Law Commons^™

United States – Definitive Anti-Dumping And Countervailing Duties On Certain Products From China, Sungjoon Cho

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No abstract provided.

Explaining The Demise Of The Doctrine Of Equivalents, David L. Schwartz

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This article provides a novel theoretical model and extensive empirical evidence to explain the decline of a historically important patent law doctrine known as the “doctrine of equivalents.” In recent years, distinguished academics have studied the doctrine of equivalents. While these scholars noted that the doctrine of equivalents had decreased in its successful use and provided some grounds for the decline, none clearly explained why. As such, the cause and precise mechanism behind the so-called “demise” of the doctrine of equivalents have largely remained a mystery.

This article explains that the demise occurred because of two complementary forces discussed for …

Oral Dissenting On The Supreme Court, Christopher W. Schmidt, Carolyn Shapiro

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In this Article we offer the first comprehensive evaluation of oral dissenting on the Supreme Court. We examine the practice in both historical and contemporary perspective, take stock of the emerging academic literature on the subject, and suggest a new framework for analysis of oral dissenting. Specifically, we put forth several claims. Contrary to the common assumption of scholarship and media coverage, oral dissents are nothing new. Oral dissenting has a long tradition, and its history provides valuable lessons for understanding the potential and limits of oral dissents today. Furthermore, not all oral dissents are alike. Dissenting Justices may have …

The Inviolate Home: Housing Exceptionalism In The Fourth Amendment, Stephanie M. Stern

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The ideal of the inviolate home dominates the Fourth Amendment. The case law accords stricter protection to residential search and seizure than to many other privacy incursions. The focus on protection of the physical home has decreased doctrinal efficiency and coherence and derailed Fourth Amendment residential privacy from the core principle of intimate association. This Article challenges Fourth Amendment housing exceptionalism. Specifically, I critique two hallmarks of housing exceptionalism: first, the extension of protection to residential spaces unlikely to shelter intimate association or implicate other key privacy interests; and second, the prohibition of searches that impinge on core living spaces …

Constitutional Torts, Over-Deterrence And Supervisory Liability After Iqbal (2010) (Symposium), Sheldon Nahmod

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My forthcoming Article is divided into the following parts. In Part I, I survey relevant aspects of the law of § 1983 and Bivens. Painting with a broad brush and for the most part descriptively, I maintain that the Court’s concern with over-deterrence has increasingly dominated constitutional torts. In Part II, I address the relevance of that concern for supervisory liability, set out what the Court said about supervisory liability in Iqbal and very briefly summarize the pre-Iqbal circuit consensus on supervisory liability. In Part III, I delve more deeply into the nature of supervisory liability and conclude that the …

Music Markets And Mythologies, Henry H. Perritt Jr.

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New technologies have started a revolution in the music marketplace. As new business models emerge, major firms in the popular music industry have mounted a campaign on the premise that the world of popular music faces a grave threat from illicit filing sharing. This article makes the case against that campaign. It discusses how new technologies are currently reshaping the marketplace to allow a wider range of new artists, as well as more direct access between musicians and their fans. It also predicts how future demand for popular music will increase due to portability, and ultimately recommends directions for marketplace …

Scorn Not The Sonnet: In Search Of Shakespeare's Law, Jeffrey G. Sherman

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No abstract provided.

Undermined Norms: The Corrosive Effect Of Information Processing Technology On Informational Privacy, Richard Warner

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Informational privacy is a matter of control; it consists in the ability to control when one’s personal information is collected, how it is used, and to whom it is distributed. The degree of control we once enjoyed has vanished. Advances in information processing technology now give others considerable power to determine when personal information is collected, how it is used, and to it is whom distributed. Privacy advocates sound the alarm in regard to both the governmental and private sectors. I focus exclusively on the later. Relying on the extensive privacy advocate literature, I assume we should try to regain …

The Demise Of Development In The Doha Round Negotiations, Sungjoon Cho

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This article provides a concise history of the Doha Round negotiation, analyzes its deadlock, and offers some suggestions for a successful Doha deal and for developing countries. The article observes that the nearly decade-long negotiation stalemate is symptomatic of diametrically opposed perceptions of the nature of the Round between developed and developing countries. While developed countries appear to be increasingly oblivious to Doha’s original genesis, developing countries vehemently condemn their narrow commercial focus in the Doha Round talks. It will not be easy to untie this Gordian knot since both developed and developing countries tend to think that no deal …

Property Rights & The Demands Of Transformation, Bernadette Atuahene

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The conception of property that a transitional state adopts is critically important because it affects the state’s ability to transform society. The classical conception of real property gives property rights a certain sanctity that allows owners to have near absolute control of their property. But, the sanctity given to property rights has made land reform difficult and thus can serve as a sanctuary for enduring inequality. This is particularly true in countries like South Africa and Namibia where—due to pervasive past property theft— land reform is essential because there are competing legitimate claims to land. Oddly, the classical conception is …

Property And Transitional Justice, Bernadette Atuahene

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Transitional justice is the study of those mechanisms employed by communities, states and the international community to deal with a legacy of systematic human rights abuses and authoritarianism in order to promote social reconstruction. There is a well developed transitional justice literature on how states can deal with past violations of civil and political rights, which discusses the value of truth commissions, and international and domestic prosecutions. The transitional justice literature on how to deal with past violations of property rights, however, is significantly less developed. The goal of this essay is to begin an important conversation about how transitional …

The Stories Of Marriage, Katharine K. Baker

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The gay and lesbian community's response to California's Proposition 8 was strong and quick. Within days of the 2008 election, opponents of the measure had targeted its proponents, in particular the Mormon Church, as subjects for scorn. Singling out the Mormon Church on this issue was particularly ironic because to the extent that members of the Mormon Church were responsible for the success of Proposition 8, they simply did to the gay community what courts of the United States consistently did to their forebears: defined away their right to marry. In striking down individuals' rights to enter into polygamous marriages, …

Marriage And Parenthood As Status And Rights: The Growing, Problematic And Possibly Constitutional Trend To Disaggregate Family Status From Family Rights, Katharine K. Baker

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In upholding Proposition 8 one year after finding that same sex couples had a constitutional right to marry, the California Supreme Court followed a growing trend in family law to sever family rights from family status. The Court found that same sex couples were constitutionally entitled to the legal incidents of marriage, but not marriage itself. In the last 30 years, courts and legislatures have increasingly recognized a variety of different family forms by granting people in them the legal incidents of family relationship (Civil Unions and Domestic Partnerships for couples, Visitation and De Facto Parenthood for caretakers) without granting …

Florence Kelley And The Battle Against Laissez-Faire Constitutionalism, Felice J. Batlan

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The usual story of the demise of laissez-faire constitutionalism in the 1930’s features heroes such as Louis Brandeis, Felix Frankfurter and the great male legal progressives of the day who rose up from academia, the bench, and the bar, to put an end to what historians label "legal orthodoxy." In this essay, I seek to demonstrate that Florence Kelley was a crucially important legal progressive who was at the front lines of drafting and defending new legislation that courts were striking down as violating the Fourteenth Amendment and State constitutions. Looking at who was drafting and lobbying for path breaking …

Breaking Bucks In Money Market Funds, William A. Birdthistle

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This Article argues that the Securities and Exchange Commission’s first and most significant response to the economic crisis increases rather than decreases the likelihood of future failures in money market funds and the broader capital markets. In newly promulgated regulations addressing the "breaking of the buck" in the $3 trillion money market - a debacle at the fulcrum of the 2008 financial meltdown - the SEC endorses practices that obfuscate rather than illuminate the capital markets, including fixed pricing for money market funds, potentially riskier portfolio requirements, and the continued use of discredited ratings agencies. These policies, premised implicitly upon …

Breaking Bucks: Sec Regulation By Obfuscation, William A. Birdthistle

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This Article argues that the Securities and Exchange Commission’s first and most significant response to the economic crisis profoundly contradicts widely accepted theoretical and regulatory approaches to financial oversight. More alarmingly, the SEC’s newest rules increase rather than decrease the likelihood of future failures in money market funds and the broader capital markets.

Scholars – of both neoclassical and behavioral economic theory – have long insisted that transparency and disclosure play essential roles in ensuring efficient capital markets and sound financial regulation. Professors Gilson and Kraakman notably argued that the efficient capital market hypothesis, and its reliance on a market …

Investment Indiscipline: A Behavioral Approach To Mutual Fund Jurisprudence, William A. Birdthistle

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Next Term, in Jones v. Harris, the Supreme Court will be called upon to resolve philosophical divergences on a massive, critical, yet academically slighted subject: the dysfunctional system through which almost one hundred million Americans attempt to save more than ten trillion dollars for their retirement. When this case was in the Seventh Circuit, two of the foremost theorists of law and economics, Chief Judge Frank Easterbrook and Judge Richard Posner, disagreed vociferously on competing analyses of the investment industry. The Supreme Court’s ruling will not only resolve the intricate fiduciary and doctrinal issues of this dispute but also have …

All Charities Are Property-Tax Exempt, But Some Charities Are More Exempt Than Others, Evelyn Brody

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Attention from the media notwithstanding, the nonprofit sector continues to achieve remarkable success in state supreme courts and statehouses in defending property-tax exemptions. But budget pressures remain. While the intermediate use of “payments in lieu of taxes” has not yet become a systematic compromise solution, PILOTs are attracting growing interest from local taxing jurisdictions. This Article highlights three issues— who decides the parameters of exemption, legislatures or courts; what are the specific factors and vulnerable subsectors; and how exemption is granted or withheld in practice—and concludes with several PILOT case studies. The Appendix sets forth a fifty-one-jurisdiction review of state …

Respecting Foundation And Charity Autonomy: How Public Is Private Philanthropy? (Symposium) (With J. Tyler), Evelyn Brody

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Recent years have seen a disturbing increase in legal proposals by the public and government officials to interfere with the governance, missions, strategies, and decision-making of foundations and other charities. Underlying much of these debates is the premise – stated or merely presumed – that foundation and charity assets are “public money” and that such entities therefore are subject to various public mandates or standards about their structure, operations, and policies. The authors’ experiences and research reveal three “myths” that, singly or collectively, underlie claims that charitable assets are public money. The first myth conceives of charities as shadow governments …

Retribution And The Experience Of Punishment, Christopher J. Buccafusco, J. Bronsteen, J. Masur

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In a prior article, we argued that punishment theorists need to take into account the counterintuitive findings from hedonic psychology about how offenders typically experience punishment. Punishment generally involves the imposition of negative experience. The reason that greater fines and prison sentences constitute more severe punishments than lesser ones is, in large part, that they are assumed to impose greater negative experience. Hedonic adaptation reduces that difference in negative experience, thereby undermining efforts to achieve proportionality in punishment. Anyone who values punishing more serious crimes more severely than less serious crimes by an appropriate amount - as virtually everyone does …

Valuing Intellectual Property: An Experiment, Christopher J. Buccafusco, C. Sprigman

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In this article we report on the results of an experiment we performed to determine whether transactions in intellectual property (IP) are subject to the valuation anomalies commonly referred to as “endowment effects”. Traditional conceptions of the value of IP rely on assumptions about human rationality derived from classical economics. The law assumes that when people make decisions about buying, selling, and licensing IP they do so with fixed, context-independent preferences. Over the past several decades, this rational actor model of classical economics has come under attack by behavioral data showing that people do not always make strictly rational decisions. …

Welfare As Happiness (With J. Bronsteen & J. Masur), Christopher J. Buccafusco

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Perhaps the most important goal of law and policy is improving people’s lives. But what constitutes improvement? What is quality of life, and how can it be measured? In previous articles, we have used insights from the new field of hedonic psychology to analyze central questions in civil and criminal justice, and we now apply those insights to a broader inquiry: how can the law make life better? The leading accounts of human welfare in law, economics, and philosophy are preference-satisfaction - getting what one wants - and objective list approaches - possessing an enumerated set of capabilities. This Article …

Proposal For Drug Offender Stationhouse Deferral Program, Daniel T. Coyne

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No abstract provided.

Restructuring Proposal For The Criminal Division Of The Circuit Court Of Cook County, Daniel T. Coyne

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No abstract provided.

Anthropology, History And The "More Economic Approach" In European Competition Law - A Review Essay, David J. Gerber

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In several works over the last decade, Wolfgang Fikentscher has reminded us that there are ways of viewing competition law that need not begin and end with economics—its concepts, its language, and its science-based normative stance. Discussions of competition law in the United States and increasingly in Europe generally dismiss or marginalize views of competition law that are not circumscribed by economic science. In the works reviewed here, Fikentscher takes issue with the so-called “more economic approach” to law, particularly, competition law. As he has said on other occasions, he favors “a less economic approach” to competition law. Many in …

Convergence In The Treatment Of Dominant Firm Conduct: The United States, The European Union, And The Institutional Embeddedness Of Economics, David J. Gerber

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Discussions of the competition law treatment of dominant firms often center on the issue of whether EU and U.S. law in this area are likely to converge and thereby provide a more uniform legal terrain for the activities of such firms. Curiously, however, discussions of convergence seldom pay careful attention to key issues such as “What are the differences in the role of economics in the respective legal systems and which factors are likely to affect significantly the likelihood of convergence?”. They often hover in a somewhat mystical realm in which convergence is just expected to “happen”.

In this essay, …

Note, Maintaining Educational Adequacy In Times Of Recession: Judicial Review Of State Education Budget Cuts, Vinay Harpalani

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This Note examines judicial review and oversight of state educational adequacy remedies in light of education budget cuts proposed during the recent recession. Educational adequacy litigation has been relatively successful in establishing children’s affirmative right to education under state constitutions, but due to separation of powers concerns, most state courts have been quite deferential to legislatures in reviewing remedies for constitutional violations. This leaves many schools underfunded and under-resourced in spite of successful adequacy litigation—a problem that is aggravated during times of recession, when many states face pressure to cut education budgets. This Note examines these issues using functional separation …

Reasonable Grounds Evidence Involving Sexual Violence In Darfur (With J. Hagan & R. Brooks), Todd Haugh

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No abstract provided.

Remixing Lessig (Reviewing Lawrence Lessig, Remix (2008)), Edward Lee

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This book review analyzes - and remixes - Lawrence Lessig's last copyright-related book, "Remix." It takes the central ideas, including some quotations, from Remix, and transforms them with some new examples and commentary of my own. Part I summarizes and critiques Lessig’s discussion of (1) the remix and read-write (RW) culture, and (2) its relationship to the sharing, commercial, and hybrid economies. Part II discusses some of Lessig’s reform proposals for our copyright system to foster a remix culture.

Technological Fair Use, Edward Lee

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The Article proposes a framework tailoring fair use specifically for technology cases. At the inception of the twenty-first century, information technologies have become increasingly central to the U.S. economy. Not surprisingly, complex copyright cases involving speech technologies, such as DVRs, mp3 devices, Google Book Search, and YouTube, have increased as well. Yet existing copyright law, developed long before digital technologies, is ill-prepared to handle the complexities these technology cases pose. The key question often turns, not on prima facie infringement, but on the defense of fair use, which courts have too often relegated to extremely fact-specific decisions. The downside to …