Supreme Court Review of Misconstructions of Sister State Law

When the Constitution requires a state court to apply sister state law to a case before it, how faithfully must the state court interpret that law? By declining to review a state high court’s apparent misconstruction of sister state law, the Supreme Court has given state courts nearly unlimited freedom to construe sister state laws however they wish to. As a consequence, the constitutional constraints on choice of law mean little: a state court compelled to apply sister state law can simply interpret that law to match its own state’s law.

This Note argues that the Supreme Court should not be so deferential to state court misconstructions of sister state law when application of that law is required by the Constitution. Three changes in the legal landscape since the Court first held it had no power to review such misconstructions support this conclusion: first, the Court no longer exercises mandatory review via the writ of error; second, courts now treat issues of sister state law as issues of law, not issues of fact; and third, the Court now recognizes a constitutional right to the application of sister state law in certain circumstances. When state high courts misconstrue state laws in ways that threaten other constitutionally-protected rights, such as those protected by the Contracts Clause and the Due Process Clause, the Supreme Court has long held that it can review those misconstructions. The same should be true for misconstructions that undermine the constitutional constraints on choice of law.

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.