Law Commons^™

Brief Of The Intellectual Property Amicus Brief Clinic Of The University Of New Hampshire School Of Law As Amicus Curiae In Support Of Neither Party, Susan M. Richey, John M. Greabe, Keith M. Harrison, J. Jeffrey Hawley

Law Faculty Scholarship

Amicus brief filed by the Intellectual Property Amicus Brief Clinic of the University of New Hampshire School of Law with the United States Court Of Appeals For The Ninth Circuit regarding United States v. Xavier Alvarez, Docket No. 11-210

Transnational Class Actions And The Illusory Search For Res Judicata, Tanya Monestier

Law Faculty Scholarship

The transnational class action-a class action in which a portion of the class consists of non-US 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 …

Just Notice: A Paradigm-Shifting Solution To Economic Dismissals, Anne M. Lofaso

Law Faculty Scholarship

No abstract provided.

Learning How To Learn: Carnegie's Third Apprenticeship, Laurie Barron

Law Faculty Scholarship

No abstract provided.

Revisiting The Original Tea Party: The History Of Regulating Food Consumption In America, Alison Peck

Law Faculty Scholarship

In response to concerns over rising obesity rates, state and federal policymakers have introduced laws that seek to internalize the public health costs of consuming unhealthy foods. These laws range from taxes on sugared beverages to mandatory nutritional information disclosures and beyond. Vocal opponents to such laws, including many Tea Party members, characterize such laws as government overreaching into the private sphere. That opposition often evokes Revolutionary images and ideology, with references to the Boston Tea Party, the Founding Fathers, and the framing of the Constitution. This article challenges the symbolism used by these opponents by examining the pre-Revolutionary non-importation …

Calling Bulls**T On The Lanham Act: The 2(A) Bar For Immoral, Scandalous, And Disparaging Marks, Megan M. Carpenter, Kathryn T. Murphy

Law Faculty Scholarship

As the Lanham Act approaches the age of 65, it is a good time to take stock of its application to, and place within, the object and purpose of trademark law. Trademark law seeks to promote fair competition by reducing consumer search costs and preventing confusion in the minds of consumers as to the source of goods and services. However, Section 2(a) of the Lanham Act prevents registration of marks that are “immoral,” “scandalous,” “disparaging,” “deceptive,” or which “create a false association” with persons, institutions, beliefs, or national symbols. The 2(a) bar expands trademark law well beyond its basic goals. …

Obama's Failed Attempt To Close Gitmo: Why Executive Orders Can't Bring About Systemic Change, Erin B. Corcoran

Law Faculty Scholarship

No abstract provided.

When The Restatement Is Not A Restatement: The Curious Case Of The "Flagrant Trespasser", David Logan

Law Faculty Scholarship

No abstract provided.

Regulatory Takings In The Shale Gas Patch, Patrick Mcginley

Law Faculty Scholarship

No abstract provided.

Small Dollar Loans, Big Problems: How States Protect Consumers From Abuses And How The Federal Government Can Help, Leah A. Plunkett, Ana Lucia Hurtado

Law Faculty Scholarship

Across America, drivers pass twice as many payday loan storefronts as Starbucks coffee shops.2 In twenty-nine states, there are more payday lender stores than McDonald’s restaurants.3 Numerous research studies warn of the dangers associated with payday loans, including significantly higher rates of bankruptcies, evictions, utility shut-offs, and involuntary bank account closures.4 Many states have recognized the dangers posed by payday and other types of small-dollar loans with predatory features, prompting them to adopt laws to combat the abusive nature of these loans. These laws, however, offer consumers varying degrees of protection.

Historically, states have used their police powers to protect …

Drawing A Line In The Sand: Copyright Law And New Museums, Megan M. Carpenter

Law Faculty Scholarship

Over the last twenty years, audience attendance at museums, galleries, and performing arts institutions in the United States has decreased dramatically. Major museums and galleries are considering ways to add engaging and meaningful value to the user experience with technology, from incorporating user-generated content to creating multimedia installations billed as “collaborative” works.

In 2010, the Dallas Museum of Art’s Coastlines: Images of Land and Sea exhibition featured landscapes from 1850 to the present, as well as a sound installation composed by students and faculty in the Arts and Technology program at the University of Texas at Dallas, which played on …

The Methodology Of Comparative Law, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

The Architecture Of First Amendment Free Speech, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

Advising Terrorism: Material Support, Safe Harbors, And Freedom Of Speech, Peter Margulies

Law Faculty Scholarship

No abstract provided.

The Tea Party's Constitution, Jared Goldstein

Law Faculty Scholarship

No abstract provided.

The Tea Party Movement And The Perils Of Popular Originalism, Jared A. Goldstein

Law Faculty Scholarship

The Tea Party movement presents something of a curiosity for constitutional theory because it combines originalist ideology and popular constitutionalist methods. Like minotaurs, werewolves, and other half-man, half-animal hybrids of myth and legend, the Tea Party's hybrid of originalism and popular constitutionalism serves to expose the limitations of both sources upon which it draws. Although originalists assert that interpreting the Constitution according to its original meaning would take politics out of constitutional law, the Tea Party movement shows that originalism also provides a powerful political rhetoric. Moreover, while popular constitutionalists assert that democracy would be advanced by empowering the people …

Can Popular Constitutionalism Survive The Tea Party Movement?, Jared Goldstein

Law Faculty Scholarship

No abstract provided.

Methodology Of Comparative Law, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

Using Individual And Group Multiple-Choice Quizzes To Deepen Students' Learning, Sophie M. Sparrow

Law Faculty Scholarship

For years, I was highly skeptical about using multiple-choice questions to assess law students' learning.' Clients, after all, do not ask lawyers to solve multiple-choice problems. I have realized, however, that multiple-choice quizzes can be a highly effective technique to include in any doctrinal class. Well-designed multiple-choice quizzes can help students in any size class learn foundational doctrine, provide feedback to teachers and students, develop students' interpersonal skills, and prepare students for the bar exam. Having used multiple-choice quizzes in first year and upper-level courses for several years, I now value multiple-choice quizzes as an effective first step in preparing …

Antitrust, Governance, And Postseason College Football, Michael Mccann

Law Faculty Scholarship

This Article examines the compatibility of the Bowl Championship Series (“BCS”) with federal antitrust law and the appropriateness of the federal government using its formal and informal powers to encourage a new format for postseason college football. The Article begins by examining the legality of the BCS under Sections 1 and 2 of the Sherman Antitrust Act. It then discusses the appropriateness of government actors concerning themselves with, and expending taxpayer dollars on, the scheduling of college football games. The Article concludes by offering possible changes to the scheduling structure of postseason college football, with an emphasis on voluntary, efficiency-promoting …

The Moral Of The Story: The Power Of Narrative To Inspire And Sustain Scholarship, Amy Vorenberg

Law Faculty Scholarship

This article describes how I discovered the power of story as a tool to inspire scholarship. We think of stories as a means to bring life to legal cases in a way that grounds them and makes them visceral and comprehensible. We use storytelling to teach our students - showing how the emotive power of a story can persuade. However, stories can also serve a different function. In my search for a way to inspire and sustain my own writing, I found out that a good story can be the source of a writer’s motivation to both create and sustain …

Pledge Your Body For Your Bread: Welfare, Drug Testing, And The Inferior Fourth Amendment, Jordan C. Budd

Law Faculty Scholarship

Proposals to subject welfare recipients to periodic drug testing have emerged over the last three years as a significant legislative trend across the United States. Since 2007, over half of the states have considered bills requiring aid recipients to submit to invasive extraction procedures as an ongoing condition of public assistance. The vast majority of the legislation imposes testing without regard to suspected drug use, reflecting the implicit assumption that the poor are inherently predisposed to culpable conduct and thus may be subject to class-based intrusions that would be inarguably impermissible if inflicted on the less destitute. These proposals are …

An Equal Rights Amendment To Make Women Human, Ann Bartow

Law Faculty Scholarship

[Excerpt] “I can state with some authority that two times fourteen is twenty-eight, flouting the stereotype that women are inept at mathematics and simultaneously framing my argument in favor of an Equal Rights Amendment (ERA). Though the Fourteenth Amendment' provides women with partial legal armament (a dull sword, a small shield), equal protection requires something twice as powerful in the form of a Twenty-Eighth Amendment that would expressly vest women with equal rights under the law. The Fourteenth Amendment has completed only half of the job.”

Iqbal, Al-Kidd And Pleading Past Qualified Immunity: What The Cases Mean And How They Demonstrate A Need To Eliminate The Immunity Doctrines From Constitutional Tort Law, John M. Greabe

Law Faculty Scholarship

The Supreme Court’s decisions in Ashcroft v. Iqbal and Ashcroft v. al-Kidd contain issue-framing statements indicating that a constitutional tort plaintiff is required to plead facts sufficient to establish the inapplicability of the qualified immunity defense. Yet, framing the issue in this way ignores the Court’s earlier decisions in Gomez v. Toledo and Crawford-El v. Britton and is at odds with the established law of pleading; a plaintiff is not required to anticipate an affirmative defense and negate its applicability in the complaint. These cases thus raise a number of questions—Does the Court really mean what its issue-framing statements suggest? …

Preliminary Report On Patent Literature, Search Methodology And Patent Status Of Medicines On The Who Eml 2009, Jon R. Cavicchi, Stanley P. Kowalski

Law Faculty Scholarship

Over the past several decades the World Health Organization (WHO) has produced the Essential Medicines List (EML) to assist countries in deciding what medicines should be essential and available in National Essential Medicine Lists.1 WHO, through the work of regional offices, supports nations using the EML to ensure the quality, availability, and affordability of pharmaceuticals required to promote and advance public health in nations across the globe. However in some cases, access to EML pharmaceuticals might be complicated by existing patents, i.e., where issued, patent rights might pose obstacles to access and inclusion in national EMLs. Indeed, in developed and …

Acting Like An Administrative Agency: The Federal Circuit En Banc, Ryan G. Vacca

Law Faculty Scholarship

When Congress created the Federal Circuit in 1982, it thought it was creating a court of appeals. Little did it know that it was also creating a quasi-administrative agency that would engage in substantive rulemaking and set policy in a manner substantially similar to administrative agencies. In this Article, I examine the Federal Circuit's practices when it orders a case to be heard en banc and illustrate how these practices cause the Federal Circuit to look very much like an administrative agency engaging in substantive rulemaking. The number and breadth of questions the Federal Circuit agrees to hear en banc …

Will Work': The Role Of Intellectual Property In Transitional Economies -- From Coal To Content, Megan M. Carpenter

Law Faculty Scholarship

The development and exploitation of intellectual property, and participation in the global information economy, are not dependent upon geography. It can take place from anywhere, from the inside of an empty factory in Detroit, to a small country road, nestled between the rhododendron and the river. From the R&D lab at a university, to a barren plain in New Mexico. To move from coal to content, we must foster a dynamic and profitable environment for entrepreneurship, through a supportive and robust university community, through state legislation and institutional support and through effective utilization of intellectual property laws. Intellectual property and …

Pearson V. Callahan And Qualified Immunity: Impact On First Amendment Law, David L. Hudson Jr.

Law Faculty Scholarship

An essay on Pearson v. Callahan and its impact on First Amendment Law.

American Prison Culture In An International Context: An Examination Of Prisons In America, The Netherlands, And Israel, Lucian E. Dervan

Law Faculty Scholarship

In 2004, British authorities arrested Abu Hamza al-Masri, an Egyptian born cleric sought by the United States for his involvement in instigating terrorist attacks. As authorities prepared to extradite him in July 2010, the European Court of Human Rights issued a stay. According to the court, al-Masri’s claims that maximum-security prisons in the United States violate European human rights laws prohibiting torture and degrading treatment warranted further examination. Regardless of the eventual resolution of the al-Masri case, the European Court of Human Rights’ inability to summarily dismiss these assertions demonstrates something quite troubling. At a minimum, the court’s actions indicate …

Re-Evaluating Corporate Criminal Liability: The Doj’S Internal Moral Culpability Standard For Corporate Criminal Liability, Lucian E. Dervan

Law Faculty Scholarship

This article examines the common law respondeat superior test for corporate criminal liability and proposes that it be expanded beyond the current two prong test to encompass a third prong regarding moral culpability. Further, this article supports this proposal by noting that the Department of Justice has already incorporated a moral culpability element into its analysis of corporate criminal liability through application of the Department’s Principles of Federal Prosecution of Business Organizations. While some might argue that one should be satisfied that the Department of Justice has seen fit to implement a new corporate criminal liability standard on its own …