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Full-Text Articles in Law
Why Law Isn’T Jazz: A Response, James A. Gardner
The Scope Of Generic Choice Of Law Clauses, Tanya J. Monestier
The Scope Of Generic Choice Of Law Clauses, Tanya J. Monestier
Journal Articles
Non-proceduralists have the perception that questions of jurisdiction or choice of law are just preliminary issues that need to be dealt with before getting to the real dispute, the things that matter. What they do not realize is that these preliminary issues are often, themselves, the real dispute. They are the lever which permits litigation to proceed or which stops a claim dead in its tracks. Thus, these procedural matters — often dismissed as technicalities — have the potential to shape the dispute in significant ways.
Take for instance, a staple of commercial and consumer contracting: the ubiquitous choice of …
Overqualified And Underrepresented: Gender Inequality In Pharmaceutical Patent Law, S. Sean Tu, Paul R. Gugliuzza, Amy Semet
Overqualified And Underrepresented: Gender Inequality In Pharmaceutical Patent Law, S. Sean Tu, Paul R. Gugliuzza, Amy Semet
Journal Articles
Pharmaceutical patents represent some of the most valuable intellectual property assets in the world: they can be worth billions of dollars if courts uphold their validity and find them infringed. But, if invalidated, generic drug manufacturers can get to market earlier, generating billions of dollars of revenue for themselves and creating enormous savings for consumers. Accordingly, drug patents are the product of careful, high-cost prosecution and are associated with high-stakes, bet-the-company litigation. But women lawyers are noticeably absent from pharmaceutical patent practice. This article reports an original empirical study finding that women comprise only one-third of the top pharmaceutical patent …
The Ostensible (And, At Times, Actual) Virtue Of Deference, Anthony O'Rourke
The Ostensible (And, At Times, Actual) Virtue Of Deference, Anthony O'Rourke
Journal Articles
In Rethinking Police Expertise, Anna Lvovsky exposes how litigators leverage judicial understandings of police expertise against the government. The article is rich not only with descriptive insights, but also with normative potential. By rigorously analyzing the relationship between expertise and authority in specific cases, Professor Lvovsky offers guidance as to how judges and lawyers should factor a police officer’s expertise into an assessment of whether the officer’s conduct is lawful. This Response argues, however, that Rethinking Police Expertise’s normative potential is weakened by the sharp conceptual distinction it draws between judicial understandings of expertise as a “professional virtue” (which it …
What Is A “Case”?, Lynn M. Mather
What Is A “Case”?, Lynn M. Mather
Journal Articles
This article interrogates the concept of a “case” in court, in an effort to clarify underlying concerns in debates over whether there is “too much” or “too little” litigation. One perspective on litigation takes a bottom-up view, examining the considerations and motives of disputing parties who file civil claims. This perspective includes theories about litigation and social structure, economics, dispute transformation, political participation, and psychology. An alternative top-down view examines litigation from the perspective of government, including its interest in dispute resolution, social control, and institutional capacities of courts. The article reviews and critiques existing literature on these perspectives and …
Virtual Trials: Necessity, Invention, And The Evolution Of The Courtroom, Susan A. Bandes, Neal Feigenson
Virtual Trials: Necessity, Invention, And The Evolution Of The Courtroom, Susan A. Bandes, Neal Feigenson
Buffalo Law Review
Faith in the legitimating power of the live hearing or trial performed at the place of justice is at least as old as the Iliad. In public courtrooms, litigants appear together, evidence is presented, and decisions are openly and formally pronounced. The bedrock belief in the importance of the courtroom is rooted in common law, constitutional guarantees, and venerated tradition, as well as in folk knowledge. Courtrooms are widely believed to imbue adjudication with “a mystique of authenticity and legitimacy.” The COVID-19 pandemic, however, by compelling legal systems throughout the world to turn from physical courtrooms to virtual ones, disrupts …
Specialized Trial Courts In Patent Litigation: A Review Of The Patent Pilot Program's Impact On Appellate Reversal Rates At The Five-Year Mark, Amy Semet
Journal Articles
Do specialized trial court judges make more accurate decisions in patent law cases? In 2011, Congress passed a law setting up a ten-year patent law pilot program to enhance expertise in patent litigation by funneling more trial court decisions to fourteen selected district courts. Now that the five-year mark has passed, has the program had its intended effect of increasing accuracy, as measured by less reversal by the appellate court? In this Article, I analyze over 20,000 trial-court patent cases filed from late 2011 to 2016, focusing specifically on whether cases heard by district court judges participating in the patent …
Calls For Speculation: An Experimental Examination Of Juror Perceptions Of Attorney Objections, Krystia Reed
Calls For Speculation: An Experimental Examination Of Juror Perceptions Of Attorney Objections, Krystia Reed
Buffalo Law Review
Should attorneys object during trial? Does preserving the record outweigh the potential costs of objections, such as upsetting the jury or drawing attention to the evidence? Legal scholars have opined on the delicate balance attorneys must strike in their decisions to object, but researchers have offered little to guide attorneys making these in-the-moment decisions. I discuss results from two empirical studies that provide evidence that attorneys have less to fear from objections than legal scholars suggest. Based on these results, I provide suggestions for practicing attorneys.
