This Article presents a systematic examination of combination analysis in U.S. constitutional law. In so doing, it seeks to make four contributions to the burgeoning scholarly literature on the subject. First, the Article collects and taxonomizes existing examples of combination analysis in U.S. Supreme Court doctrine, demonstrating that combination arguments have enjoyed a wider range of application than has thus far been supposed. Second, the Article examines the conceptual structure of combination analysis, revealing some underappreciated functional similarities between combination‐based constitutional reasoning and other more commonly accepted features of public law adjudication (including, for instance, arguments based on constitutional structure and arguments based on the constitutional avoidance canon). Third, the Article sorts through the practical pros and cons of combination analysis, shedding light on the questions of whether and (if so) when courts should advance combination arguments in the course of resolving a particular case. Finally, the Article offers some preliminary guidance regarding the implementation of combination analysis, identifying in particular four different types of “combination errors” that courts should strive to avoid. What emerges from the discussion is the conclusion that combination analysis represents a real and conceptually valid method of constitutional reasoning, which, at least under some circumstances, stands to benefit the development of constitutional law.
VOLUME 164, ISSUE 5 April 2016
Why? I find that the Board of Immigration Appeals and the courts of appeals fail to promote uniformity across immigration judges because they review an unrepresentative sample of cases. Harsher immigration judges more often order immigrants deported early in their proceedings, before they have found a lawyer or filed an application for relief. Immigrants without lawyers rarely appeal. The Board therefore rarely reviews the removal orders of immigrants who might have meritorious claims but who are assigned harsh judges and lack lawyers at the beginning of their proceedings.
These quantitative findings, together with interviews and immigration court observation, lead to three incremental, practical policy recommendations. First, the Board of Immigration Appeals and the courts of appeals should adopt a less deferential standard of review of an immigration judge’s denial of a request for a continuance to seek representation. Second, the government should take simple steps to make applications for relief easier to fill out. Third, the Board of Immigration Appeals should hear a random sample of cases in addition to those appealed by the litigants. More broadly, these findings offer further reason—in addition to basic access‐to‐justice concerns—to support calls for the government to appoint counsel for immigrants in removal proceedings.
In Part I, I present an overview of the video game industry as a whole, with a focus on the increasingly important role mobile gaming plays. In Part II, I discuss the basic elements of copyright doctrine and how case law as applied to video games has evolved over time and shaped the industry. In Part III, I address the potential shifts in case law indicated by the Tetris Holding, Spry Fox, and DaVinci cases. In Part IV, I discuss a recent example of cloning in mobile gaming, and how a modified copyright regime could have led to a more preferable outcome. Finally, in Part V, I suggest steps for video game developers to take in game development to better protect themselves.
This Comment argues that the answer must be in the affirmative. Contrary to the propositions on display in the New START debate, there is quite simply no basis for a broad statement that preambles, by their very nature, are legally inconsequential. Customary international law, as embodied in the VCLT, supports this conclusion—although it does not provide clear guidance. Nevertheless, in practice, preambles are a frequent subject of discussion among treaty makers, parties to disputes, and adjudicators alike. This state of affairs naturally raises an additional query: To what extent do treaty preambles matter? This Comment aims to construct an answer to this question.