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Full-Text Articles in Law

Access To Information, Access To Justice: The Role Of Presuit Investigatory Discovery, Lonny Sheinkopf Hoffman Dec 2007

Access To Information, Access To Justice: The Role Of Presuit Investigatory Discovery, Lonny Sheinkopf Hoffman

University of Michigan Journal of Law Reform

What is the relationship between access to information and access to justice? Private parties obviously have many publicly available points of access to the information they seek in order to file a lawsuit. Lawyers can talk to their clients and other willing witnesses. Documents can be gathered. Specific statutes may sometimes permit information to be obtained before a formal lawsuit is brought. On other occasions, however, information needed or desired will lie solely within the exclusive knowledge and control of another The ability of private parties to compel the production of information, documents, or testimony before litigation rarely has been ...


The Era Of Deference: Courts, Expertise, And The Emergence Of New Deal Administrative Law, Reuel E. Schiller Dec 2007

The Era Of Deference: Courts, Expertise, And The Emergence Of New Deal Administrative Law, Reuel E. Schiller

Michigan Law Review

The first two terms of Franklin Roosevelt's presidency (1933-1941) were periods of great administrative innovation. Responding to the Great Depression, Congress created scores of new administrative agencies charged with overseeing economic policy and implementing novel social welfare programs. The story of the constitutional difficulties that some of these policy innovations encountered is a staple of both New Deal historiography and the constitutional history of twentieth-century America. There has been very little writing, however, about how courts and the New Deal-era administrative state interacted after these constitutional battles ended. Having overcome constitutional hurdles, these administrative agencies still had to interact ...


Exclusion Confusion? A Defense Of The Federal Circuit's Specific Exclusion Jurisprudence, Peter Curtis Magic Nov 2007

Exclusion Confusion? A Defense Of The Federal Circuit's Specific Exclusion Jurisprudence, Peter Curtis Magic

Michigan Law Review

Specific exclusion has become a controversial limitation on the doctrine of equivalents, which is itself an essential and controversial area of patent law. The doctrine of equivalents allows a patentee to successfully claim infringement against devices that are outside of the literal reach of the language used by the patentee in her patent to describe what she claims as her invention. The Supreme Court has prescribed some of the outer limits of the doctrine of equivalents and articulated the underlying policy concerns that inform its analysis-noting that courts should balance protection of the patentee's intellectual property with the public ...


Trolling For Trolls: The Pitfalls Of The Emerging Market Competition Requirement For Permanent Injunctions In Patent Cases Post-Ebay, Benjamin H. Diessel Nov 2007

Trolling For Trolls: The Pitfalls Of The Emerging Market Competition Requirement For Permanent Injunctions In Patent Cases Post-Ebay, Benjamin H. Diessel

Michigan Law Review

In eBay v. MercExchange, a unanimous Supreme Court announced that a new four-factor test should be employed by district courts in determining whether to award an injunction or damages to an aggrieved party whose intellectual property has been infringed. In the context of permanent injunctions in patent cases, district courts have distorted the four-factor test resulting in a "market competition requirement." Under the new market competition requirement, success at obtaining an injunction is contingent upon a party demonstrating that it is a market competitor After consistent application in the first twenty-five district court cases post-eBay, the market competition requirement is ...


Juvenile Justice: The Nathaniel Abraham Murder Case, Eugene Arthur Moore Oct 2007

Juvenile Justice: The Nathaniel Abraham Murder Case, Eugene Arthur Moore

University of Michigan Journal of Law Reform

Once in a while, a case will come along that has such an enormous impact on the law that it is certain to draw attention. One such case was the Nathaniel Abraham murder case----a case involving the sentencing of a young eleven-year-old child in a system designed for older juvenile offenders, which demonstrated some of the novel and important issues facing the juvenile courts today. With the onset of such issues, the Juvenile Justice System has developed into a complex field of vital importance. Investing in the Juvenile Justice System allows us to invest in our future. Although frequently viewed ...


Troubled Children And Children In Trouble: Redefining The Role Of The Juvenile Court In The Lives Of Children, Ann Reyes Robbins Oct 2007

Troubled Children And Children In Trouble: Redefining The Role Of The Juvenile Court In The Lives Of Children, Ann Reyes Robbins

University of Michigan Journal of Law Reform

This Essay considers the emerging research in the area of dual-jurisdiction children, often referred to as "crossover kids "-those currently or previously involved in maltreatment proceedings who have also committed delinquent acts. Part I describes the development of the juvenile courts in the early twentieth century. Part II of this Essay questions the need to "track" children along one legal path or another and points to the pitfalls of providing services to some children through a criminal justice paradigm instead of treating all children through a social work paradigm. Finally, Part III advocates a redesign of the juvenile court- a ...


