Shawn J. Bayern
This Article develops an approach to constructing the meaning of prior court cases that is more helpful than formalistic, conventional distinctions between concepts like “holdings” and “dicta.” Instead of trying to classify judicial announcements into fixed categories, courts should engage in a broader interpretive inquiry when confronting prior cases. Determining what a judicial opinion stands for requires determining the intent that motivated the opinion, as carefully understood in light of the factual and argumentative context that gave rise to it.
Under this view of precedent, binding common law arises in large part from principles explicated after considering facts. Viewing precedent in this way indicates a generally unrecognized danger from fact-unbound precedents—that is, legal rulings by courts that cannot sensibly be tied to the facts of particular cases. Such unbound precedents arise chiefly in the context of statutory interpretation. This Article suggests several solutions to this problem, including a statutory interpretation avoidance maxim and a novel proposal that courts should not consider themselves obliged in all cases to answer the legal questions that underlie parties’ disputes.
MERGING PUBLIC AND PRIVATE GOVERNANCE: HOW DISNEY’S REEDY CREEK IMPROVEMENT DISTRICT “RE-IMAGINED” THE TRADITIONAL DIVISION OF LOCAL REGULATORY POWERS
Chad D. Emerson
On November 22, 1963, one airplane flight changed the course of Central Florida—and in many ways the entire nation. Aboard the plane was Walter Elias Disney, the creative genius who had ushered in a new era of American entertainment through his animated features and Disneyland theme park in Anaheim, California. From his window seat, Disney looked down on acreage of undeveloped land, including rural swampland and citrus groves—a physical environment that hardly seemed ripe for what would soon become one of the largest private developments in the United States. Yet, as was his skill, Disney saw an opportunity where others did not—so much so that a small team of Disney confidants soon began acquiring 27,000 of these isolated acres for what would ultimately become the iconic Walt Disney World Resort.
ON BECOMING “PROFESSOR”: A SEMI-SERIOUS LOOK IN THE MIRROR
Were this a typical law review article, I would begin by hinting— in less than three sentences—at a broad theory that would revolutionize the field reflected in the article. What I would actually be doing is attempting to use enough big words to disguise the fact that instead of being a presentation of a transformative idea, the only original thought is contained in two brief paragraphs on page forty three. But law review editors do not like two-paragraph law review articles, so I needed to introduce the original idea with references to everything that has been ever been written on the subject. Not that I’ve read everything that has ever been written on the subject, but by throwing in the citations and an occasional quote, I’ve at least pretended to have a grasp of the material. Moreover, by starting out with a broad theory or topic, I have expanded the article’s potential readership from the two people who care about my topic to many more who after reading the broad thesis will believe that I care about their topics (which I don’t, but they will not know that until finishing the article). That is roughly what I would do were this a typical law review article, but as you can probably tell by now, I’m a little too honest. And this isn’t your typical law review article.
FINANCIAL POLLUTION: SYSTEMIC RISK AND MARKET STABILITY
This Comment analyzes systemic risk in the financial system and shows how current regulations provide insufficient protection for our capital markets. Though the mortgage crisis and subsequent liquidity crisis currently affecting Wall Street provide the context for this analysis, this Comment is neither meant as a full account of these events, nor a detailed exploration of our banking regulations. Rather, this Comment shows how the incentives created by our current regulatory regime lead to externalities that threaten the stability of the financial system. By focusing on the incentives guiding financial actors, this Comment proposes a novel approach to financial regulation using mechanisms that have effectively internalized external costs in conceptually similar scenarios.
SAVING TOMORROW FROM TODAY: PRESERVING INNOVATION IN THE FACE OF COMPULSORY LICENSING
Samuel Mark Borowski
This Comment describes a compensation method for use with pharmaceutical compulsory licenses. Specifically, it proposes a method for determining “adequate remuneration” under the TRIPS agreement in a way that balances intellectual property rights with government obligations to promote the public health. Beginning with an introduction to U.S. patent law and its economic justifications, it describes the effects of U.S. policy choices on innovation within the U.S. pharmaceutical industry. Next, it describes the need for access to medicines in countries like South Africa and explains how patents block access in these countries—thereby necessitating compulsory licensing. Given the relationship between trade and intellectual property, this nexus is briefly described and followed by a short introduction to the TRIPS agreement and the subsequent Doha Declaration. With this background in mind, and confined by the TRIPS requirements, this Comment describes a method for determining “adequate remuneration” so that courts can balance the need for technological innovation with the need to access essential medicines, making both realities for the future.