Law Commons^™

Inter Partes Review: An Early Look At The Numbers, Brian Love, Shawn Ambwani

Faculty Publications

In the roughly two years since inter partes review replaced inter partes reexamination, petitioners have filed almost two-thousand requests for the Patent Trial and Appeal Board to review the validity of issued U.S. patents. As partial data on inter partes review (IPR) has trickled out via the blogosphere, interest from patent practitioners and judges has grown to a fever (and sometimes fevered) pitch. To date, however, no commentator has collected a comprehensive set of statistics on IPR. Moreover, what little data currently exists focuses on overall institution and invalidation rates — data that, alone, gives us little idea whether IPR …

Featuring People In Ads (2014 Edition), Eric Goldman, Rebecca Tushnet

Faculty Publications

This is a book chapter from the 2014 edition of a casebook, Advertising & Marketing Law: Cases and Materials, by Rebecca Tushnet and Eric Goldman. This chapter examines the legal issues arising from featuring people in advertisements, including publicity rights and endorsement/testimonial guidelines.

Reflections On Presumed Incompetent: The Intersections Of Race And Class For Women In Academia Symposium—The Plenary Panel, Stephanie M. Wildman, Angela Mae Kupenda, Maritza I. Reyes, Angela Onwauchi-Willig, Adiren Katherine Wing

Faculty Publications

Reflections on Presumed Incompetent: The Intersections of Race and Class for Women in Academia Symposium--The Plenary Panel in the Berkeley Journal of Gender, Law & Justice represents the author’s reflections on the recent important book PRESUMED INCOMPETENT edited by Gabriella Gutiérrez y Muhs, Yolanda Flores Niemann, Carmen G. González, and Angela P. Harris. PRESUMED INCOMPETENT has started a national movement of attention to treatment of women of color in academia; google the reviews and check out the book’s Facebook presence. In this recreation of the symposium plenary, the panelists discuss issues surrounding race and gender in academia, particularly in law …

International Humanitarian Law Teaching Supplement: Volume 2 - International Criminal Law, Beth Van Schaack

Faculty Publications

This supplement is designed to provide comprehensive yet focused materials on international humanitarian law (IHL), or the law of armed conflict, for inclusion in other substantive courses, such as public international law, international criminal law, or foreign relations law. The supplement is divided into four main substantive chapters on IHL—when does IHL apply, conflict classification, and means and methods of combat—with an emphasis on how these concepts would arise in a legal proceeding, such as a war crimes prosecution. Each chapter contains an introduction to the main IHL concepts; cases and primary source materials drawn from the jurisprudence of the …

Icc Fugitives: The Need For Bespoke Solutions, Beth Van Schaack

Faculty Publications

It is axiomatic that the ICC depends on the cooperation of the international community, including state parties and non-party states alike, to carry out its mandate to prosecute the “most serious crimes of international concern.” Nowhere is this dependency more apparent than with respect to the imperative of gaining custody of the accused. Given the high degree of situational variation, strategies aimed at gaining custody of one fugitive will not necessarily be effective with others. As such, the international community — in coordination with the Court — needs to devise bespoke solutions. This paper discusses the particular circumstances of each …

Innocence Presumed: A New Analysis Of Innocence As A Constitutional Claim, Paige Kaneb

Faculty Publications

The Supreme Court has never resolved whether innocence is a freestanding constitutional claim. Many critics have mistakenly contended that the Court held in 1993 that innocence is not a federal constitutional claim. As a result, much of the literature has failed to recognize that the door for such claims remains open, or that relevant circumstances have changed and thus the constitutional analysis has changed as well.

In the past two decades, a consensus has emerged among states recognizing the right to judicial review of compelling claims of innocence. In the wake of DNA exonerations, the states reacted uniformly in providing …

Brief Of Amici Curiae Law, Business, And Economics Scholars In Alice Corp. V. Cls Bank, No. 13-298, Brian J. Love, Jason Schultz, James E. Bessen, Michael J. Meurer

Faculty Publications

The Federal Circuit’s expansion of patentable subject matter in the 1990s led to a threefold increase in software patents, many of which contain abstract ideas merely tethered to a general-purpose computer. There is little evidence, however, to suggest this expansion has produced an increase in software innovation. The software industry was highly innovative in the decade immediately prior to this expansion, when the viability of software patentability was unclear and software patents were few. When surveyed, most software developers oppose software patenting, and, in practice, software innovators tend to rely on other tools to capture market share such as first-mover …

Restitution Without Context: An Examination Of The Losing Contract Problem In The Restatement (Third) Of Restitution, William J. Woodward Jr.