Agency In State Agencies, Anya Bernstein
Agency In State Agencies, Anya Bernstein
Contributions to Books
Published as Chapter 5 in Distributed Agency, N. J. Enfield & Paul Kockelman, eds.
The democratic state is an administrative state: the actual work of representative governance is done primarily in administrative agencies, which interpret and implement the often vague ambitions inscribed in statutes. When we talk about agency in the state, then, we must primarily be talking about agency in agencies. That may seem odd. Bureaucracy seems like the absence of agency: just mechanistic gear-grinding continuing things begun by other, distant, powerful actors. Where can agency find a foothold amid the faceless people, the featureless buildings, the infinite red …
Defenders Of Wildlife V. Jewell: Environmentalists Win The Latest Battle In The Fight Over Gray Wolves, But Who Will Win The War?, Rachel Kenigsberg
Defenders Of Wildlife V. Jewell: Environmentalists Win The Latest Battle In The Fight Over Gray Wolves, But Who Will Win The War?, Rachel Kenigsberg
Buffalo Environmental Law Journal
No abstract provided.
Beware Of The Genetically Modified Crop: Applying Animal Liability Theory In Crop Contamination Litigation, Michael H. Carpenter Jr.
Beware Of The Genetically Modified Crop: Applying Animal Liability Theory In Crop Contamination Litigation, Michael H. Carpenter Jr.
Buffalo Environmental Law Journal
Genetically modified crops offer vast potential economic and social benefits to farmers and society, but also threaten the profits and harvests of conventional crop farmers through genetic crop contamination. On one hand, genetically modifled crops increase farming efficiency, decrease the cost offood, and provide solutions for global hunger. On the other hand, genetically modified crops may contaminate the crops of organic and conventional farmers through genetic drift, resulting in injury to both farmers and an apprehensive public. Litigation over crop contamination is an unsettled area of the law, even after four major crop contamination incidents. While courts have held that …
Navigating The Limitations On Discovery In Aia Post-Grant Proceedings, Mary R. Henninger, Jill K. Macalpine, Amelia Feulner Baur, Anthony A. Hartmann, Lara C. Kelley, Rebecca M. Mcneill, P. Andrew Riley, Michael A. Stramiello
Navigating The Limitations On Discovery In Aia Post-Grant Proceedings, Mary R. Henninger, Jill K. Macalpine, Amelia Feulner Baur, Anthony A. Hartmann, Lara C. Kelley, Rebecca M. Mcneill, P. Andrew Riley, Michael A. Stramiello
Buffalo Intellectual Property Law Journal
No abstract provided.
Stay Awhile: The Evolving Law Of District Court Stays In Light Of Inter Partes Review, Post-Grant Review, And Covered Business Method Post-Grant Review, Jonathan Stroud, Linda Thayer, Jeffrey C. Totten
Stay Awhile: The Evolving Law Of District Court Stays In Light Of Inter Partes Review, Post-Grant Review, And Covered Business Method Post-Grant Review, Jonathan Stroud, Linda Thayer, Jeffrey C. Totten
Buffalo Intellectual Property Law Journal
No abstract provided.
Amending Rather Than Cancelling Claims In Inter Partes Reviews, Stacy Lewis, Tom Irving
Amending Rather Than Cancelling Claims In Inter Partes Reviews, Stacy Lewis, Tom Irving
Buffalo Intellectual Property Law Journal
No abstract provided.
The Law Is Made Of Stories: Erasing The False Dichotomy Between Stories And Legal Rules, Stephen Paskey
The Law Is Made Of Stories: Erasing The False Dichotomy Between Stories And Legal Rules, Stephen Paskey
Journal Articles
When lawyers think of legal analysis, they think chiefly of logic and reason. Stories are secondary. As Michael Smith explains, our legal system “is not founded on narrative reasoning” but on “a commitment to the rule of law.” The article suggests that this dichotomy between “rule-based reasoning” and “narrative reasoning” is false, and that narrative and stories are central to legal reasoning, including rule-based reasoning. In doing so, the article uses literary narrative theory to show that every governing legal rule has the structure of a “stock story”: the elements of the rule correspond to elements of a story. It …
Where Is Home Depot “At Home”? Daimler V. Bauman And The End Of Doing Business Jurisdiction, Tanya J. Monestier
Where Is Home Depot “At Home”? Daimler V. Bauman And The End Of Doing Business Jurisdiction, Tanya J. Monestier
Journal Articles
In January 2014, the U.S. Supreme Court decided Daimler AG v. Bauman. The case was supposed to resolve a very important question that had divided courts for decades: when, for jurisdictional purposes, can the contacts of a subsidiary be imputed to its parent? The Supreme Court dodged this question. Instead, it answered a different, but equally important, question: under what circumstances is a corporation “at home” such that a state has general jurisdiction over it? The Court had introduced the “at home” language to the discourse on general jurisdiction a few years earlier in Goodyear Dunlop Tires Operations, S.A. …
Plaintiff Control And Domination In Multidistrict Mass Torts, S. Todd Brown
Plaintiff Control And Domination In Multidistrict Mass Torts, S. Todd Brown
Journal Articles
No abstract provided.
