Law Commons^™

Unpacking Patent Assertion Entities (Paes), Christopher A. Cotropia

Law Faculty Publications

In Part I, we explain several theories on why PAEs are beneficial or detrimental to the patent system. These theories outline distinct categories of patent holders who enforce their patents. Transforming the distinct categories into a coding scheme, we detail in Part II the methodology we used to generate the dataset. Part III provides descriptive statistics of 2010 and 2012 patent litigation. We discuss implications of the data, including points of disagreement between our data and the data of others, in Part IV. We also describe some areas of future study, many of which we are presently undertaking. Finally, we …

Education & Practice (Newsletter Of The Section On Education Of Lawyer, Virginia State Bar) - V. 23, No. 1 (Fall 2014), Dale Margolin Cecka

Law Faculty Publications

Contents

Learning Styles and Problem-Solving: What Difference Does Our Teaching Make?, by Eric DeGroff, Professor of Law at Regent University

Chair’s Column, by Professor Jim Moliterno

Section’s Website Update

Law Faculty News

News and Events Around the Commonwealth

CALL FOR NOMINATIONS William R. Rakes Leadership in Education Award

2014-2015 Board of Governors

Nondiscrimination In Insurance: The Next Chapter, Mary L. Heen

Law Faculty Publications

Modern federal civil rights legislation prohibits race and gender discrimination in many important sectors of the American economy, including employment, education, public accommodations, housing, and credit. No comparable comprehensive federal civil rights legislation bans race and gender discrimination in the business of insurance-a business at the core of legal and social organization, culture, and finance. Why not?

Email, Metadata, And Clouds, Oh My! Recent Changes To The Model Rules Of Professional Conduct, Joyce Manna Janto

Law Faculty Publications

A discussion of how the 2012 revisions to the Model Rules of Professional Conduct affect the attorney's duties in handling email: encryption, storage, metadata, and confidentiality.

An Open Access Distribution Tariff: Removing Barriers To Innovation On The Smart Grid, Joel B. Eisen

Law Faculty Publications

This Article proposes that the Federal Energy Regulatory Commission (FERC) consider promulgating an Open Access Distribution Tariff (OADT) to open the nation's electric grid to new products and services at the consumer (distribution) level. Design of the OADT would be comparable to the Open Access Transmission Tariff that the FERC has used previously to open the nation's transmission wires. This Article argues that an OADT is necessary to create a smart electricity network that would be national, multimodal, and interactive. There is no smart electricity network at present, and there are numerous barriers to the development of open networking, such …

Tackling Climate Change: Don't Forget Energy Efficency, Joel B. Eisen

Law Faculty Publications

Todd S. Aagaard and Joel B. Eisen write that one option available for states under the EPA's high-profile Clean Power Plan is relying on greater efficiency in energy usage and other demand-side strategies such as "demand response," which involves programs to reduce consumption at specific times of high electricity demand. However, a federal court recently cast a cloud over demand response's future.

Garbage Everywhere What Refuse In India's Streets Reveals About America's Hidden Trash Problem, Noah M. Sachs

Law Faculty Publications

In early 2014, I arrived in the southern Indian city of Bangalore, which just two years before had been paralyzed by a garbage-worker strike and a severe shortage of landfill space. The municipal government had responded to public anger over uncollected trash with decrees on waste segregation and composting that went unenforced, and by the time I showed up, not much had changed. In the city that bills itself as India’s Silicon Valley, there are still putrid piles of garbage all around town. Bangaloreans accept open dumps in their neighborhoods as a fixture of the landscape, to be seen but …

Education & Practice (Newsletter Of The Section On Education Of Lawyer, Virginia State Bar) - V. 22, No. 2 (Spring 2014), Dale Margolin Cecka

Law Faculty Publications

Contents

The Richmond Legal Development Center: Virginia’s First Legal Incubator, by Eppa Hunton VI, the Managing Director of the Richmond Legal Development Center

From Crisis to Innovation, by Jeffrey Brauch, the Dean of Regent University School of Law

Chair’s Column, by Professor A. Benjamin Spencer of Washington and Lee School of Law

Section’s Website Update

Virginia Supreme Court Senior Justice Elizabeth B. Lacy Receives Leadership in Education Award

