Constitution in Congress, 1861-1865 透过镜子：1861-1865年国会的邦联宪法

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2004-09-01 DOI: 10.2307/3202380

David P. Currie

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引用次数: 2

Psychopathy and Responsibility 精神病与责任

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2004-09-01 DOI: 10.2307/3202382

Charles Fischette

引用次数: 9

Judicial Takings and the Course Pursued 司法征收与诉讼过程

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2004-09-01 DOI: 10.2307/3202383

W. D. Sarratt

引用次数: 2

Awards for Pain and Suffering: The Irrational Centerpiece of Our Tort System 痛苦奖：我们侵权制度的非理性中心

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2004-09-01 DOI: 10.2307/3202381

Paul v. Niemeyer

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引用次数: 14

Enforcement Costs and Trademark Puzzles 执行费用和商标难题

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2004-06-30 DOI: 10.2307/1515642

R. Bone

{"title":"Enforcement Costs and Trademark Puzzles","authors":"R. Bone","doi":"10.2307/1515642","DOIUrl":"https://doi.org/10.2307/1515642","url":null,"abstract":"The standard account holds that trademark law, at its core, aims to protect consumers from deceptive and confusing uses of source-identifying marks. However, there is a problem with the standard account. It cannot explain a number of important trademark doctrines, many of which, like the protection accorded trade dress, have expanded the scope of trademark rights in recent years. Some critics argue that these puzzling doctrines reflect a radical shift away from the standard account and toward a new property theory of trademark law that focuses not so much on the quality of information available to consumers as on the seller's ability to appropriate the full commercial value of its mark. This Article offers a different, and less alarming, explanation for many of the puzzling doctrines, one that does not require a radical departure from the standard account. This alternative explanation focuses on the enforcement costs of implementing law based on the standard account. Enforcement costs include the administrative costs of adjudicating trademark lawsuits and the error costs of over- and under-enforcing trademark rights. For a number of reasons, trademark law generates high enforcement costs, and many of the puzzling features of trademark doctrine can be understood as legal tools to manage these high costs. In particular, courts adopt general rules or standards that protect trademarks more broadly than the standard account's substantive policies support, but those rules and standards can be justified by the administrative and error costs they save. In the end, the Article uses the enforcement cost approach to suggest two reforms to trademark law - the broader acceptance of disclaimers especially in merchandising rights cases, and the abolition of trade dress protection.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"2099"},"PeriodicalIF":2.6,"publicationDate":"2004-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1515642","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68980426","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 17

Exclusion and Property Rules in the Law of Nuisance 妨害法中的排除与财产规则

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2004-06-16 DOI: 10.2307/3202415

Henry E. Smith

{"title":"Exclusion and Property Rules in the Law of Nuisance","authors":"Henry E. Smith","doi":"10.2307/3202415","DOIUrl":"https://doi.org/10.2307/3202415","url":null,"abstract":"This Article offers a theory of nuisance law based on information costs. Like trespass, much of the law of nuisance relies on a strategy of exclusion in which rights are defined using low-cost signals like boundary crossings that are only indirectly tied to particular uses. Nuisance law also supplements and fine-tunes this Blackstonian package of entitlements by means of a governance strategy, which relies on signals more directly tailored to particular uses. The information-cost advantage of strategies close to the exclusion end of the spectrum helps explain why, despite repeated calls for more balancing, nuisance law focuses on who caused invasions of whose land. Also consistent with an exclusion strategy are the staying power of traditional nonreciprocal notions of causation and the virtual nonexistence in nuisance of Rule 4 liability rules, under which plaintiffs would be permitted to invoke the law to force the polluter either to abate or shut down upon payment of the polluter's damages. Applying Hohfeldian analysis, the Article shows that the common law gives polluters at most a privilege to pollute and that Rule 4 does not refine the basic exclusion regime but rather undermines it. The general question becomes when to soften exclusion with governance and the Article concludes by arguing that, in situations such as oil and gas fields and Boomer-style pollution cases with numerous victims, only small judicial governance-style safety valves are necessary, especially if legislative and administrative solutions are forthcoming. More generally, the information-cost theory of nuisance brings the utilitarian and corrective justice approaches to nuisance closer together. Nuisance law is not a mess or mystery but does contain within it the inflection point between exclusion and governance.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"965"},"PeriodicalIF":2.6,"publicationDate":"2004-06-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202415","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69038844","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 3

Virtual Liberty: Freedom to Design and Freedom to Play in Virtual Worlds 虚拟自由:在虚拟世界中设计的自由和游戏的自由

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2004-06-07 DOI: 10.2307/1515641

