Rutgers law journal最新文献

{"title":"State Constitutional Law in the New Deal Period","authors":"Keith E. Whittington","doi":"10.2139/SSRN.2593641","DOIUrl":"https://doi.org/10.2139/SSRN.2593641","url":null,"abstract":"The 1930s is generally understood to be a period of constitutional revolution in the United States, with a restrictive conservative U.S. Supreme Court giving way to a latitudinarian liberal Court. The politics of judicial review and the substance of constitutional law in the states has rarely been considered. This article begins to integrate the states into the broader story of American constitutional development in these pivotal years. Focusing on a sample of four state courts between 1925 and 1945, this article argues that the U.S. Supreme Court and the struggle over federal constitutional law may have been more idiosyncratic and exceptional than typical of the constitutional politics of the period. Judicial review in the state courts and the elaboration of state-level constitutional law are characterized by continuity rather than transformation during this period. State courts were able to routinely use the power of judicial review to invalidate legislation across this time period, but they rarely found themselves obstructing the core policies being advanced by the other parts of the state governments.","PeriodicalId":82622,"journal":{"name":"Rutgers law journal","volume":"67 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2015-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68215626","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Legal Conflicts and Subnational Constitutionalism","authors":"Giacomo Delledonne, Giuseppe Martinico","doi":"10.2139/SSRN.1824210","DOIUrl":"https://doi.org/10.2139/SSRN.1824210","url":null,"abstract":"This paper analyses the increasing use of the concept of subnational identity, understood as a peculiar (to some extent) category that is opposed to the State or federal identity. References to it are included in the second-generation Italian (subnational) fundamental charters (Statuti) and Spanish Estatutos de autonomia. After an overview of the identity clauses contained in the sub-national constitutions, we will move to analyse the first cases of judicial relevance of these clauses when they are invoked before national courts, and test whether and how these subnational identity provisions could be interpreted in a manner consistent with the national constitution.","PeriodicalId":82622,"journal":{"name":"Rutgers law journal","volume":"42 1","pages":"881-912"},"PeriodicalIF":0.0,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67755387","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Linguistics and Claim Construction","authors":"K. Osenga","doi":"10.2139/SSRN.882431","DOIUrl":"https://doi.org/10.2139/SSRN.882431","url":null,"abstract":"Despite its great importance in patent litigation and recent interest derived from the U.S. Court of Appeals for the Federal Circuit's en banc Phillips opinion, claim construction - the process of giving a patent claim meaning through defining its terms - is largely an unsettled and uncertain area of patent law. In part, this uncertainty may be due to the Federal Circuit's failure to provide adequate guidance on the process. This Article suggests that the Federal Circuit should clarify its claim construction jurisprudence, looking to the science of linguistics to provide bases for an improved set of guidelines that will improve certainty in patent law. This Article argues that claim construction should instead track the way in which we, as readers of a language, attempt to understand what is being conveyed via the written word. First, there is a base level of conventional understanding from which all interpretation starts, an understanding that either a priori exists based on our earlier encounters with the word or is obtained from a dictionary in cases where we lack previous knowledge. Second, from this conventional understanding, we construct the actual meaning of the term based on a number of linguistic clues, both internal to the document and external from our prior experiences. In particular, there are at least five notions from linguistics that can help shape a more consistent claim construction methodology: 1) every reader, including a judge, possesses a mental lexicon with a common sense (or conventional) understanding of word meaning which is a point from which to start when interpreting claims; 2) there is an appropriate place for dictionary usage, which is to inform the judge's common sense understanding about a word where he has none; 3) patent claims have their own grammar which must inform the syntactical and contextual analysis, but may also skew the reader's common understanding that was obtained either from a mental lexicon or from a dictionary; 4) regardless of the common sense understanding, the PHOSITA must be returned to the analysis and changes made to the law to effectuate the return of the PHOSITA; and 5) extensive resort to the specification and prosecution history to divine the patentee's intent is inappropriate.","PeriodicalId":82622,"journal":{"name":"Rutgers law journal","volume":"38 1","pages":"61"},"PeriodicalIF":0.0,"publicationDate":"2006-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67853521","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Copyright on Catfish Row: Control and Compensation in Porgy and Bess","authors":"Olufunmilayo B. Arewa","doi":"10.2139/ssrn.667385","DOIUrl":"https://doi.org/10.2139/ssrn.667385","url":null,"abstract":"","PeriodicalId":82622,"journal":{"name":"Rutgers law journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2005-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67789230","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Towards a Practice of Deliberative Democracy: A Proposal for a Popular Branch","authors":"E. Leib","doi":"10.2139/SSRN.405420","DOIUrl":"https://doi.org/10.2139/SSRN.405420","url":null,"abstract":"Frustrated by the failure of theorists of deliberative democracy to envision concrete institutional design proposals that the theory recommends, the author proposes a fourth branch of government called the Popular Branch. The Article recommends replacement of the initiative and referendum processes with deliberative assemblies, where stratified random samples of lay citizens are compelled to convene and decide policy questions in a jury-like environment. The Article tries to evision how this mechanism for garnering both a civic voice and a popular will could be integrated with the separation of powers and acceptable checks and balances.","PeriodicalId":82622,"journal":{"name":"Rutgers law journal","volume":"33 1","pages":"359"},"PeriodicalIF":0.0,"publicationDate":"2003-07-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68685780","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Genetic dilemmas and the child's right to an open future.","authors":"D. Davis","doi":"10.2307/3527620","DOIUrl":"https://doi.org/10.2307/3527620","url":null,"abstract":"Although deeply committed to the model of nondirective counseling, most genetic counselors enter the profession with certain assumptions about health and disability—for example, that it is preferable to be a hearing person than a deaf person. Thus, most genetic counselors are deeply troubled when parents with certain disabilities ask for assistance in having a child who shares their disability. This ethical challenge benefits little from viewing it as a conflict between beneficence and autonomy. The challenge is better recast as a conflict between parental autonomy and the child's future autonomy.","PeriodicalId":82622,"journal":{"name":"Rutgers law journal","volume":"28 1","pages":"549-92"},"PeriodicalIF":0.0,"publicationDate":"1997-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3527620","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68616343","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Genetic dilemmas and the child's right to an open future.","authors":"D S Davis","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":82622,"journal":{"name":"Rutgers law journal","volume":"28 ","pages":"549-92"},"PeriodicalIF":0.0,"publicationDate":"1997-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22141990","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}