A Jurisprudential Approach to Common Law Legal Analysis

In this Article, Professor Beckerman-Rodau explores an array of underlying policy concerns that shape judicial decision making. Various members of society identify these policy concerns differently, depending on their points of view. Professor Beckerman-Rodau suggests that the purpose and goals of law shift over time to accommodate and reflect changing societal norms. At the same time, however, certain underlying policies, most significantly equity and uniformity, are universal in their application in the legal system. Because every rule of law is based on several underlying and often conflicting policy considerations, Professor Beckerman-Rodau argues that these competing considerations are expressed in the form of multi-layer, bi-polar, or in some cases, multi-polar continuums. Specifically, the employment requirement of vicarious liability represents bi-polar continuum considerations, whereas the reasonableness test of covenants-not-to-compete exemplifies a multi-polar continuum approach to law. An examination of the right of publicity typifies the significance of policy considerations in the evolution of this relatively new cause of action. Preventing consumer confusion, protecting business reputations, and recognizing intellectual property rights are policy concerns that will affect the scope of protection provided by the right of publicity. The weight that decision makers assign to these competing policy considerations is inevitably a product of a combination of factors such as individual biases, collective norms, and the overarching goal of law as a mechanism for the fair resolution of disputes.