Law Commons^™

Advocacy For Marriage Equality: The Power Of A Broad Historical Narrative During A Transitional Period In Civil Rights, Charles R. Calleros

Charles R. Calleros

Previous civil rights movements in the United States define broad historical patterns that form a narrative helpful to a proper understanding of new controversies. In essence, as a society we often could benefit from a reminder that our actions today will form the history for future generations, who will judge us with benefit of hindsight and a broader perspective. With each new civil rights controversy, we owe it to ourselves and to the victims of discrimination to ask whether we are once again in a period of transition, where conventional mores will soon sound as jarring as Justice Bradley’s concurrence …

Joinder Of Unrelated Infringers As Defendants In Patent Litigation Under The Jurisprudence Of The United States District Court For Eastern District Of Texas—A Critical Review, Ping-Hsun Chen

Ping-Hsun Chen

On September 16, 2011, the American patent system started a new era because of the enactment of the Leahy-Smith America Invents Act (“AIA”). 35 U.S.C. § 299 was enacted to limit district court’s power to permit joinder of unrelated infringers as defendants in a single lawsuit. Before that, district courts apply Rule 20 of the Federal Civil Procedure. The Eastern District of Texas had permitted joinder only because the same patent was infringed. By introducing § 299, Congress intended to abrogate such approach. Later, the Federal Circuit in In re EMC limited the practice of Rule 20 and required a …

Experts, Statistics, Science & Bad Science, Curtis E.A. Karnow

Curtis E.A. Karnow

Articles, books, and other online resources relating to expert testimony with a specific focus on problems with peer review, bad science, and statistics

Hackers Lend Hand To Consortium Defendants, Anthony Longo

Anthony Longo

Mr. Longo analyzes how the Ashley Madison hack impacts the defense of consortium claims in Illinois

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

The Signing Of Court Processes: The Legal Issues Arising And Its Effects On The Administration Of Justice In Nigeria, Oluwaseun Viyon Ojo

Oluwaseun Viyon Ojo

The signing of court processes by a person not known to law has significantly dominated the arena of legal discourse among the legal practitioners and major stakeholders in the legal community. The question of whether a person not known to law (in the light of the Legal Practitioners Act) can validly sign any court process to be adopted in any legal proceeding has generated intense debate and discussions from every angle. The main thrust of the issue relates essentially to whether the ends of justice are better realised where the courts hold that the absence of a named legal practitioner …

Contracts Of Individuals Who Are Incompetent Without Guardianship And The Interpretation Of Article 428 Of The Italian Civil Code: Is The Court Of Cassation Wrong?, Enrico Baffi

enrico baffi

This paper aims at demonstrating that excessive protection of incompetent people can produce unintended negative consequences. Both in the Italian system, which is examined here in depth, and in American common law, a contract can be annulled if there is bad faith of behalf of the party who is not incompetent. However, a party in bad faith could offer an incompetent person a contract that does not produce a prejudice and could, in fact, be beneficial for the incompetent party. If the contract can be annulled, and if the prejudice occasionally occurs, the incompetent party can request a contract annulment. …

Defensa Posesoria Extrajudicial ¿El Artículo 920°, 921° Del C. C. Y El Artículo 603° Del C. P. C. Es Suficiente?, Ronald Benjamin Jallurana Añamuro

RONALD Benjamín Jallurana Añamuro

En rigor, es necesario delinear la naturaleza jurídica de la posesión para fortalecer la defensa posesoria extrajudicial.

Comentario Al Reglamento Sobre El Sistema De Resolución De Controversias En Materia De Consumo, Gabriel Martinez Medrano

Gabriel Martinez Medrano

Comentario crítico del decreto 202/2015 (Argentina) que reglamenta el Sistema de resolucion de controversias en materia de consumo. Se critica la falta de mecanismos para la ejecución de acuerdos conciliatorios y resoluciones administrativas que reconocen derecho a los consumidores.

The Brazilian Appellate Procedure Through Common Law Lenses: How American Standards Of Review May Help Improve Brazilian Civil Procedure, Cesar Zucatti Pritsch

Cesar Zucatti Pritsch

In this article, we address a flaw in Brazilian civil procedure observed in our practice as a Federal Labor Judge in Brazil, an issue that may be addressed by limiting appellate review in a similar fashion as the American courts do, using standards of appellate review.

In Brazil, appellate courts tend to ignore the lower court’s decisions, replacing them for the ruling they would have made had they been the original decision makers. A simple disagreement with the lower court’s findings of fact or discretionary rulings, no matter how reasonable, is sufficient grounds for reversal.