Law Faculty News

News and Events Around the Commonwealth

2013-2014 Board of Governors

From The 2014 World Cup To The 2016 Olympics: Brazil's Role In The Global Anti-Corruption Movement, Andrew B. Spalding

Law Faculty Publications

This Comment is the first in a series of publications on Brazil's efforts and, we hope, its successes in reducing corruption in the 2016 Olympic Games. It is written as part of a course at the University of Richmond School of Law entitled "Brazil, Corruption, and the 2016 Summer Olympics"-the co-authors are eight students and their pro- fessor. While the ultimate product will be a comprehensive analysis of the role of Brazilian law in controlling corruption, this Comment has a more modest purpose. It will discuss the various trends and forces that have converged on Brazil's hosting of the Games, …

The Supreme Court Chipping Away At Title Vii: Strengthening It Or Killing It?, Henry L. Chambers, Jr.

Law Faculty Publications

Whether the Court's chipping away at Title VII is an attempt to make Title VII into a 21st century diamond, or an attempt to make it a 21st century pile of diamond dust, or merely an attempt to interpret Title VII consistent with its text is a matter of opinion. This Article explores how the Court is interpreting and reinterpreting Title VII and necessarily considers whether the Court's reinterpretation will likely reinvigorate or damage Title VII' s broad goal of workplace equality. This Article tentatively considers what may be next for Title VII. Part I briefly discusses Title VII's scope. …

Trilogy Redux: Using Arbitration To Rebuild The Labor Movement, Ann C. Hodges

Law Faculty Publications

This Article analyzes the possibility of creating a program to provide representation to workers bound to arbitrate their legal disputes with their employers, while at the same time building a movement to challenge the practice of compulsory arbitration and its impact on workers' rights. First, I briefly review the Supreme Court's recent arbitration jurisprudence and its impact on workers, with a particular focus on the limitations on class actions. Then I move to a discussion of the advantages and challenges to the creation of such a program. Finally, I examine some alternative visions of what such a program might look …

A Strategy To Protect Virginians From Toxic Chemicals, Noah M. Sachs

Law Faculty Publications

This report is divided into two main parts. Part I of this report details the major sources of toxic chemical releases in Virginia. Part II then discusses our recommendations in more detail, outlining a series of reforms that would help the Commonwealth police and reduce the risks from toxic chemicals.

"Why Won't My Homeowners Insurance Cover My Loss?": Reassessing Property Insurance Concurrent Causation Coverage Disputes, Peter N. Swisher

Law Faculty Publications

Property insurance coverage disputes can be extremely complex cases when there are multiple concurrent causes in a causal chain of events and when some of these concurrent causes are covered under the policy language but other concurrent causes are excluded from coverage. To complicate matters enormously, there are no fewer than three different judicial approaches attempting to resolve this concurrent causation interpretive conundrum. Over the past two decades, a number of property insurance companies have attempted to address this interpretive problem contractually by inserting so-called anti-concurrent causation clauses into their property insurance policy language. But these anti-concurrent causation clauses have …

Observations On Macdonald V. Moose, Kevin C. Walsh

Law Faculty Publications

In MacDonald v. Moose, a split panel of the U.S. Court of Appeals for the Fourth Circuit granted a petition for a writ of habeas corpus to undo the state criminal conviction of an adult for soliciting oral sex from a minor. Based on Lawrence v. Texas, the court held a longstanding Virginia prohibition of bestiality and sodomy to be partially facially unconstitutional. Its decision left the bestiality prohibition untouched while holding the sodomy prohibition completely unenforceable, even as applied in cases involving minors.

The panel majority misapplied the deferential standard of review required by Congress for federal habeas …

Trademark Law And Consumer Centrality - Part I, James Gibson

Law Faculty Publications

The conventional wisdom provides two traditional justifications for trademark law. The first is the “consumer protection” rationale. If there were no trademark law, an unknown soft drink manufacturer could freely use Coca-Cola’s COKE trademark on its goods. If it did so, consumers would be defrauded; they would buy the unknown’s products thinking that they were Coca-Cola’s. Trademark law prevents this sort of fraud from occurring and thereby protects consumers from fraud.

The second justification is the “producer incentive” rationale. In the preceding COKE example, it is not just the consumer who is happy that fraud has been prevented. Coca-Cola is …

Transformation, Copyright Infringement, And Fair Use, James Gibson

Law Faculty Publications

A small copyright decision out of the U.S. Court of Appeals for the Seventh Circuit last month has gotten a big reaction from copyright experts. The case is Kienitz v. Sconnie Nation, and it involves an entertaining set of facts.