Looking Ahead: A Personal Vision Of The Future Of Child Welfare Law, Donald N. Duquette Oct 2007

Looking Ahead: A Personal Vision Of The Future Of Child Welfare Law, Donald N. Duquette

University of Michigan Journal of Law Reform

The participants in the Thirtieth Anniversary Celebration of the Child Advocacy Law Clinic were all challenged to envision the future of child welfare and to address these questions: What should the law and legal institutions governing children's rights and child and family welfare look like in thirty more years? What steps are necessary to achieve those goals? After setting out the historical and optimistic circumstance in which the Child Advocacy Law Clinic was founded, this Article responds to the organizing questions by presenting the author's vision of the future of child welfare law and practice. When families fail ...


Reading Too Much Into Reeder-Simco?, Jeremy M. Suhr Oct 2007

Reading Too Much Into Reeder-Simco?, Jeremy M. Suhr

Michigan Law Review

This Note argues that a careful analysis of the Supreme Court's opinion in Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc. demonstrates that, despite the expansive dicta appearing in part IV of that opinion, the Court did not intend to reshape the course of its Robinson-Patman Act jurisprudence in any significant way. The Court's opinion operated well within the confines of established Robinson-Patman Act doctrine, even if its searching review of the evidence presented at trial represented a rare foray into the arena of factual error correction. After Reeder-Simco, however, many commentators emphasized the dicta in part ...


Significant Developments In Veterans Law (2004-2006) And What They Reveal About The U.S. Court Of Appeals For Veterans Claims And The U.S. Court Of Appeals For The Federal Circuit, Michael P. Allen May 2007

Significant Developments In Veterans Law (2004-2006) And What They Reveal About The U.S. Court Of Appeals For Veterans Claims And The U.S. Court Of Appeals For The Federal Circuit, Michael P. Allen

University of Michigan Journal of Law Reform

Nearly twenty years ago, Congress for the first time created a system for judicial review of decisions denying veterans benefits. Specifically, Congress created an Article I Court: the United States Court of Appeals for Veterans Claims. Veterans dissatisfied with actions of the Department of Veterans Affairs regarding benefits could appeal to the Veterans Court. The United States Court of Appeals for the Federal Circuit provided appellate oversight of the Veterans Court. There simply is nothing like the Veterans Court elsewhere in American law. Yet, despite its uniqueness, there has been little scholarly attention to this institution.

This Article begins to ...


Standing Alone: Conformity, Coercion, And The Protection Of The Holdout Juror, Jason D. Reichelt May 2007

Standing Alone: Conformity, Coercion, And The Protection Of The Holdout Juror, Jason D. Reichelt

University of Michigan Journal of Law Reform

The holdout juror in felony criminal trials is a product of the near-universal decision rule in federal and state courts of a unanimous verdict. In recent years, courts have increasingly inquired into a jury's deliberations when a holdout juror has been identified amid allegations of misconduct. This Article helps bridge the considerable gap between cognitive psychology and legal scholarship, analyzing the thought processes of the holdout juror through the application of empirical evidence and psychological modeling, to conclude that the improved protection of the holdout juror is a necessary and critical component to the preservation of a defendant's ...


Proximate Cause In Constitutional Torts: Holding Interrogators Liable For Fifth Amendment Violations At Trial, Joel Flaxman May 2007

Proximate Cause In Constitutional Torts: Holding Interrogators Liable For Fifth Amendment Violations At Trial, Joel Flaxman

Michigan Law Review

This Note argues for the approach taken by the Sixth Circuit in McKinley: a proper understanding of the Fifth Amendment requires holding that an officer who coerces a confession that is used at trial to convict a defendant in violation of the right against self-incrimination should face liability for the harm of conviction and imprisonment. Part I examines how the Supreme Court and the circuits have applied the concept of common law proximate causation to constitutional torts and argues that lower courts are wrong to blindly adopt common law rules without reference to the constitutional rights at stake. It suggests ...


