Article

Print
Article
86 Special
Posner’s Unlikely Patent Intervention
Jonathan S. Masur
John P. Wilson Professor of Law and David and Celia Hilliard Research Scholar, The University of Chicago Law School.

I thank Saul Levmore for helpful comments; Ashley Kang and Savannah West for excellent research assistance; and the David and Celia Hilliard Fund and the Wachtell, Lipton, Rosen & Katz Program in Behavioral Law & Economics for support.

At first glance, patent law might seem the least likely place to look for Judge Richard Posner’s impact on the law.

Print
Article
86 Special
Richard Posner, the Decline of the Common Law, and the Negligence Principle
Saul Levmore
William B. Graham Distinguished Service Professor, The University of Chicago Law School.

I am grateful to Lee Fennell, Daniel Hemel, Ariel Porat, and Claire Horrell for rewarding conversations and suggestions.

Richard Posner was certainly the most able judge in the history of tort law and in the development and deployment of law and economics.

Print
Article
86 Special
Posner and Class Actions
Daniel Klerman
Edward G. Lewis Professor of Law and History, USC Gould School of Law. dklerman@law.usc.edu.

The author thanks Saul Levmore for helpful comments; Haley Tuchman and P.J. Novack for excellent research assistance; Paul Moorman for outstanding library reference support; and Robert Klonoff, John Coffee, and Brian Dean Morales for sharing video of the important “Posner on Class Actions” conference that Columbia Law School hosted on March 2, 2018.

The hallmark of Judge Posner’s class action decisions is rigorous review to ensure that aggregate litigation serves the best interests of class members and does not unduly pressure defendants to settle.

Print
Article
86 Special
Unlikely Resurrection: Richard Posner, Promissory Estoppel, and The Death of Contract
Douglas G. Baird
Harry A. Bigelow Distinguished Service Professor, The University of Chicago Law School

I thank Saul Levmore for his thoughtful comments. The Frank Greenberg Fund provided generous research support for this Essay.

Many of Richard Posner’s opinions boldly confront great questions. But equally important are those that, in the aggregate, illuminate discrete areas of the law and make them easier to understand.

Print
Article
86 Special
Foreword
Lawrence Lessig
Roy L. Furman Professor of Law and Leadership, Harvard Law School

Richard Posner is the most prolific federal judge and academic in the history of American law.

Print
Article
86.4
Religious Accommodation, the Establishment Clause, and Third-Party Harm
Mark Storslee
Executive Director, Stanford Constitutional Law Center.

Thanks to Stephanie Barclay, William Baude, Thomas Berg, Samuel Bray, Jud Campbell, Nathan Chapman, Nora Freeman Engstrom, Carl Esbeck, Richard Garnett, Stephanie Inks, Mark Kelman, Andrew Koppelman, Douglas Laycock, Christopher Lund, Ira Lupu, William Marshall, Michael McConnell, Chloe Moon, Douglas NeJaime, Jane Schacter, Geoffrey Sigalet, Lance Sorenson, Charles Tyler, Robin Fretwell Wilson, and participants in the Stanford Law School Fellows Workshop and the Annual Law and Religion Roundtable for helpful conversations and feedback on earlier drafts. Special thanks are also due to Frederick Mark Gedicks, Micah Schwartzman, and Nelson Tebbe for their generosity and for helpful conversations about this topic and others. All errors, of course, are my own.

We occupy a unique moment in the story of American religious liberty. During the Founding period and for much of the twentieth century, it was widely accepted that religious accommodation—the practice of sometimes exempting religious individuals or groups from burdensome laws—was a desirable means of protecting free exercise. But as a matter of cultural consensus, that agreement seems to be quickly unraveling or at least entering a new period of uncertainty.

Print
Article
86.4
The Logic and Limits of Municipal Bankruptcy Law
Vincent S.J. Buccola
Assistant Professor, The Wharton School of the University of Pennsylvania.

Thanks to Douglas Baird, Allison Buccola, Steve Buccola, Laura Coordes, Brian Hathaway, Rich Hynes, Juliet Moringiello, Eric Rasmusen, David Schleicher, and David Skeel for extensive comments on earlier drafts; and to Joe Gyourko and Bob Inman for generative conversations. Thanks also to participants in workshops at Wharton and the Indiana University Kelley School of Business. Dorinda and Mark Winkelman provided valuable research support.

Cities and towns across the country face debt burdens of a magnitude not seen since the Great Depression. Four of the five largest municipal bankruptcies in history have been filed in the last decade, and more are bound to come.

Print
Article
86.3
The Failure of Mixed-Motives Jurisprudence
Andrew Verstein
Associate Professor of Law, Wake Forest University School of Law.

For helpful comments, I am grateful to Jessica Clarke, Brandon Garrett, Mike Green, Aziz Huq, Martha Nussbaum, Eric Posner, Sean P. Sullivan, David Super, Matthew C. Stephenson, Gabriel Rauterberg, Ron Wright, the participants in the Brooklyn Law School Faculty Workshop, the George Mason Faculty Workshop, and the Yale/Stanford/Harvard Junior Faculty Forum. Andrew Homer and Abby Jacobs provided helpful research assistance.

How should we judge people who act for both good and bad motives?

Print
Article
86.3
Enacted Legislative Findings and Purposes
Jarrod Shobe
Associate Professor of Law, J. Reuben Clark Law School, Brigham Young University.

Thanks to Michael Herz, Ethan Leib, Victoria Nourse, Bill Eskridge, Rachel Barkow, Jim Brudney, Peter Strauss, Abbe Gluck, Jesse Cross, Maggie Lemos, Evan Zoldan, Bill Buzbee, Josh Chafetz, Daphna Renan, Paul Stancil, Aaron Nielson, participants at the Legislation Roundtable at Fordham University, the J. Reuben Clark Law Society Workshop, and BYU law faculty workshop for helpful comments on earlier drafts. For excellent research assistance I am grateful to Trevor Nielson, Bonnie Stohel, Eric Abram, Katie Ellis, and Laura Hunt. I am especially grateful for the assistance of Shawn Nevers for help with many of the empirical aspects of this project.

Whether judges should consider legislative history is the most hotly debated issue in statutory interpretation.

Print
Article
86.3
Testing for Trademark Dilution in Court and the Lab
Barton Beebe
John M. Desmarais Professor of Intellectual Property Law, New York University School of Law.

The authors thank Jamie Boyle, Chris Buccafusco, Alex Cadmus, Shari Diamond, Michael Frakes, Jeanne Fromer, John Golden, Scott Hemphill, Marco Kleine, Stephan Tontrup, and Deepa Varadarajan; and participants in workshops at the New York UniversitySchool of Law, the Duke University School of Law, the St. John’s University School of Law, the 2017 Intellectual Property Scholars Conference hosted by the Benjamin N. Cardozo School of Law, the 2018 Munich Summer Institute hosted at the Bavarian Academy of Sciences and Humanities, Georgia State University’s J. Mack Robinson College of Business, and the Intellectual Property, Science, and Technology Workshop hosted by the University of Texas at Austin School of Law for helpful comments and conversations. Thanks also to the Filomen D’Agostino and Max E. Greenberg Research Fund for grants that supported this work, and to Ari Lipsitz for excellent research assistance.

Roy Germano
Senior Research Scholar, New York University School of Law.
Christopher Jon Sprigman
Professor of Law, New York University School of Law.
Joel H. Steckel
Professor of Marketing and Vice Dean for Doctoral Education, New York University Stern School of Business.
Trademark dilution is among the most elusive concepts in intellectual property law.

Volumes