The Architecture of Judicial Ethics
In 1999, Professor Stephen Burbank wrote an article entitled The Architecture of Judicial Independence.1 It is a foundational piece that gave structure to… Continue reading →
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Deferring to Foreign Courts
Federal judges have too many options for deferring to foreign courts, none of them particularly good. Not only have judges… Continue reading →
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Digital Civil Procedure
This Essay, written for a festschrift celebrating the career and contributions of Stephen Burbank, grapples with the procedural implications of… Continue reading →
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Horizontal Choice of Law in Federal Court
Federal courts routinely apply state law. In diversity cases, federal courts apply the state law that the forum state would… Continue reading →
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Politics, Identity, and Pleading on the U.S. Courts of Appeals
We report the results of an empirical study of appeals from rulings on motions to dismiss for failure to state… Continue reading →
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The Hague Convention on Choice of Court Agreements: A Critical Assessment
The Hague Convention on Choice of Courts Agreements (“Convention” or “Choice of Court Convention”) aspires to be one of the… Continue reading →
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A Fragility Theory of Trademark Functionality
According to functionality doctrine, trademark protection cannot be granted for any feature that is essential to a product’s use or… Continue reading →
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Secrecy Creep
Legal scholars have long been fascinated by the topic of government secrecy. Yet they have largely focused their attention on… Continue reading →
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Taking Disability Public
Antidiscrimination laws enforce the idea that no one should be forced or encouraged to hide their race, gender, sexuality, or… Continue reading →
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Vested Rights, “Franchises,” and the Separation of Powers
Modern courts and commentators have had trouble distinguishing the kinds of decisions that require “judicial” power from the adjudicative tasks… Continue reading →