Keeping The Door Ajar For Foreign Plaintiffs In Global Cartel Cases After Empagran, Jeremy M. Suhr Feb 2007

Keeping The Door Ajar For Foreign Plaintiffs In Global Cartel Cases After Empagran, Jeremy M. Suhr

Michigan Law Review

In many ways, the Supreme Court's opinion of F. Hoffmann-LaRoche Ltd. V. Empagran S.A. raised more questions than it answered. Growing out of the massive international vitamins cartel uncovered in the 1990s, Empagran presented a scenario in which all parties were foreign and all conduct occurred abroad. Although it is "well established by now that the Sherman Act applies to foreign conduct that was meant to produce and did in fact produce some substantial effect in the United States," Empagran presented the Court with the first truly foreign antitrust case. It involved not only foreign conduct, but also ...


Scrutinizing The Second Amendment, Adam Winkler Feb 2007

Scrutinizing The Second Amendment, Adam Winkler

Michigan Law Review

One overlooked issue in the voluminous literature on the Second Amendment is what standard of review should apply to gun control if the Amendment is read to protect an individual right to bear arms. This lack of attention may be due to the assumption that strict scrutiny would necessarily apply because the right would be "fundamental" or because the right is located in the Bill of Rights. In this Article, Professor Winkler challenges that assumption and considers the arguments for a contrary conclusion: that the Second Amendment's individual right to bear arms is appropriately governed by a deferential, reasonableness ...


Mostly Harmless: An Analysis Of Post-Aedpa Federal Habeas Corpus Review Of State Harmless Error Determinations, Jeffrey S. Jacobi Feb 2007

Mostly Harmless: An Analysis Of Post-Aedpa Federal Habeas Corpus Review Of State Harmless Error Determinations, Jeffrey S. Jacobi

Michigan Law Review

Sixty years ago, in Kotteakos v. United States, the Supreme Court ruled that a small class of so-called harmless errors committed by courts did not require correction. The Court acknowledged that some judicial errors, though recognizable as errors, did not threaten the validity of criminal convictions and therefore did not quite require reversal. Specifically, the Court held that errors that violated federal statutes should be deemed harmless unless they had a "substantial and injurious effect or influence in determining the jury's verdict." While Kotteakos represented the Supreme Court's first treatment of the concept of harmlessness, other courts had ...


Twins Or Triplets?: Protecting The Eleventh Amendment Through A Three-Prong Arm-Of-The-State Test, Héctor G. Bladuell Feb 2007

Twins Or Triplets?: Protecting The Eleventh Amendment Through A Three-Prong Arm-Of-The-State Test, Héctor G. Bladuell

Michigan Law Review

In 1999, the Supreme Court held that the common law principle that the sovereign cannot be sued in its own courts without its consent was embedded in the Constitution's structure when it was ratified. The Court, however, has not always adhered to this view. In 1793, when a citizen of South Carolina sued the State of Georgia to enforce a debt arising from the sale of Revolutionary War supplies, the Court ordered the State to fulfill its obligation even though the State had not consented to the suit. Alarmed by the sudden opening of their treasuries to federal courts ...


Making Sense Of Ksr And Other Recent Patent Cases, Harold C. Wegner Jan 2007

Making Sense Of Ksr And Other Recent Patent Cases, Harold C. Wegner

Michigan Law Review First Impressions

The recent Supreme Court review of KSR International Inc. v. Teleflex Inc., eBay Inc. v. MercExchange LLC, and Microsoft Corp. v. AT&T Corp. manifests the Court’s current interest in the patent jurisprudence of the Fed-eral Circuit. Now it is evident that the Court has a level of concern sufficient to guarantee the possibility of grant of certiorari—whereas formerly a case could rarely generate sufficient interest for review. For long-range impor-tance in patent law, KSR stands alone as the single most important Supreme Court patent decision on the bread and butter standard of “obviousness” in the more than ...


Patent Injunctions And The Problem Of Uniformity Cost, Michael W. Carroll Jan 2007

Patent Injunctions And The Problem Of Uniformity Cost, Michael W. Carroll

Michigan Telecommunications & Technology Law Review

In eBay v. MercExchange, the Supreme Court correctly rejected the Federal Circuit's general rule requiring that a permanent injunction follow from a finding that a patent is valid and infringed. Recognizing that one size does not fit all in patent law, the Court returned traditional equitable discretion to the district courts. With this discretion, district courts can now deploy remedies for patent infringement that are sensitive to relevant differences among industries, technologies, and entities. This Essay sets the Court's rejection of a uniform remedial regime in a larger context concerning the role of uniformity in patent law. It ...


