Volume 88, Issue 1
Articles
In this Article, Professor Greene compares the broad appeal of originalism in the United States with its relative lack of popularity in other constitutional democracies. He offers several hypotheses as to the influences that cause the American culture to accept originalism much more readily than other nations, ultimately concluding that the debate over originalism in the United States should be approached in ethical terms.
Constitutional interpretation is an important facet of the judicial system in many countries throughout the world. As is the case in the United States, judicial restraint and strict adherence to constitutional principles are encouraged in many judicial systems internationally. A number of factors make the judicial systems in Canada and Australia particularly comparable to the American system. Nevertheless, the historicist-style originalism that is popular in the United States lacks support in both of these countries. Greene offers six hypotheses for this phenomenon: the canonizing influence of time; the revolutionary character of American sovereignty; the rights revolution of the Warren and Burger Courts; the politicization of the judicial-nomination process in the United States; the accommodation of an assimilative, as against a pluralist, ethos; and a relatively evangelical religious culture. Greene concludes that these hypotheses, in turn, suggest that the originalist argument in the United States is a form of ethical argument, and the debate over originalism should be framed as such.
Responses in See Also:
In this Article, Professor Young discusses the implementation of treaties as part of domestic law in the United States. He argues that the Supreme Court’s approach to treaty interpretation should be no different than the Court’s approach to interpreting statutes and other forms of domestic law.
Professor Young notes that The Paquete Habana and the Supremacy Clause of the Constitution clearly indicate that treaties are to be considered “part of our law.” Internationalists interpret The Paquete Habana to require courts to presume that treaties are self-executing and defer to supranational bodies’ interpretation of treaties. However, Young argues that recent cases interpreting the Vienna Convention on Consular Relations cast doubt on the internationalist position. He concludes that treaties, like ordinary forms of domestic federal law, are often not self-executing and should be interpreted by the Supreme Court based on domestic common law norms rather than international concerns.
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Book Reviews
Professor Byrne reviews two recent books on academic freedom: Matthew Finkin and Robert Post’s For the Common Good: Principles of American Academic Freedom and Stanley Fish’s Save the World on Your Own Time. Professor Byrne suggests that academic freedom should be perceived as a method for preserving professional judgment in the scholarly pursuit of truth rather than as a constitutional right. He compares each book’s contribution to this view of academic freedom.
Professor Fish reviews Matthew Finkin and Robert Post’s book, For the Common Good: Principles of American Academic Freedom. In his review, Fish argues that Finkin and Post are too quick to cast aside justifiable and coherent theological objections to academic freedom. Fish also notes that Finkin and Post’s defense of absolute academic freedom is inconsistent with the rights of donors and governing bodies to assert control over academic institutions.
Professor Post reviews Stanley Fish’s book, Save the World on Your Own Time. In this review, Professor Post discusses Fish’s suggestion that professors should only disseminate knowledge and avoid discussing substantive political matters in the classroom. Post argues that Fish misapprehends both the purpose of higher education—to facilitate students’ intellectual development—and the role of professors in less objective academic disciplines—to study the world in order to produce action.
Notes
In this Note, Bexley discusses the treatment of confidentiality agreements in insider trading cases. After examining the limited case law on the issue, he argues that a confidentiality agreement alone is insufficient to subject a shareholder to liability for insider trading under the misappropriation theory.
The Supreme Court’s insider trading jurisprudence plainly indicates that a corporate “outsider” (a person who is not an officer or director in the company) may be held liable for insider trading under the misappropriation theory. However, misappropriation liability is premised on the trading of stock in violation of a duty not to trade. More specifically, a person is only guilty of insider trading under the misappropriation theory when he misappropriates confidential information in violation of a duty to the source of the confidential information. Bexley argues that a confidentiality agreement, without more, cannot form the basis of a duty not to trade. Instead, he concludes that a duty not to trade can only be premised on the existence of a traditional fiduciary relationship between the shareholder and the source of confidential information.
In this Note, Schmidt analyzes the liability of corporate participants—owners and agents of a corporation—in a patent infringement action against a corporation. He concludes that the Federal Circuit should adopt a more workable regime that mirrors the liability of corporate participants under traditional tort and agency principles.
Traditional agency principles are designed to balance the need to promote economic efficiency with the conflicting desire to deter tortious behavior. The liability scheme for patent infringement, on the other hand, is overly deferential to corporate officers and tends to misallocate liability. Schmidt argues that the Federal Circuit should adopt certain principles from agency law in allocating liability for patent infringement in the corporate context. This would require corporations to internalize a baseline amount of risk, which has proven socially beneficial in ordinary agency law.