The lack of standards of …

Jones, Lackey, And Teague, Richard Broughton

Richard Broughton

In a recent, high-profile ruling, a federal court finally recognized that a substantial delay in executing a death row inmate violated the Eighth Amendment’s ban on cruel and unusual punishments. Courts have repeatedly rejected these so-called “Lackey claims,” making the federal court’s decision in Jones v. Chappell all the more important. And yet it was deeply flawed. This paper focuses on one of the major flaws in the Jones decision that largely escaped attention: the application of the non-retroactivity rule from Teague v. Lane. By comprehensively addressing the merits of the Teague bar as applied to Lackey claims, and making …

Free Expression, In-Group Bias, And The Court's Conservatives: A Critique Of The Epstein-Parker-Segal Study, Todd E. Pettys

Todd E. Pettys

In a recent, widely publicized study, a prestigious team of political scientists concluded that there is strong evidence of ideological in-group bias among the Supreme Court’s members in First Amendment free-expression cases, with the current four most conservative justices being the Roberts Court’s worst offenders. Beneath the surface of the authors’ conclusions, however, one finds a surprisingly sizable combination of coding errors, superficial case readings, and questionable judgments about litigants’ ideological affiliations. Many of those problems likely flow either from shortcomings that reportedly afflict the Supreme Court Database (the data set that nearly always provides the starting point for empirical …

Complexity In Litigation: A Differential Diagnosis, Curtis E.A. Karnow

Curtis E.A. Karnow

This note examines complex litigation with the goal of providing practical options for its management. It is written from a judge’s perspective. I review the definition of a “complex” case and explain its emphasis on the need for a judge to manage the case, with a focus on enabling settlement. I address a series of specific characteristics or aspects of complex cases, explaining how these affect the progress of the case. Then the note explores the many tools and techniques judges have to manage and ameliorate difficult aspects of complex cases. {Pre-print. Final article as published differs substantially and is …

Preparing For Your Rule 26(F) Conference When Esi Is Involved - And Isn't Esi Always Involved?, Amii N. Castle

Amii n Castle

In most civil cases filed today, discovery is likely to include electronically stored information (“ESI”). This article details the steps counsel must take when a lawsuit filed, and the article gives particularized instruction on ESI at each juncture. The article discusses the following steps: At Step One, the judge issues an initial scheduling order, which puts into motion several deadlines: the Rule 26(f) conference, the date to submit the parties’ planning report, and the Rule 16 Conference. Step Two directs attorneys to talk to their own clients about ESI that is relevant to the case. Questions are suggested, such as: …

The Curious, Perjurious Requirements Of Illinois Supreme Court Rule 12(B)(3)., Wm. Dennis Huber

Wm. Dennis Huber

A 2010 survey of Illinois Civil Procedure discussed recent amendments to the Illinois Supreme Court Rules that apply to civil practice issues.1 The survey began with Notices of Appeal and a substantial part of the survey of Notices of Appeal was devoted to Secura Insurance Co. v. Illinois Farmers Insurance Co.2 The purpose of this Article is to examine in greater depth the requirements of filing notices of appeal under Illinois Supreme Court Rule 12(b)(3) and the corresponding proof of service of Rule 373.

Illinois Supreme Court Rule 12(b)(3) has what can only be called “curious, perjurious requirements.” They are …

Art-Iculating The Analysis: Systemizing The Decision To Use Visuals As Legal Reasoning, Ruth Anne Robbins, Steve Johansen

Ruth Anne Robbins

This Article first assumes that visuals belong and are ethically permitted in legal documents -- something explored by other authors -- and then begins to answer the questions of effective inclusion. The article explores the specific use of analytical visuals, which are those that do not attempt to prove what happened in a legal dispute, but instead help explain how the dispute should be resolved under the legal standards. Thus, the included analytical visual, when used effectively, creates a stronger understanding of the abstract legal analysis. The article suggests a taxonomy for categories of analytical visuals. It also acknowledges that …

Anexo: El Desempeño Como Litigante De La Fne Una Mirada Cuantitativa, Diego G. Pardow

Diego G. Pardow

Technical annex to "El Desempeño como Litigante de la FNE Una Mirada Cuantitativa"

Work Made For Hire – Analyzing The Multifactor Balancing Test, Ryan G. Vacca

Ryan G. Vacca

Authorship, and hence, initial ownership of copyrighted works is oftentimes controlled by the 1976 Copyright Act’s work made for hire doctrine. This doctrine states that works created by employees within the scope of their employment result in the employer owning the copyright. One key determination in this analysis is whether the hired party is an employee or independent contractor. In 1989, the U.S. Supreme Court, in CCNV v. Reid, answered the question of how employees are distinguished from independent contractors by setting forth a list of factors courts should consider. Unfortunately, the Supreme Court did not give further guidance on …

Business Entities - Basic Legal Issues, Curtis E.A. Karnow

Curtis E.A. Karnow

Brief introduction to certain business litigation issues including vicarious liability, sealing records, representation by counsel, qualification of domestic corporations; depositions of persons most knowledgeable, and conflicts of laws.