Restoring The Genetic Commons: A Common Sense Approach To Biotechnology Patents In The Wake Of Ksr V. Teleflex , Anna Bartow Laakmann Jan 2007

Restoring The Genetic Commons: A Common Sense Approach To Biotechnology Patents In The Wake Of Ksr V. Teleflex , Anna Bartow Laakmann

Michigan Telecommunications & Technology Law Review

In this Article, I argue that a new approach to biotechnology patenting is necessary to fully realize the tremendous potential of recent advances in our understanding of the human genome. Part I places the gene patenting debate in context by highlighting the key landmarks that have shaped the biotechnology industry and outlining the products and stakeholders that comprise the industry. Part II describes the current state of the law on biotechnology patents, summarizing the Federal Circuit's application of the various doctrines that collectively define the patent landscape's parameters. In this Part, I explain how the Federal Circuit's ...


What Is Hiding In The Bushes - Ebay's Effect On Holdout Behavior In Patent Thickets, Gavin D. George Jan 2007

What Is Hiding In The Bushes - Ebay's Effect On Holdout Behavior In Patent Thickets, Gavin D. George

Michigan Telecommunications & Technology Law Review

Importantly, at least a few relevant patent holders are inevitably left out of an industry organization's collection of patents. These left-out patent holders, known as "holdouts," can undermine the collective arrangement with demand letters and infringement suits.[...] The first part of this Note explains why holdouts exist in the first place, given the benefits of joining an organization of collected patents. In the second part of this Note, I explore the lack of legal protections against holdout demands offered by pre-eBay patent law. The third part of this Note introduces the eBay decision as revolutionary addition to list of ...


Now That The Courts Have Beaten Congress To The Punch, Why Is Congress Still Punching The Patent System?, Robert A. Armitage Jan 2007

Now That The Courts Have Beaten Congress To The Punch, Why Is Congress Still Punching The Patent System?, Robert A. Armitage

Michigan Law Review First Impressions

The U.S. House of Representatives began September by passing the Patent Reform Act of 2007. This bill, if enacted, would make major changes to U.S. patent law. Given the universally recognized need for improvements to the U.S. patent system, passing a patent reform bill in the House should have been easy. It was not. The Patent Reform Act of 2007 made it through the House only after a spirited debate. There were a host of complaints by House members that the bill was not ready for floor action. In the end, it passed the House by a ...


Ksr V. Teleflex: Predictable Reform Of Patent Substance And Procedure In The Judiciary, John F. Duffy Jan 2007

Ksr V. Teleflex: Predictable Reform Of Patent Substance And Procedure In The Judiciary, John F. Duffy

Michigan Law Review First Impressions

Though KSR International Co. v. Teleflex, Inc. is now widely acknowl-edged in the bar and the academy to be the most significant patent case in at least a quarter century, that view dramatically underestimates the impor-tance of the decision. The KSR decision has immense significance not merely because it rejected the standard of patentability that had been applied in the lower courts for decades, but also because it highlights many separate trends that are reshaping the patent system. This Commentary will touch upon four such trends that are clearly evi-dent in KSR. First, the case was a predictable continuation of ...


Ksr's Effect On Patent Law, Stephen G. Kunin, Andrew K. Beverina Jan 2007

Ksr's Effect On Patent Law, Stephen G. Kunin, Andrew K. Beverina

Michigan Law Review First Impressions

The Supreme Court in KSR International Co. v. Teleflex Inc. clarified its 1966 decision in Graham v. John Deere, avoiding the sea change to a synergy- based standard that many had expected—and perhaps feared. KSR has raised the bar set in Graham for seeking patent protection—by providing a flexible test for obviousness—while simultaneously making it easier for accused infringers to defend themselves. Moreover, KSR will change the strategies of both patent prosecutors and litigators. Before KSR, the Supreme Court’s last major decision on nonobviousness under 35 U.S.C. § 103 was Graham, in which the Court ...


A Gambling Paradox: Why An Origin-Neutral 'Zero-Quota' Is Not A Quota Under Gats Article Xvi, Donald H. Regan Jan 2007

A Gambling Paradox: Why An Origin-Neutral 'Zero-Quota' Is Not A Quota Under Gats Article Xvi, Donald H. Regan

Articles

In US-Gambling, the Appellate Body held that an origin-neutral prohibition on remote gambling (which is how they mostly viewed the United States law) was "in effect" a "zero-quota", and that such a "zero-quota" violated GATS Article XVI:2. That holding has been widely criticized, especially for what critics refer to as the Appellate Body's "effects test". This article argues that the Appellate Body's "in effect" analysis is not an "effects test" and is not the real problem. The real mistake is regarding a so-called "zero-quota" as a quota under Article XVI. That is inconsistent with the ordinary meaning ...