J. Balkin

{"title":"Virtual Liberty: Freedom to Design and Freedom to Play in Virtual Worlds","authors":"J. Balkin","doi":"10.2307/1515641","DOIUrl":"https://doi.org/10.2307/1515641","url":null,"abstract":"Regulation of virtual worlds has become an important issue in cyberspace law as more and more people spend increasing amounts of their lives in these spaces. This essay discusses the basic questions of freedom and regulation in virtual environments. There are three kinds of freedom in virtual worlds. The first is the freedom of the players to participate in the virtual world through their in-game representations, or avatars. This is the freedom to play. The second is the freedom of the game designer to plan, construct, and maintain the virtual world. This is the freedom to design. A third is the collective right of the designers and players to build and enhance the game space together. This is the freedom to design together. These rights overlap in important respects with the constitutional rights of freedom of speech, expression and association. Virtually all activity in virtual worlds must begin as some form of expression, and therefore virtually all forms of legally redressable injury in virtual worlds will be some form of communications tort. However, the law of the First Amendment, as it currently exists, does not adequately protect many important features of the rights to design and play. Many virtual spaces are rapidly becoming sites of real world and virtual world commerce. In the future game designers will likely attempt to invoke the First Amendment to avoid regulation of their business practices. However, game designers will lose First Amendment protection to the extent that they encourage real-world commodification of virtual items. The article concludes by discussing different models of regulation of virtual worlds, including the model of consumer protection, the virtual world as company town, and virtual worlds as places of public accommodation.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"2043"},"PeriodicalIF":2.6,"publicationDate":"2004-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1515641","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68980367","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 87

What Brown Teaches Us About Constitutional Theory 布朗教我们的宪法理论

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2004-06-07 DOI: 10.2307/3202404

J. Balkin

{"title":"What Brown Teaches Us About Constitutional Theory","authors":"J. Balkin","doi":"10.2307/3202404","DOIUrl":"https://doi.org/10.2307/3202404","url":null,"abstract":"This essay, written for the 50th anniversary of Brown v. Board of Education, explains the key lessons of Brown for constitutional theory. Ironically, Brown has comparatively little to teach us about which normative constitutional theory is best, because almost every contemporary normative constitutional theory takes the correctness of Brown as a starting point. Rather Brown's key lessons concern positive constitutional theory - the study of how constitutional development and constitutional change occur over time. Courts, and particularly the U.S. Supreme Court, tend, over time, to reflect the views of national political majorities and national political elites. Constitutional doctrine changes gradually in response to political mobilizations and countermobilizations; minority rights gain constitutional protection as minorities become sufficiently important players in national coalitions and can appeal to the interests, and values, and self-conception of majorities, but minority rights will gain protection only to the extent that they do not interfere too greatly with the developing interests of majorities. Although Supreme Court decisionmaking tends to reflect these larger institutional influences, it is largely uninfluenced by normative constitutional theories about the proper way to interpret the Constitution. In fact, there is little reason to believe that the product of Supreme Court decisionmaking could regularly correspond to the outcome of any particular normative constitutional theory. This suggests that one important function of normative constitutional theory may not be giving advice to judges but rather offering professional legitimation for the work of the Supreme Court.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"1537"},"PeriodicalIF":2.6,"publicationDate":"2004-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202404","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69039072","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 22

Common Sense and Legal Science 常识与法学

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2004-06-01 DOI: 10.2307/3202416

Charles L. Barzun

{"title":"Common Sense and Legal Science","authors":"Charles L. Barzun","doi":"10.2307/3202416","DOIUrl":"https://doi.org/10.2307/3202416","url":null,"abstract":"The notion that law can be reduced to a science that yields truths as certain and universal as those of the physical sciences seems so implausible that efforts to characterize law in that way tend to strike most modern readers as either nave or dogmatic. Because nineteenth-century American legal theorists did describe law as a science, some modern scholars have interpreted nineteenth-century \"legal science\" as an attempt by a legal elite to obscure the inherently political nature of legal doctrine. Other scholars have defended the ability of legal reasoning to yield necessary and certain conclusions, but both groups of scholars assume that achieving legal certainty was the goal of legal science and disagree only as to whether such a goal was intellectually justified. This Note challenges that assumption by suggesting that many nineteenth-century legal theorists aspired to transform law into a science not simply because they desired legal certainty, but because they desired legal knowledge. These theorists conceived of themselves as legal scientists because they believed they could discover legal principles through the same inductive, empirical methods that yielded discoveries in the natural sciences.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"90 1","pages":"1051"},"PeriodicalIF":2.6,"publicationDate":"2004-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3202416","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69038887","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 2