A Century Of Patent Litigation In Perspective, Ron D. Katznelson

Ron D. Katznelson

When comparing patent litigation rates or “rarity” across decades, one must take into account the proportion to the actual scale of commercial activities that give rise to patent disputes. Such normalizing scales are preferably national metrics of commercial activity such as (a) the number of patents issued in the year, (b) the total number of patents in force over which disputes may arise, (c) the total number of Federal civil suits, or (d) the economic scale of the Gross National Product (GDP) in real dollars. This paper marshals for the first time information on all patent litigation in Federal district …

The Adversarial System, Three Lemons, And Cocaine: The Role Of Confirmation Bias, Curtis E.A. Karnow

Curtis E.A. Karnow

A short note on confirmation bias and cognitive dissonance as it affects decision making by lawyers and judges.

La Transacción En El Proceso Colectivo De Consumidores - Argentina, Gabriel Martinez Medrano

Gabriel Martinez Medrano

Analisis de la Transaccion en el Proceso Colectivo (class action). Estudio de Brasil, EEUU y Argentina. Autor argentino.

Predictibilidad En Materia De Competencia Para Analizar Posibles Vicios Sobre Publicidad Comercial, Javier André Murillo Chávez

Javier André Murillo Chávez

No abstract provided.

The Rules Of Engagement, David D. Butler

David D. Butler

First impressions are the eye of the needle through which all subsequent threads are drawn. Zealous advocates take conrol of the Courtroom even before the prosecution is through the door. Get to the Courtroom first. Secure the table and chairs closer to the jury. Pick up all the chalk by the black board. When the befuddled county attorney is looking for a piece of chalk, hand him or her a nice new piece from the box you have in your attache case. Zealous advocates get to the Courtroom fiirst, with the most. Often, a zealous advocate can lift his or …

Breaking The Ice: How Plaintiffs May Establish Premises Liability In "Black Ice" Cases Where The Dangerous Condition Is By Definition Not Visible Or Apparent To The Property Owner, Hon. Mark Dillon

Hon. Mark C. Dillon

Plaintiffs that are injured as a result of encounters with "black ice," as distinguished from regular ice, face peculiar difficulties in establishing liability against property owners for the dangerous icy conditions on their premises. Black ice results from a unique process under certain conditions by which air bubbles are expelled from water during the freezing process, rendering the ice virtually invisible to the naked eye. Property owners therefore are not typically on actual or constructive notice of black ice conditions as to become subject to the legal requirement of undertaking measures to remedy the conditions. This article explores the law …

N.I.G.G.A., Slumdog, Dyke, Jap, And Heeb: Reconsidering Disparaging Trademarks In A Post-Racial Era, Amanda E. Compton

Amanda E. Compton

Currently registration of disparaging trademarks is prohibited under Section 2(a) of the Lanham Act. Recent events, however, should reinvigorate the debate about the protection and registration of disparaging marks: (1) recent decisions published by the Trademark Trial and Appeal Board (TTAB) that continue to address and highlight the issues surrounding the registration of disparaging marks; (2) a proposed federal act that would not only specifically bar the registration of any trademark that includes the word “redskins,” but would also retroactively cancel any existing registration that consist of or includes that term; and (3) an amendment to a state act that …

You Booze, You Bruise, You Lose: Analyzing The Constitutionality Of Florida’S Involuntary Blood Draw Statute In The Wake Of Missouri V. Mcneely, Francisco D. Zornosa

Francisco D Zornosa

No abstract provided.

The Perverse Effects Of Efficiency In Criminal Process, Darryl K. Brown

Darryl K. Brown

The need for greater efficiency in legal process is an undisputed premise of modern policy, and efficiency’s virtues hardly merit debate, notably by the U.S. Supreme Court. A central part of the story of modern adjudication is the steady gains in case processing efficiency. This, above all else, explains the “vanishing trial” and its replacement by civil settlement and, in criminal courts, by plea bar-gaining.

Defining efficiency in any context, however, is a more complicated endeavor than courts, policymakers, and many commentators commonly acknowledge. It requires first defining ends and means, and even whether a given practice is an end …

"What Did You Say?": Semantic Polysemy In California Juvenile Dependency Dispute Resolution, Kelly X. Ranasinghe

Kelly X Ranasinghe

Non-adversarial resolution of dependency cases is a statutorily mandated practice in California. Practitioners in California Juvenile Dependency courts attempt to settle cases without litigation, relying instead on negotiation between the various parties using informal discourse. This discourse utilizes polysemous dependency terms affecting the contextual understanding of statements by creating underlying ambiguity. The ambiguity of these terms creates communicative interference by engendering misunderstanding, lack of specificity and other communication problems. By recognizing polysemous qualities of core terms used in dependency discourse, practitioners can communicate more effectively and efficiently when resolving cases.

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …