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Glucksberg, Lawrence, and the Decline of Loving’s Marriage Precedent

In recent debates about the constitutionality of laws banning same-sex marriage, both sides invoke and confront the seminal 1967 Supreme Court case of Loving v. Virginia, which invalidated a Virginia law banning miscegenation. Both sides, however, fail to recognize that Loving is distinguishable on the basis of what rights are at stake, rather than which parties are allowed to marry. Legal developments in the years since 1967 have rendered the right to marriage recognized by the Supreme Court in Loving a nullity in the same-sex marriage debate. In particular, the core rights of marriage that the Court found to be fundamental in 1967 have been recognized outside of the institution of marriage. Changes in laws banning cohabitation and fornication affect marriage precedent that assumes the existence of those laws.

This note adds two contributions to that line of reasoning. The first is an examination of how those changes have affected Loving in particular rather than marriage case law in general. The second is the application of the Glucksberg methodology to the use of Loving as precedent in a fundamental rights analysis. The combination of those observations shows that developments in the law of individual rights recognizing the right to cohabitate and the right to consensual sexual intimacy have stripped marriage of its status as the exclusive domain where those rights could legally be exercised, rendering Loving’s substantive due process language irrelevant to the debate.


Expressive Incentives in Intellectual Property

American copyright and patent laws are founded on utilitarian notions of providing limited incentives to create socially valuable works. This Article shows that incentives that express solicitude for and protect a creator’s strong personhood and labor interests can serve to support this underlying utilitarian purpose. In so doing, this Article shows that important incentives exist in addition to traditional pecuniary incentives. Through this lens, this Article demonstrates that what scholars typically see as a conflict between theories of utilitarianism and moral rights in intellectual property can in fact come together much of the time in a useful harmony to promote cultural, scientific, and technological progress. The Article then shows a number of promising areas for application in copyright and patent law of expressive incentives, such as attribution, the structure of duration, copyright’s originality requirement and its reversion right, and patent’s first-to-invent standard and written-description requirement. These areas are promising ones for investigation into the ideal mix of pecuniary and expressive incentives in intellectual property. Other areas, like integrity and robust restraints on alienability, are more troublesome because their societal costs might exceed their benefits.

 

The Effect of Bargaining Power on Contract Design

Over the past 40 years, an irrelevance proposition has been prevalent in law -and -economics scholarship: bargaining power should affect only price and not non-price terms of a contract. In contrast, practitioners and commentators in industry regularly invoke bargaining power to explain static and dynamic variance in non-price contract terms. This paper unpacks and analyzes the assumptions of the strong—and weak—versions of this bargaining power irrelevance proposition, to bridge the gap between theory and the real world. In the first half of the paper, we identify and discuss a variety of explanations for the effect of bargaining power on contract design, under conditions of information asymmetry and positive transaction costs. These include the effects of shifts in market supply and demand and the effect of bargaining through lawyers. In the second half of the paper, we present an in-depth examination of one set of explanations, concerning the impact of bargaining power and information asymmetry on non-price terms, when the value and cost of non-price terms vary across contracting parties. In the extreme cases in which one or the other party enjoys overwhelming bargaining power, the efforts of that party to capture a larger share of the surplus by screening or signaling may compromise the efficiency of the non-price terms. We show that this incentive disappears or is mitigated when bargaining power is more evenly shared between the parties: for example, when a monopolist faces the threat of competition, when the parties can renegotiate, or when they engage in bilateral bargaining with more even bargaining power. As a whole, the paper provides a theoretical basis for interpreting the intuition among market participants that the impact of bargaining power extends beyond price terms. Before concluding, we briefly suggest implications for legal policy, particularly the contract law doctrine of unconscionability.

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