Law Commons^™

Dispelling Grammar Myths: 'To Split' Or 'Not To Split' The Infinitive, Rebecca K. Blemberg

Faculty Publications

No abstract provided.

Neighborhoods Healed Through Restorative Justice, Janine P. Geske, India Mccanse

Faculty Publications

No abstract provided.

Toward The Viability Of State-Based Legislation To Address Workplace Captive Audience Meetings In The United States, Paul M. Secunda

Faculty Publications

The U.S. Supreme Court has long interpreted the National Labor Relations Act as permitting employers to hold workplace captive audience meetings with their employees on labor-oriented issues. Employees must attend these meetings at pain of discharge and may not be able to leave these meetings, ask questions, or espouse pro-union views.

Under Worker Freedom Act legislation percolating presently in a number of state legislatures, employers would not only be prohibited from holding mandatory sessions during work to express opinions on labor-related, political, and religious issues, but would be liable for retaliating against workers who reported the holding of such sessions. …

“The Longest Journey, With A First Step” : Bringing Coherence To Sovereignty And Jurisdictional Issues In Global Employee Benefits Law, Paul M. Secunda

Faculty Publications

One of the most neglected areas of employee benefits law in the United States today is the extraterritorial application of ERISA to U.S. employees in other countries. Additionally, the courts and legislature have not spent the necessary time to discuss ERISA coverage issues for foreign employees, both legal and illegal and both working for foreign government and non-government employers, in the United States. These are increasingly crucial areas of U.S. employee benefits law as the globalization of the world's workplaces continues apace.

After surveying the tangled web of ERISA law in this context, the article proposes two statutory fixes and …

Writing, Cognition, And The Nature Of The Judicial Function, Chad M. Oldfather

Faculty Publications

Prior commentators, including many judges, have observed that writing provides an important discipline on the judicial decisionmaking process. Those commentators have uniformly assumed that the effect will always be positive - that is, that a decision rendered pursuant to a process that includes a written justification will always be better (however better is to be measured) than a decision unaccompanied by writing. According to this view, we should always, all things being equal, prefer a decision accompanied by an opinion to one without. All things are not equal, of course, and there are many situations in which the costs of …

What If, After All, Trademarks Were ‘Traded In Gross’?, Irene Calboli

Faculty Publications

The conditions upon which trademarks should be "traded" - that is, assigned and licensed in the marketplace - have traditionally been at the center of the trademark debate. Historically, based upon the assumption that trademarks can be protected only as conveyers of commercial information and as symbols of business goodwill, trademark law has prohibited trading in trademarks "in gross" and has required that trademarks be assigned "with their goodwill" and licensed only as long as licensors control the quality of the products. Yet, these criteria have been proven controversial and difficult to enforce because they hinge on two concepts that …

The Many Mendelsohn ‘Me Too’ Missteps: An Alliterative Response To Professor Rubenstein, Paul M. Secunda

Faculty Publications

No abstract provided.

Guidelines Simplification: Still An Urgent Priority Post-Booker, Michael M. O'Hear

Faculty Publications

No abstract provided.

Perpetual Panic, Michael M. O'Hear

Faculty Publications

No abstract provided.

The Name Is The Same, But The Facts Have Been Changed To Protect The Attorneys: Strickland, Judicial Discretion, And Appellate Decision-Making, Gregory J. O'Meara

Faculty Publications

The gap between historical events and the way courts recount them in appellate decisions is highlighted by the differences in fact descriptions offered in the same case: Strickland v. Washington. The Supreme Court's majority decision ignores or recasts facts found in the lower courts in this case.

