This article investigates the relationship between ideology and judicial decision-making in the context of intellectual property. Using data drawn from Supreme Court intellectual property cases decided in between 1954 and 2006, the authors show that ideology is a significant determinant of cases involving intellectual property rights: the more conservative a judge is, the more likely he or she is to vote in favor of an intellectual property claim. However, their analysis also shows that there are significant differences between intellectual property and other areas of the law with respect to the effect of ideology. This analysis has important implications for the study of intellectual property. It also contributes to the broader judicial ideology literature by demonstrating the effect of ideology in economic cases.

This article challenges the standard narrative of the Lochner era by challenging one of its most basic assumptions: that the idea of right existing at the beginning of the twentieth century was the modern notion of right-as-trump. Precisely the opposite view prevailed during the first two decades of the century: rights could easily be trumped by the common welfare and police power. If this critique is correct, it not only upsets contemporary views of the Lochner era, it also challenges the basic dichotomy implicit in the debate. On one view, the conventional one, Lochner was the product of politics, on the other revisionist view, it was the product of law. But neither argument is correct. There were two stories of Lochner that once lived side-by-side, one a story of elite discourse within courts, a discourse in which rights could be trumped by the police power, and a simultaneous and highly public discourse, promoted by prominent public figures, such as Theodore Roosevelt, in which rights were strong—strong enough to thwart majorities and transform people’s lives. Our constitutional system reflects, with respect to the most important political issues, a “dualist” form of constitutional review—one an elite practice of courts, the other a practice of popular constitutionalism. The great irony of Lochner’s history is how these stories came to switch places, how a popular constitutional story of strong rights, one largely forged in the public square, became a story that is thought today, albeit wrongly, to be one of law. It is not enough any longer to rehash the old realist debates about a dichotomous law or politics. A new legal realism invites us to understand the relationship of law to politics in all its complexity by identifying principles of translation and mutual interaction.

Unlike many other developed (and developing) nations, the United States does not have a statute authorizing preventive detention without charges. U.S. law has no formal statutory mechanism by which such a person could be detained. Some have suggested that this is a potentially profound defect in our national security armature. Indeed, had a rational preventive detention regime been in place, we might have avoided some of the many problems we have experienced at Guantanamo – problems that virtually everyone acknowledges require a new direction now. On the other hand, others see the absence of a preventive detention law in the U.S. Code as a testament to our collective commitment to individual liberty.

Preventive detention is in fact an established part of U.S. law for a wide range of nonterrorist situations. Federal and state statutes authorize preventive detention of those facing trial on criminal or immigration charges, and of those whose mental disabilities warrant civil commitment. The proper question, therefore, is not whether we should authorize preventive detention — it is already authorized — but how and under what circumstances it should be authorized. In particular, is there a case for preventive detention of persons suspected of terrorism beyond the preventive detention authorities that already exist, and are the existing authorities appropriate for detaining suspected terrorists? Are existing preventive detention authorities appropriately drawn to distinguish between those who truly need to be detained preventively, and those who do not? Should different rules apply in light of the potentially catastrophic harms posed by twenty-first century terrorists? Should different rules apply to Al Qaeda, a terrorist organization that has declared war on the United States, attacked us here and abroad, against whom Congress has authorized a military response, and with whom the United States is in an ongoing military conflict in Afghanistan? And if preventive detention is permissible under some circumstances, what are the appropriate substantive and procedural safeguards that should accompany it?

These are some of the most difficult and controversial legal questions of the day. In the wake of the Supreme Court’s decision extending habeas corpus review to Guantanamo detainees, it is a question that is certain to generate substantial litigation. As I will suggest in this article resolution of these questions must move beyond simple assertions that we must have – or must not have — a preventive detention regime. We already have such a regime – the proper question is whether it is a rational and sensible one, and if not, what can be done to reform it in a constructive fashion?

Over the past decade, scholars have paid increasing attention to Japanese-American constitutional history. For the most part, this literature focuses on the government’s decision during World War II to intern people of Japanese ancestry. But the trope of the Japanese as perpetual foreigners predates internment. My aim in this Article is to explore another historical moment in which that trope figured in constitutional discourse: 1922. In that year, Takao Ozawa attempted to persuade the Supreme Court that he was eligible for naturalization, and more particularly, that he was “white.”

Notwithstanding that Ozawa is one of a few cases in which the rights of people of Japanese descent are squarely before the Supreme Court, not a single law review article sets forth the case’s legal, political, and social context. Consequently, we know very little about how Ozawa got to the United States, how his case got to the Supreme Court, and how he shaped the timing and substance of the litigation. Nor do we know how the lawsuit figured in, helped to constitute, and was itself constituted by the civil rights consciousness of the Japanese-American community. Even less appreciated are the geo-political concerns that shaped how the U.S. and Japanese governments responded to the case as it journeyed through the courts and eventually received media attention.

This Article fills these gaps and sheds new light on the district court and Supreme Court opinions. A full telling of Ozawa’s story demonstrates how both courts drew on popular and scientific sources of racial knowledge to conclude that people of Japanese descent were neither white nor Caucasian. More importantly, the Article shows that these opinions helped to make Ozawa yellow. The inability of Japanese people to become citizens—their unnaturalizability—was not a natural pre-existing fact (existentially just there) but a legally produced reality (existentially contingent). To put the point slightly differently, Takao Ozawa was not born yellow. He became yellow—by law. This article tells the story of this racial becoming, a story within which both Oliver Wendell Holmes and Louis Brandeis are implicated.

Finding Instruction from Punjab's "Missing Girls": Towards a Global Feminist Perspective on "Choice" in Abortion employs the current phenomenon of sex-selective abortions in Punjab (India) to call for a re-evaluation of the concept of "choice" as it pertains to women's reproductive freedom. It is hoped that this case study of sex selection in Punjab will effectively problematize "choice," not to weaken the abortion rights movement, but rather to strengthen it by making it more nuanced and globally applicable.

As is being widely discussed in South Asian and other media, Punjab today epitomizes the growing phenomenon of female feticide, or sex-selective abortion of girls. Research indicates that women abort girls due to societal pressures and deeply ingrained prejudices against the girl child. Such abortions have resulted in increasingly warped sex ratios:the sex ratio in Punjab has now fallen below 880 girls to 1000 boys as compared to the natural sex ratio of about 950 girls to 1000 boys. While abortion is legal in India, the growing trend of "missing baby girls" has prompted laws criminalizing sex-selective abortions across the country, including Punjab. Approaching anti-sex selection laws through a global feminist lens, this paper studies whether these laws help or detract from the struggle against Punjabi patriarchal norms. Similarly, it explores non-legal responses to sex-selection, e.g. vigils, and suggests that the campaigns are not only ineffective but might in fact adversely affect women's welfare.

Viewed within the binary notion of "choice" in Western feminist discourse around abortion, the women aborting female fetuses in Punjab are "pro-choice." But this label does not have the same implications in the Punjabi context of sex-selective abortions as it does in American society today. This paper thus argues for a broader notion of "choice." Given current societal norms and pressures, if the "choice" is between abortion and no abortion, a contemporary Punjabi woman will choose abortion. But when more choices are placed on the table-the choice to raise a daughter without worrying about dowry; the choice to have a daughter support you in old age without worrying about ridicule; the choice to raise a daughter without worrying about violence that will be inflicted against her-the same Punjabi woman might not then choose to abort her female fetus. Without assuring women security, honor and prestige regardless of the "choice" (son or daughter) they make, any law or governance banning sex selection will not only be unsuccessful, but also unfair. This paper calls for supporting the Punjabi woman in bringing about societal change, rather punishing her for finding a survival mechanism for herself and not wishing her predicament on a daughter.

Over the past two decades, the number of lawsuits filed against multinational corporate entities for environmental degradation and human rights abuses has skyrocketed. At the same time, U.S. courts have shown an increasing reluctance to hear such cases, turning to the common-law doctrine forum non conveniens (FNC) as a basis for dismissal. FNC dismissals usually mandate that corporate defendants submit to jurisdiction in the courts of the nation or nations where the alleged injuries occurred. While defendants often voluntarily agree to such stipulations, a disturbing practice has emerged in recent years: so-called boomerang litigation. Strengthened by procedural reforms, judiciaries abroad have proved both capable of entertaining complex environmental and human rights suits and willing to hold multinational businesses accountable. As a result, defendants have begun to mount challenges to the legitimacy of the very proceedings they assiduously lobbied for in the first place, challenges often brought in the same court that initially granted dismissal. These "boomerang suits" risk inconsistent results, create the possibility of substantial delay, and, depending on the claims at issue, threaten to magnify catastrophic harms to human rights and the environment. Using the infamous Aguinda v. Texaco and its progeny Republic of Ecuador v. ChevronTexaco as a case study, this Comment will propose a simple, though novel, solution: if a matter has been dismissed once on forum non conveniens grounds, subsequent courts must do everything in their power to ensure that foreign continuations go smoothly, including upending parallel litigation so that all claims stemming from the same "nucleus of operative fact" can be resolved in a single forum. This is particularly true when the stakes are not merely large sums of money, but the wellbeing of entire communities. To do otherwise sets the stage for manipulation and circumvention of judicial systems abroad. Further, even if businesses are ultimately held accountable, complications entailed by multiple international proceedings and appeals may, in the context of human rights and the environment, result in increased loss of life.

This article argues that modern economic formalism is nothing more than an argument for purportedly rational ignorance and closed-mindedness in courts. Although individuals may well be ignorant in many circumstances, courts ordinarily should not strive to be. The article first describes why rational ignorance and (to coin a phrase) "rational closed-mindedness" in individuals fail to generalize to courts. It then responds in detail to a leading formalist argument in contract law, demonstrating some characteristic failures of formalist arguments.