Law Commons^™

Contracting In The Age Of The Internet Of Things: Article 2 Of The Ucc And Beyond, Stacy-Ann Elvy

Articles & Chapters

This Article analyzes the global phenomenon of the Internet of Things (“IOT”) and its potential impact on consumer contracts for the sale of goods. Recent examples of IOT products include Amazon’s Dash Replenishment Service, which allows household devices to automatically reorder goods. By 2025, the IOT is estimated to have an economic impact of as much as $11.1 trillion. To date, there are approximately fifteen billion interconnected devices, and by 2020, there will be fifty billion such devices worldwide. IOT devices will revolutionize the way that consumers shop for consumable supplies and other goods. Consumers will no longer need to …

Energy Derivatives: Which Country (U.S. Or U.K.) Provides The Best Customer Asset Protections To An Energy Trading Firm If Its Brokerage Firm/Counterparty Files For Bankruptcy, Ronald H. Filler

Articles & Chapters

No abstract provided.

An Empirical Study Of Modification And Termination Of Conservation Easements: What The Data Suggest About Appropriate Legal Rules, Gerald Korngold, Semida Munteanu, Lauren Smith

Articles & Chapters

The acquisition of conservation easements by nonprofit organizations (“NPOs”) over the past twenty-five years has revolutionized the preservation of American land. Recently, however, legislatures, courts, practitioners, and commentators have debated whether and how conservation easements should be modified and even terminated. The discussion has almost always been on a theoretical level without empirical grounding and has sometimes generated much heat but little light. The discussion has lacked the necessary empirical context to allow legislatures and courts to thoughtfully develop resolutions to these issues free from sloganeering and posturing.

This article provides and analyzes a previously uncollected dataset that offers guidance …

Judicial Externships, Mariana Hogan, Michael Roffer

Articles & Chapters

No abstract provided.

Contemplating The Gap-Filling Role Of Social Intrapreneurship, Tamara Belinfanti

Articles & Chapters

Social intrapreneurs occupy an intersectional space within the large corporate form at the crossroads of innovation, profit, and social good. They are often described as "disruptive" because they devise new ways to tackle problems, usually social in nature, in a manner that disrupts traditional operating models or long-standing assumptions. Although much has been written about social intrapreneurs in managerial literature, legal literature has been silent. This Article reverses that trend and develops a theory of social intrapreneurship from a corporate law perspective. Specifically, this Article posits that social intrapreneurship in terms of praxis, characteristics, and process can be conceptualized as …

Tort Reform: Blocking The Courthouse Door And Denying Access To Justice, Joanne Doroshow

Articles & Chapters

No abstract provided.

The Struggle For The Rule Of Law In South Africa (Symposium: Twenty Years Of South African Constitutionalism: Constitutional Rights, Judicial Independence And The Transition To Democracy), Stephen J. Ellmann

Articles & Chapters

No abstract provided.

Capitalism And Risk: Concepts, Consequences, And Ideologies, Edward A. Purcell

Articles & Chapters

Politically charged claims about both "capitalism" and "risk" became increasingly insistent in the late twentieth century. The end of the post-World War II boom in the 1970s and the subsequent breakup of the Soviet Union inspired fervent new commitments to capitalist ideas and institutions. At the same time structural changes in the American economy and expanded industrial development across the globe generated sharpening anxieties about the risks that those changes entailed. One result was an outpouring of roseate claims about capitalism and its ability to control those risks, including the use of new techniques of "risk management" to tame financial …

Advocacy At The Leading Edge Of Social Change: The Importance Of Front Line Innovators, Frank W. Munger

Articles & Chapters

No abstract provided.

Do We Need Subject Matter-Specific Pedagogies?, Kris Franklin

Articles & Chapters

No abstract provided.

Behind The Nylon Curtain: Social Cohesion, Law, And The Disaggregation Of American Culture, Rebecca Roiphe, Doni Gewirtzman

Articles & Chapters

No abstract provided.

Commentary On Evan Mckenzie, The Relationship Between The Rise Of Private Communities And Increasing Socioeconomic Stratification, Gerald Korngold

Articles & Chapters

No abstract provided.

When All Else Fails: The Evolution Of Customer Asset Protections After Brokerage Bankruptcy, Ronald H. Filler

Articles & Chapters

No abstract provided.

Merchants And Thieves, Hungry For Power: Prosecutorial Misconduct And Passive Judicial Complicity In Death Penalty Trials Of Defendants With Mental Disabilities, Michael L. Perlin

Articles & Chapters

In spite of the Supreme Court’s decisions in Ford v. Wainwright (1986), Atkins v. Virginia (2002), and Hall v. Florida (2014), persons with severe psychosocial and intellectual disabilities continue to be given death sentences, in some cases leading to actual execution. Although the courts have been aware of this for decades -- dating back at least to the infamous Ricky Rector case in Arkansas -- these base miscarriages of justice continue and show no sign of abating. Scholars have written clearly and pointedly on this issue (certainly, more frequently since the Atkins decision in 2002), but little has changed.

I …

"Mr. Bad Example": Why Lawyers Need To Embrace Therapeutic Jurisprudence To Root Out Sanism In The Representation Of Persons With Mental Disabilities, Michael L. Perlin

Articles & Chapters

Litigants with mental disabilities are taken less seriously by their own lawyers, trivialized by opposing counsel, and disparaged by judges. This is largely a result of “sanism,” an irrational prejudice of the same quality and character of other irrational prejudices such as racism, sexism or homophobia. Recognizing and combatting sanism creates extra burdens on lawyers who do seek to provide effective counsel for this population. Such lawyers need special tools to combat sanism, and we believe that lawyering skills rooted in therapeutic jurisprudence provide the best foundation through which to create a positive psychology of persuasion in this representation. Our …

In The Wasteland Of Your Mind: Criminology, Scientific Discovieries And The Criminal Process, Michael L. Perlin, Alison Lynch

Articles & Chapters

This paper addresses a remarkably-underconsidered topic: the potential impact of scientific discoveries and an increased understanding of the biology of human behavior on sentencing decisions in the criminal justice system, specifically, the way that sentencing has the capacity to rely on scientific evidence (such as brain imaging) as a mitigating factor (or perhaps, in the mind of some, as an aggravating factor) in determining punishment.

Such a new method of evaluating criminality, we argue, can be beneficial not only for the defendant, but also for the attorneys and judge involved in the case. If used properly, it may help to …

Your Corrupt Ways Had Finally Made You Blind: Prosecutorial Misconduct And The Use Of Ethnic Adjustments In Death Penalty Cases Of Defendants With Intellectual Disabilities, Michael L. Perlin

Articles & Chapters

In a recent masterful article, Professor Robert Sanger revealed that, since the Supreme Court's decision in Atkins v. Virginia, some prosecution experts have begun using so-called "ethnic adjustments" to artificially raise minority defendants' IQ scores, making such defendants-who would otherwise have been protected by Atkins and, later, by Hall v. Florida-eligible for the death penalty. Sanger accurately concluded that ethnic adjustments are not logically or clinically appropriate when computing a person's IQ score for Atkins purposes. He relied further on epigenetics to demonstrate that environmental factors-such as childhood abuse, poverty, stress, and trauma-can cause decreases in actual IQ scores, and …

Justice Harlan's Enduring Importance For Current Civil Liberties Issues, From Marriage Equality To Dragnet Nsa Surveillance, Nadine Strossen

Articles & Chapters

No abstract provided.

Freedom Of Speech And Equality: Do We Have To Choose?, Nadine Strossen

Articles & Chapters

No abstract provided.

Protecting Products Versus Platforms, Jacob S. Sherkow

Articles & Chapters

Patents have long been the most important legal assets of biotech companies. Increasingly, however, biotech firms find themselves on one side of a divide: as either traditional product companies or platform companies. Given the differences between these two types of business models, the merits of intellectual property (IP) protection vary between them. This article explores how those differences relate to biotech startups and entrepreneurs seeking to protect their inventions.

The Changing Life Science Patent Landscape, Arti K. Rai, Jacob S. Sherkow

Articles & Chapters

Over the past two decades, patent law in the life sciences has been buffeted by numerous controversies. With courts, legislatures and patent offices all responding, one could be forgiven for believing that the main constant has been change. In the following article, we look back at some of the major events in life science intellectual property (IP) law and business practice over the past 20 years and then suggest where IP practice in the life sciences may be heading in the coming years.