The Kerr Principle, State Action, And Legal Rights, Donald J. Herzog Jan 2007

The Kerr Principle, State Action, And Legal Rights, Donald J. Herzog

Articles

A Baltimore library refused to admit Louise Kerr to a training program because she was black. Not that it had anything against blacks, but its patrons did. When Kerr launched a civil suit against the library alleging a violation of equal protection of the laws, the courts credited the library's claim that it had no racist purpose, but Kerr still prevailed-even though the case occurred before Title VII and Brown v. Board of Education. Here a neutral and generally applicable rule ("serve the patrons"), when coupled with particular facts about private parties (the white patrons dislike blacks), yielded an ...


Reviving The Right To Vote, Ellen D. Katz Jan 2007

Reviving The Right To Vote, Ellen D. Katz

Articles

Losers in partisan districting battles have long challenged the resulting districting plans under seemingly unrelated legal doctrines. They have filed lawsuits alleging malapportionment, racial gerrymandering, and racial vote dilution, and they periodically prevail. Many election law scholars worry about these lawsuits, claiming that they needlessly "racialize" fundamentally political disputes, distort important legal doctrines designed for other purposes, and provide an inadequate remedy for a fundamentally distinct electoral problem. I am not convinced. This Article argues that the application of distinct doctrines to invalidate or diminish what are indisputably partisan gerrymanders is not necessarily problematic, and that the practice may well ...


The Supreme Court And The Federal Circuit: Visitation And Custody Of Patent Law, Rebecca S. Eisenberg Jan 2007

The Supreme Court And The Federal Circuit: Visitation And Custody Of Patent Law, Rebecca S. Eisenberg

Articles

The U.S. Supreme Court’s relationship to patent law sometimes seems like that of a non-custodial parent who spends an occasional weekend with the kids. The custodial parent is, of course, the U.S. Court of Appeals for the Federal Circuit. The Federal Courts Improvement Act of 1982 consolidated intermediate appellate jurisdiction over patent law cases in this single court, which hears appeals from the U.S. Patent and Trademark Office (“PTO”), the U.S. District Courts, the U.S. Court of Federal Claims, and the U.S. In-ternational Trade Commission. Day to day it is the Federal Circuit ...


The Puzzle Of Complete Preemption, Gil Seinfeld Jan 2007

The Puzzle Of Complete Preemption, Gil Seinfeld

Articles

Part I introduces the central themes in the law of federal question jurisdiction. It describes the prevailing interpretations of the constitutional and statutory texts governing the federal courts' jurisdiction to adjudicate disputes involving questions of federal law, and it explores the reasons for the establishment of such jurisdiction. This Part also introduces the well-pleaded complaint rule and examines the reasons for its adoption by the Supreme Court. Part II provides a detailed account of complete preemption doctrine, under which parties are permitted to usher state-law claims into the federal courts despite the apparent absence of any federal question on the ...


Crawford, Davis, And Way Beyond, Richard D. Friedman Jan 2007

Crawford, Davis, And Way Beyond, Richard D. Friedman

Articles

Until 1965, the Confrontation Clause of the Sixth Amendment to the United States Constitution hardly mattered. It was not applicable against the states, and therefore had no role whatsoever in the vast majority of prosecutions. Moreover, if a federal court was inclined to exclude evidence of an out-of-court statement, it made little practical difference whether the court termed the statement hearsay or held that the evidence did not comply with the Confrontation Clause.


Forfeiture Of The Confrontation Right After Crawford And Davis, Richard D. Friedman Jan 2007

Forfeiture Of The Confrontation Right After Crawford And Davis, Richard D. Friedman

Articles

So my topic this morning is on forfeiture of the confrontation right, which I think plays a central role in confrontation doctrine. And to try to present that, let me state the entirety of confrontation doctrine as briefly as I can. This is, at least, what I think the doctrine is and what it can be: A testimonial statement should not be admissible against an accused to prove the truth of what it asserts unless the accused either has had or will have an opportunity to confront the witness-which should occur at trial unless the witness is then unavailable-or has ...


Crawford And Davis: A Personal Reflection, Richard D. Friedman Jan 2007

Crawford And Davis: A Personal Reflection, Richard D. Friedman

Articles

I have to say that when I stood up to argue Hammon I felt the wind at my back. I was basically a lawyer with an easy case, and there wasn't anything particularly unpredictable at the argument of Hammon. Now it got a little bit interesting, as I will explain later, because to a certain extent I was trying to argue the other case as well. But Hammon itself was sort of ordinary, normal law.