Paul Ricoeur, the leading philosopher of narrative, provides a framework that explains how legal facts are malleable and subject to distortion in his work on non-fiction narratives. He lays out instabilities inherent in any use of language and then broadens his inquiry to show that the transition from the oral to the written …

First Things, First: A Principled Approach To Patent Administrative Law, Kali Murray

Faculty Publications

The relevance of administrative law to patent law has been reinforced by the recent controversy in Tafas v. Dudas. This Essay examines two issues. First, this Essay, using the controversy over continuation practices at the heart of Tafas v. Dudas, examines the impact of patent exceptionalism on the development of patent administrative law. In particular, this Essay explores the way in which the Federal Circuit's opinion in Merck v. Kessler can be used to (temporarily) resolve tensions in how Section 2 of the Patent Act is interpreted with respect to substantive rulemaking. Second, this Essay attempts to outline a series …

Garcetti's Impact On The First Amendment Speech Rights Of Federal Employees, Paul M. Secunda

Faculty Publications

Garcetti v. Ceballos does nothing less than redefine the whole conception of what role public employees should play in ensuring the fair and efficient administration of government services. Through its holding, the Court has now made it nearly impossible for conscientious public servants to speak out in the best interests of the public without jeopardizing their careers. Yet, if possible, the situation is even worse for federal employees.

For the uninitiated, Garcetti is the watershed public employment free speech case that drastically cuts down on public employees' First Amendment expression rights while such employees are working pursuant to their official …

Mediating The Special Education Front Lines In Mississippi, Paul M. Secunda

Faculty Publications

In over four years, I have mediated nearly thirty special education disputes involving children in regular and special education classrooms, in special schools for the blind and deaf, and in the institutional setting. Happily, most of these disputes resulted in mediation agreements, without need for further litigation between the parties. Each mediation has elements that make it unique. But before the mediations discussed in this story, I had never been to a juvenile correctional facility, let alone a maximum security one, to hear a special education dispute.

This paper, part of the UMKC Law Review Law Stories series, explains in …

Does The Patent Exhaustion Doctrine Apply When The Patentee Placed Express Conditions On The Subsequent Sale Or License Of A Patented Article?, Kali Murray

Faculty Publications

No abstract provided.

Does The Faa Preempt California's Authority To Determine The Validity Of A Performer's Personal Management Contract?, Jay E. Grenig

Faculty Publications

No abstract provided.

May A Prevailing Party Be Awarded “Attorney Fees” For Paralegal Services?, Jay E. Grenig

Faculty Publications

No abstract provided.

When May A Government Challenge A Decision That An Action Can Proceed In Its Absence?, Jay E. Grenig

Faculty Publications

No abstract provided.

When Do Federal Courts Have Jurisdiction To Review Petitions To Compel Arbitration?, Jay E. Grenig

Faculty Publications

No abstract provided.

May A State Legislature Prohibit State Political Subdivisions From Making Payroll Deductions For Political Activities?, Jay E. Grenig

Faculty Publications

No abstract provided.

Progressive Policy-Making On The Local Level: Rethinking Traditional Notions Of Federalism, Matthew J. Parlow

Faculty Publications

Due, in part, to Justice Brandeis' famous dissent, many have presumed that the states are the most fertile ground for policy innovation. However, with their transformation from smaller urban and rural centers to major metropolitan regions, local governments may prove even more fruitful agents of social change and laboratories for policy experimentation. Indeed, local governments are critical components of our federal system and embody the values of federalism both in theory and practice. Local governments have trailblazed in legal and policy arenas where the federal and state governments could not (or would not) engage: gay rights and gay marriage, campaign …

Greenwashed?: Developers, Environmental Consciousness, And The Case Of Playa Vista, Matthew J. Parlow

Faculty Publications

While many businesses are becoming greener, development corporations may have the greatest incentive to integrate environmental values into their everyday business practices. With the effects of urbanization, suburbanization, and sprawl, cities are increasingly requiring environmental mitigation measures for approval of new development. In response, some development corporations may become greenwashed to obtain discretionary land use approvals to build their proposed developments. Others may build greener developments to meet the market demand from environmentally conscious buyers. An increasing number of developers, however, adopt environmentally responsible business practices for, at least in significant part, altruistic reasons. A prime example of this phenomenon …

The Rhetoric Of Self-Defense, Janine Young Kim

Faculty Publications

The rhetoric of self-defense is a powerful instrument in the hands of legal actors to shape our understanding of justified violence in society. This rhetoric is based not in the legal definition of self-defense but rather in the paradigmatic situation of deadly response to deadly attack, which offers useful guidance in interpreting the law's required elements. However, the paradigm also tends to embrace claims of morality and right that threaten to expand self-defense beyond recognition to consider inappropriate values such as vengeance and punishment.

