Volume 38, Number 1


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Alan E. Garfield

Copyright and the First Amendment exist in tension. The Supreme Court acknowledges this tension but contends that copyright law resolves it with two built-in free speech safeguards: (1) by protecting only the expression of ideas and not the ideas themselves (the idea/expression dichotomy); and (2) by allowing the use of expression under certain circumstances (the fair use doctrine). The problem is that these doctrines are notoriously vague, so users often cannot know ex ante whether their uses will be immune from liability. This unpredictably might be tolerable if users could be confident that, if they were subject to liability, any damage award would be limited to a reasonable licensing fee or a share of profits attributable to the infringement. But copyright law allows plaintiffs to opt for statutory damages instead of compensatory or restitutionary damages, and statutory damages can sometimes be punitive and even grossly excessive.
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Christina M. Sautter

A fundamental precept of corporate law is that boards of “directors owe fiduciary duties to the corporation and its shareholders.” An equally fundamental precept of both contract law and mergers and acquisitions law is that parties to a definitive merger agreement are bound by the covenants in the agreement and must honor their commitments. These two fundamental precepts can clash due to events arising after the signing of a definitive merger agreement but before the transaction is completed. This Article addresses just such a clash: situations where a board of directors has a contractual commitment to recommend a transaction to its stockholders but where an event occurs after the signing of that agreement that would normally require a board, in honoring its fiduciary duties, to withdraw its earlier recommendation. This potential change in the board’s recommendation places the completion of a proposed transaction at risk and leads to deal instability. Although dealmakers are always cognizant of completion risk and generally use definitive agreements to distribute risks, the recent financial crisis has placed a renewed focus on completion risk.
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Paul M. Secunda

Cultural cognition theory provides an anthropological- and psychological-based theory about how values actually influence judicial decisionmaking. It suggests that values act as a subconscious influence on cognition rather than as a self-conscious motive of decisionmaking.

Applying these insights to two controversial United States Supreme Court labor and employment decisions, this Article contends that judges, in many instances, are not fighting over ideology, but rather over legally consequential facts. This type of disagreement is particularly prevalent in labor and employment law cases where the factual issues that divide judges involve significant uncertainty and turn on inconclusive evidence.

This distinction between ideology and cultural cognition is critical for two connected reasons. First, the identification of cultural worldviews, as opposed to partisan or legal bias, as a major influence on judicial decisionmaking assists in bringing legitimacy back to the judging function. Second, social science research indicates that techniques exist for judges to counteract their susceptibility to this form of biased decisionmaking.
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Mary Sigler

For more than three decades, the prison population in the United States has steadily increased.1 “[F]or the first time [in American history], more than one in every 100 adults is now confined in an American jail or prison.” During the course of this rapid expansion, states and the federal government have come to rely increasingly on private prisons. In 2007, private detention facilities housed more than 7% of incarcerated adults in federal and state prisons. At least 35 states and the District of Columbia now have private prisons; federal officials are also turning to private facilities. The Federal Bureau of Prisons pays private providers to house approximately 11.5% of federal inmates, and at the end of 2007, Immigration and Customs Enforcement housed about 38% of its detainees in privately managed facilities.
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Laura McDonald

“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.” This unwavering maxim written over 200 years ago by Justice John Marshall continues to resonate in federal courtrooms today. Yet, judges often face difficulties when attempting to heed Marshall’s words, especially when tasked with interpreting an ambiguous statute. Furthermore, disagreement over what device the court should grab out of its interpretive toolbox to provide clarity may impede a judge’s ability to effectively “say what the law is.” One common interpretive practice looks to traditional legislative history, including committee reports, sponsor statements, and floor debates. Others seek to clarify ambiguities with dictionary definitions. However, under recent administrations, a new tool has found its way into the judiciary’s assortment of interpretive aides—presidential signing statements. Presidents continue to issue more signing statements each year, often times asserting their own interpretation of a statute. Utilization of this executive tool presents the question: should these statements be characterized as a new form of legislative history on which federal courts should rely when engaging in statutory construction?
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