Environmental Judicial Interpretation And Agency Review: An Empirical Investigation Of Judicial Decision-Making In The Clean Water Act And The Clean Air Act, John A. Sautter, Levente Littvay
Environmental Judicial Interpretation And Agency Review: An Empirical Investigation Of Judicial Decision-Making In The Clean Water Act And The Clean Air Act, John A. Sautter, Levente Littvay
Buffalo Environmental Law Journal
Political ideology has long been associated with the manner in which judges make judicial decisions. Extensive empirical research has established the link between a judge s political ideology and how they rule on cases. However, little research has been conducted specifically in environmental law. Indeed, what research is available looks at environmental law in general and has not asked any questions concerning how political ideology might affect decision-making concerning specific environmental statutes. This article seeks to partially fill this void by looking specifically at how political ideology affects whether judges affirm or reverse agency action with respect to the Clean …
Checks, Balances And Judicial Wizardry: Constitutional Delegation And Congressional Legislation, Robert I. Reis
Checks, Balances And Judicial Wizardry: Constitutional Delegation And Congressional Legislation, Robert I. Reis
Journal Articles
No abstract provided.
Transnational Class Actions And The Illusory Search For Res Judicata, Tanya J. Monestier
Transnational Class Actions And The Illusory Search For Res Judicata, Tanya J. Monestier
Journal Articles
The transnational class action—a class action in which a portion of the class consists of non-U.S. claimants—is here to stay. Defendants typically resist the certification of transnational class actions on the basis that such actions provide no assurance of finality for a defendant, as it will always be possible for a non-U.S. class member to initiate subsequent proceedings in a foreign court. In response to this concern, many U.S. courts will analyze whether the “home” courts of the foreign class members would accord res judicata effect to an eventual U.S. judgment prior to certifying a U.S. class action containing foreign …
Leviathan Menacing The Gulf Coast: Catastrophic Consequences May Imperil The Rule Of Law, Beau James Brock
Leviathan Menacing The Gulf Coast: Catastrophic Consequences May Imperil The Rule Of Law, Beau James Brock
Buffalo Environmental Law Journal
No abstract provided.
Rape Victims As Mockingbirds: A Law And Linguistics Analysis Of Cross-Examination Of Rape Complainants, Sara D. Schotland
Rape Victims As Mockingbirds: A Law And Linguistics Analysis Of Cross-Examination Of Rape Complainants, Sara D. Schotland
Buffalo Journal of Gender, Law & Social Policy
No abstract provided.
Personal Jurisdiction Over Non-Resident Class Members: Have We Gone Down The Wrong Road?, Tanya J. Monestier
Personal Jurisdiction Over Non-Resident Class Members: Have We Gone Down The Wrong Road?, Tanya J. Monestier
Journal Articles
No abstract provided.
The Procedural Impact Of Ksr On Patent Litigation, Meng Ouyang
The Procedural Impact Of Ksr On Patent Litigation, Meng Ouyang
Buffalo Intellectual Property Law Journal
No abstract provided.
Resetting The Doomsday Clock: Is It Constitutional For Laches To Bar Copyright Infringement Claims Within The Statute Of Limitations?, Ryan Christopher Locke
Resetting The Doomsday Clock: Is It Constitutional For Laches To Bar Copyright Infringement Claims Within The Statute Of Limitations?, Ryan Christopher Locke
Buffalo Intellectual Property Law Journal
No abstract provided.
Marks Of Mayhem & Murder: When A Few Bad "Mongols" Spoil The Bunch, Should The Government Seize A Motorcycle Association's Registered Trademark?, Tracy Reilly
Buffalo Intellectual Property Law Journal
No abstract provided.
The Importance Of State Trade Secret Laws In Deterring Trade Secret Espionage, Carl Pacini, Raymond Placid
The Importance Of State Trade Secret Laws In Deterring Trade Secret Espionage, Carl Pacini, Raymond Placid
Buffalo Intellectual Property Law Journal
No abstract provided.
Permanent Injunctions In Patent Cases, Dariush Keyhani
Permanent Injunctions In Patent Cases, Dariush Keyhani
Buffalo Intellectual Property Law Journal
No abstract provided.
Rights And Remedies Post Ebay V. Mercexchange - Deep Waters Stirred, Robert I. Reis
Rights And Remedies Post Ebay V. Mercexchange - Deep Waters Stirred, Robert I. Reis
Journal Articles
No abstract provided.
The Right To Refuse And The Obligation To Comply: Challenging The Gamesmanship Model Of Criminal Procedure, Margaret Raymond
The Right To Refuse And The Obligation To Comply: Challenging The Gamesmanship Model Of Criminal Procedure, Margaret Raymond
Buffalo Law Review
No abstract provided.