In this Article, the author argues that self-defense should be viewed not only as a moral …

Tales Of A Law Professor Lateral Nothing, Paul M. Secunda

Faculty Publications

This Essay seeks to uncover the mysterious world of the law professor lateral hiring market, which has become increasingly important in the last number of years as law schools seek to build their reputations in this U.S. News & World Report world through the hiring of prominent faculty members.

Although the advice and guidance given in this Essay are sometimes written with tongue firmly in cheek, I do attempt to accomplish two important objectives here. First, there has been scarcely anything written about the lateral hiring market for law professors, as opposed to the cottage industry that has been devoted …

A Triple Play For The Public Domain: Delaware Lottery To Motorola To C.B.C., Matthew J. Mitten

Faculty Publications

A trilogy of cases decided by federal courts over the past 30 years correctly holds that game scores, real-time game accounts, and player statistics are in the public domain. There is a consistent thread in these federal cases, based on sound legal, public policy and economic analysis, which justifies judicial rejection of state law claims by sports leagues and players asserting exclusive rights to this purely factual information. The creation of a collateral product incorporating merely public domain information about a sports event or athletes' performances, including fantasy league games, is not (and should not be) infringing absent copyright or …

A Tribute To William P. Murphy: Labor Law Trailblazer And Man Of Unflinching Principle, Paul M. Secunda

Faculty Publications

No abstract provided.

A Historical Review Of Title Ix Litigation, Paul M. Anderson, Barbara Osborne

Faculty Publications

This paper provides a historical analysis of litigation involving Title IX from its enactment in 1972 until its thirty five year anniversary in 2007.

Civic Republicanism, Public Choice Theory, And Neighborhood Councils: A New Model For Civic Engagement, Matthew J. Parlow

Faculty Publications

This paper analyzes the lack of civic engagement in local government decision-making and the problems that result from it. I consider one explanation as viewed through public choice theory: dominant special interest groups capture local governments for their own private interests. Thus, average citizens are not only alienated from their local government, but they also find the barriers to entry into local politics too high for collective action and participation. While at first glance this account seems descriptively accurate, public choice theory has normative limitations in explaining local governments because it fails to recognize these features of the local politics …

Whither The Pickering Rights Of Federal Employees?, Paul M. Secunda

Faculty Publications

As a result of the Supreme Court's 1983 decision in Bush v. Lucas, federal employees are not permitted to bring Bivens constitutional tort claims directly to federal court to vindicate their First Amendment rights to free speech under Pickering v. Bd. of Education. Instead, the Bush Court found that Congress had established an effective, alternative statutory scheme for vindication of such claims under the Civil Service Reform Act of 1978 (CSRA of 1978). This places federal employees in a less favorable predicament than their state and local employee counterparts who are able to directly proceed to court on their First …

When Can A Collective Bargaining Agreement Waive Union Members' Rights To A Judicial Forum?, Jay E. Grenig

Faculty Publications

No abstract provided.

Athlete Eligibility Requirements And Legal Protection Of Sports Participation Opportunities, Matthew J. Mitten, Timothy Davis

Faculty Publications

This article compares and examines the existing legal frameworks governing athletic eligibility rules and dispute resolution processes for Olympic, professional, college, and high school sports from both private law and public law perspectives. At all levels of sports competition, monolithic sports leagues and governing bodies establish eligibility requirements and conditions that must be satisfied for an individual to participate in athletics. Most sports governing bodies have broad, exclusive authority to regulate a single sport or group of sports on either an international, national, or state-wide basis, which provides the corresponding power to exclude or limit athletic participation opportunities. In conducting …