Describing Drugs: A Response To Professors Allison And Ouellette, Jacob S. Sherkow

Articles & Chapters

Profs. Allison and Ouellette’s Article, How Courts Adjudicate Patent Definiteness and Disclosure, 65 Duke L.J.609 (2015), on courts’ adjudication of certain patent disputes presents some surprising data: pharmaceutical patents litigated to judgment fare substantially worse on written-description analyses if they are not part of traditional pioneer-generic litigation. This Response engages in several hypotheses for this disparity and examines the cases that make up Allison and Ouellette’s dataset. An analysis of these cases finds that the disparity can be best explained by technological and judicial idiosyncrasies in each case, rather than larger differences among pharmaceutical patent cases. This finding contextualizes …

Infinity Goes On Trial: Sanism, Pretextuality, And The Representation Of Defendants With Mental Disabilities, Michael L. Perlin

Articles & Chapters

This paper, presented to the mid-winter meeting of the National Association of Criminal Defense Lawyers (Austin, TX, 2/18/16), explains why it is essential for lawyers representing criminal defendants with mental disabilities to understand the meanings and contexts of sanism - a largely invisible and largely socially acceptable irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry - and pretextuality - the means by which courts regularly accept (either implicitly or explicitly) testimonial dishonesty, countenance liberty deprivations in disingenuous ways that bear …

Current Issues In Therapeutic Jurisprudence, David Wexler

Articles & Chapters

No abstract provided.

Can Prosecutors Be Both Coach And Referee?, Rebecca Roiphe

Articles & Chapters

No abstract provided.

Fighting To Lose The Vote: How The Solider Voting Acts Of 1942 And 1944 Disenfranchised America's Armed Forces, Molly Guptill Manning

Articles & Chapters

No abstract provided.

Said I, But You Have No Choice: Why A Lawyer Must Ethically Honor A Client's Decision About Mental Health Treatment Even If It Is Not What S/He Would Have Chosen, Michael L. Perlin, Naomi Weinstein

Articles & Chapters

This paper addresses a remarkably under-considered topic: the ethical standards for lawyers representing persons with mental disabilities. Although there is an extensive body of literature endorsing “zealous advocacy” as the standard for the criminal defense lawyer in “ordinary” cases, there is virtually no literature (or case law) on this question in this context.

Our thesis is simple. We reject the model of “paternalism/best interests” that is regularly substituted for a traditional legal advocacy position, and a substitution that is rarely questioned. We believe this presumption flies in the face of statutory law, constitutional law, and international human rights law, and …

Had To Be Held Down By Big Police: A Therapeutic Jurisprudence Perspective On Interactions Between Police And Persons With Mental Disabilities, Michael L. Perlin, Alison Lynch

Articles & Chapters

It is a truism that the largest mental health facilities in the nation are the nation’s largest urban jails. Most of the predictable solutions that are offered to curb the influx of individuals with mental illness into jails -- especially those that urge the loosening of civil commitment standards and the return to large psychiatric institutions -- are dreary at best, unconstitutional at heart, and mean-spirited at worst. However, we pay remarkably little attention to one of the primary causes of this reality: the decisionmaking processes "on the street" by police officers who choose to apprehend and arrest certain cohorts …

Justice, Reconciliation, And The Masculinist Way: What Role For Women In Truth And Reconciliation Commissions?, Penelope Andrews

Articles & Chapters

During periods of armed conflict, women and girls are frequently subjected to violence because of their gender. National governments have attempted to address this issue through transitional justice mechanisms like truth and reconciliation commissions. The record of women’s input and participation in these processes, however, is rather poor. In this article, I highlight the role of South Africa’s Truth and Reconciliation Commission (SATRC) and the opportunity the SATRC missed in failing to comprehensively confront andexamine the systemic nature of violence against women under apartheid. Many transitional justice mechanisms, the SATRC being one of the more vivid examples, have adopted a …

Ancient And Comely Order: The Use And Disuse Of Arbitration By New York Quakers, F. Peter Philips

Articles & Chapters

From the late 17th century, the Religious Society of Friends (“Quakers”) observed a method of resolving disputes arising within congregations that was scripturally based, and culminated in final and binding arbitration. The practice of Quaker arbitration gradually disappeared during the late 19th and early 20th centuries, and few modern Quakers are even aware of it. This article traces that decline and notes similarities with mercantile arbitration. In both religious and mercantile arbitration, a defined community valued the goal of avoiding group disruption more than the goal of vindicating individual legal rights. In both cases, members of the community applied distinct …