In the 1960s, there was a young University of Wisconsin student named Paul Soglin, who had an anti-authoritarian streak. He led a number of demonstrations on issues ranging from civil rights to the Vietnam War. Indeed, one particular Vietnam protest, in May 1969, led to his arrest for failure to obey a police officer. That same protest became an annual …

Copyright's Topography: An Empirical Study Of Copyright Litigation, Christopher A. Cotropia, James Gibson

Law Faculty Publications

One of the most important ways to measure the impact of copyright law is through empirical examination of actual copyright infringement cases. Yet scholars have universally overlooked this rich source of data. This study fills that gap through a comprehensive empirical analysis of copyright infringement litigation, examining the pleadings, motions, and dockets from more than nine hundred copyright lawsuits filed from 2005 through 2008. The data we collect allow us to examine a wide variety of copyright issues, such as the rate of settlements versus judgments; the incidence of litigation between major media companies, small firms, and individuals; the kinds …

Traumatic Brain Injury And The Americans With Disabilities Act: Implications For The Social Work Profession, Dale Margolin Cecka

Law Faculty Publications

The practice of social work has been greatly affected by the Americans with Disabilities Act of 1990 (ADA). Title I of the statute prohibits discrimination against people with disabilities, including the increasing number of workers who are returning to work after a traumatic brain injury (TBI). This article examines the extent to which the ADA protects those with TBI from being harassed, being denied reasonable workplace accommodations, or suffering other adverse actions related to perceived discrimination. To do so, it relies on judicial decisions from U.S. federal courts involving alleged workplace discrimination of this population. Implications for social work practice …

Climate Change Triage, Noah M. Sachs

Law Faculty Publications

Climate change is the first global triage crisis. It is caused by the overuse of a severely limited natural resource—the atmosphere’s capacity to absorb greenhouse gases—and millions of lives depend on how international law allocates this resource among nations.

This Article is the first to explore solutions for climate change mitigation through the lens of triage ethics, drawing on law, philosophy, moral theory, and economics. The literature on triage ethics—developed in contexts such as battlefield trauma, organ donation, emergency medicine, and distribution of food and shelter—has direct implications for climate change policy and law, yet it has been overlooked by …

Fair Use And The Faces Of Transformation, Part I, James Gibson

Law Faculty Publications

The recent Kienitz v. Sconnie Nation case has been the focus of three recent posts in this Intellectual Property Issues series – from me, Doug Lichtman, and Rod Smolla. In Kienitz, the defendant changed a photograph of the mayor of Madison, Wisconsin, into a stylized, high-contrast image, printed on t-shirts that mocked the mayor’s policies. The U.S Court of Appeals for the Seventh Circuit held that the new image constituted a fair use and therefore did not infringe the photograph’s copyright. (The original photo and the stylized version on the t-shirt can be seen here.) …

Not My Job: Determining The Bounds Of Public Employee Protected Speech, Stephen Allred

Law Faculty Publications

This article reviews the Supreme Court’s rulings in public employee free speech cases, discusses the significant departure from precedent that Garcetti made to those cases, summarizes the Court’s most recent ruling in Lane, and argues that the Court should return to the broader standard the Court originally announced in Pickering.

Using International Law In Somalia’S Post- Conflict Reconstruction, Chiara Giorgetti

Law Faculty Publications

For the first time since 1991, Somalia has an internationally- recognized government. Established in August 2012, the Somali Federal Government (SFG) has been officially recognized by many nations and international organizations. The process of bringing Somalia fully back into the international community, however, remains long and complex. This Article argues that, in order to be successful, Somalia’s reconstruction must include a robust international law component. By mandating frameworks for action and establishing best practices, international law should guide and strengthen reconstruction efforts.

Abolish Anonymous Reporting To Child Abuse Hotlines, Dale Margolin Cecka

Law Faculty Publications

Part I of this Article traces the history of child abuse reporting hotlines. Part II describes the current law and practice behind child abuse reporting hotlines. Part III examines why anonymous reporting by the public is unnecessary and highly susceptible to abuse. Part IV analyzes the constitutional rights at stake in anonymous reporting, citing federal case law that contradicts current practice. Part V concludes with a proposal to abolish anonymous reporting and require all public reporting hotlines to adhere to published, written policies.

