Gillian E. Metzger :: In Federalism and the Generality Problem in Constitutional Interpretation, Professor John Manning takes aim at the Rehnquist Court’s practice of invoking freestanding, textually unspecified principles of federalism as a basis for limiting congressional power. Manning identifies this practice at work in the “new federalism” cases — in particular, the clear statement requirement of Gregory v. Ashcroft; the anticommandeering rule of New York v. United States and Printz v. United States; and the protection of state sovereign immunity in state court of Alden v. Maine. Manning argues that such invocation of freestanding federalism in constitutional interpretation is fundamentally at odds with the Court’s textualist turn in statutory interpretation, where the Court has rejected general purposive analysis because it fails to respect the reality of legislative compromise. Manning claims that resort to abstract federalism purposes is similarly disrespectful of the processes and compromises used to adopt and amend the Constitution.

READ MORE

Justin Hughes :: In Foreseeability and Copyright Incentives, Professor Shyamkrishna Balganesh argues that if the exclusive rights of copyright are justified because they create an ex ante incentive, then the exclusive rights — and the financial yields that follow — should be limited to the uses of the copyrighted work that were foreseen by the creator at the time of the work’s creation. In this response, Professor Justin Hughes argues that this idea initially sounds more radical than it actually is. After exploring the parameters of the Balganesh proposal, he describes how, despite its appeal, it is incompatible with how Congress has expressly written the copyright grant; how nonetheless we might try to integrate the proposal into our fair use doctrine; and how, despite rationality being bounded, Balganesh is mistaken that authors cannot factor unforeseen consequences into their ex ante expectations of the rewards that copyright dangles in front of them. He concludes that in the context of current copyright scholarship, the proposal is yet another clever strategy — albeit one that might be cumbersome and ineffectual — to produce what Congress and the Supreme Court have denied copyright minimalists: a shorter copyright term.

READ MORE