Formerly Manufacturing Entities: Piercing The "Patent Troll" Rhetoric, Kristen Jakobsen Osenga

Law Faculty Publications

Everyone hates patent trolls-those companies that "hijack somebody else's idea" and use the patents to "extort some money" from companies that actually make things. But, despite the rhetoric, not all patent trolls are created equal. This Article is the first to focus on one type of patent troll the formerly manufacturing entity. These patent trolls used to make or do something in commerce, but now derive all or a significant portion of their income through licensing their intellectual property. Using case study analysis, this Article demonstrates that formerly manufacturing entities do not impose the harms associated with patent trolls more …

Public Policy Research & Drafting: A Pro Bono And Law Library Collaboration, Tara L. Casey, Suzanne B. Corriell

Law Faculty Publications

As the Carrico Center for Pro Bono Service at the University of Richmond School of Law continued to grow its programs, forays into the areas of public policy and advanced legal research grew as well. for a number of years, our law students volunteered with nonprofit organizations during the General Assembly session, learning firsthand how issues develop into policy, which sometimes then develops into Jaw. This experience required our students to expand their legal research and writing skills beyond the traditional case law and brief writing methods. Furthermore, a growing number of students were interested in pursuing legislative or public …

The Categorical Lucas Rule And The Nuisance And Background Principles Exception, Carol N. Brown

Law Faculty Publications

This article examines the seminal 1992 United States Supreme Court decision, Lucas v. South Carolina Coastal Council, 1 specifically focusing on the Lucas nuisance exception. I surveyed approximately 1,600 reported regulatory takings cases decided since the Lucas decision involving Lucas takings challenges. I identified the statutory nuisance cases in which state and local governments unsuccessfully asserted the Lucas nuisance exception as a defense to the courts' findings of a Lucas taking. This article examines the prospective potential of these cases for assisting private property owners in enhancing private property rights protections within the area of regulatory takings.

Judge Posner, Judge Wilkinson, And Judicial Critique Of Constitutional Theory, Kevin C. Walsh

Law Faculty Publications

Judge Richard Posner's well-known view is that constitutional theory is useless. And Judge J Harvie Wilkinson III has lambasted constitutional theory for the way in which its "cosmic" aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson-in the popular press, in law review articles, and in books-have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson also deny that …

Still Aiming At The Wrong Target: A Case For Business Method And Software Patents From A Business Perspective, Kristen Jakobsen Osenga

Law Faculty Publications

In Part I, I briefly discuss the rise and recent fall of business method patents. Part II covers the scholarly literature discussing business method and software patents. In Part III, I explain the proxy argument that I have made elsewhere and show how it plays in the recent decisions surrounding the patent eligibility of business method and software inventions. I then explain why the analysis of business method and software patents in the literature uses the same proxy-type arguments to avoid more difficult questions of patentability and policy. Finally, I conclude by explaining how business method and software patents, if …

Predicting A Heart Attack: The Fundamental Opacity Of Extreme Liquidity Risk, William O. Fisher

Law Faculty Publications

After 150 years of business, Lehman Brothers ran out of cash and credit and filed for bankruptcy on September 15, 2008. As a publicly traded company, Lehman had filed all the reports required by U.S. securities law. But the hundreds of pages of words and numbers provided no timely warning of lurking liquidity death. The risks of triparty repurchase financing and the endgame Lehman would have to play if a selfmagnifying credit drain hit were, as it turned out, inherently opaque. Disclosure, the traditional securities law “fix,” was destined to fail in this case, raising the question of whether it …

Filling The District Of Arizona Vacancies, Carl W. Tobias

Law Faculty Publications

The judicial vacancy crisis must end. The federal bench has experienced nearly a ten percent vacancy rate over an unprecedented four and a half-year period. The substantial number and protracted character of those openings have imposed numerous detrimental effects. These phenomena have delayed the scheduling of jury trials in many civil cases and even propelled termination of some litigation because the Speedy Trial Act requires that criminal matters have precedence. Indeed, the emergency designation has meant that some criminal proceedings were delayed in the Arizona District. The vacancy crisis places additional pressure on sitting judges, particularly the eight senior judges …