Faculty Publications

Professor Stewart Macaulay wondered in 1959 whether restitution, a set of doctrines applied in a wide range of fact-laden contexts, could be captured in a restitution casebook that, inevitably, would strip away much of the context for the law’s application. Restitution reappeared early in this new Century when the American Law Institute decided to “restate” restitution; the final product was approved In 2011. Several sections focused on the role of restitution in settings that began with a contract, or with a contract later “avoided” under contract law.

This article is about one of those situations, that in which the party …

The United States’ Position On The Extraterritorial Application Of Human Rights Obligations: Give It Up, Beth Van Schaack

Faculty Publications

The extraterritorial application of states’ human rights obligations has emerged as a pressing issue in international human rights law. And, it is destined to remain so given that states are increasingly asserting their power abroad in ways that affect the rights of individuals beyond national borders. As domestic courts, international tribunals, and human rights treaty bodies increasingly confront fact patterns and claims requiring a consideration of whether a particular human rights obligation applies extraterritorially, they have struggled to create a defensible and coherent framework of analysis. This process of doctrinal development and evolution has been decentralized to a certain degree …

Strict Products Liability At 50: Four Histories, Kyle Graham

Faculty Publications

This article offers four different perspectives on the strict products-liability "revolution" that climaxed a half-century ago. One of these narratives relates the prevailing assessment of how this innovation coalesced and spread across the states. The three alternative histories introduced by this article both challenge and complement the standard account by viewing the shift toward strict products liability through "populist," "practical," and "contingent" lenses, respectively. The first of these narratives considers the contributions that plaintiffs and their counsel made toward this change in the law. The second focuses upon how certain types of once-common products cases forged a practical argument for …

Polymorphous Public Law Litigation: The Forgotten History Of Nineteenth Century Public Law Litigation, David Sloss

Faculty Publications

Recent debates about popular constitutionalism and judicial supremacy have focused on the question of who interprets the Constitution. This article reframes the debate by asking what legal sources courts apply to protect individual rights from government infringement. Throughout the nineteenth century, federal courts applied a mix of international law, statutes and common law to protect fundamental rights and restrain government action. This article uncovers the forgotten history of nineteenth century public law litigation.

Professors Post and Siegel have advocated “policentric constitutional interpretation,” wherein the Supreme Court shares authority for constitutional interpretation with other actors. By analogy, this article introduces the …

Legal Uncertainty And Aberrant Contracts: The Choice Of Law Clause, William J. Woodward Jr.

Faculty Publications

Legal uncertainty about the applicability of local consumer protection can destroy a consumer’s claim or defense within the consumer arbitration environment. What is worse, because the consumer arbitration system cannot accommodate either legal complexity or legal uncertainty, the tendency will be to resolve cases in the way the consumer’s form contract dictates, that is, in favor of the drafter. To demonstrate this effect and advocate statutory change, this article focuses on fee-shifting statutes in California and several other states. These statutes convert very common one-way fee-shifting terms (consumer pays business’s attorneys fees if business wins but not the other way …

In Honor Of Angela Harris: Finding Breathing Space, Embracing The Contradictions, And "Education Work", Stephanie M. Wildman

Faculty Publications

In Honor of Angela Harris: Finding Breathing Space, Embracing the Contradictions, and “Education Work,” serves as a tribute to Angela Harris. This essay explores Harris’ concept of education work, the work that people of color in predominantly white settings must do to maintain their own integrity and to help their white colleagues to build inclusive communities. Part I explores this idea of education work and suggests that whites need to undertake part of the load of this work. Education work by whites provides an opportunity to create allies and to work across racial lines. Part II addresses the idea of …

A New Analysis Of Innocence As A Constitutional Claim, Paige Kaneb

Faculty Publications

The Supreme Court has never resolved whether innocence is a freestanding constitutional claim. Some have mistakenly contended that the Court held in 1993 that innocence is not a federal constitutional claim. As a result, much of the literature has failed to recognize that the door for such claims remains open or that relevant circumstances have changed and thus the constitutional analysis has changed as well.

In the past two decades, a consensus has emerged among states recognizing the right to judicial review of compelling claims of innocence. In the wake of DNA exonerations, the states reacted uniformly in providing petitioners …

Material Indifference: How Courts Are Impeding Fair Disclosure In Criminal Cases, Kathleen M. Ridolfi, Tiffany M. Joslyn, Todd H. Fries

Faculty Publications

The integrity of the criminal justice system relies on the guarantees made to the actors operating within it. Critical to the accused is the guarantee of fair process. For the accused, fair process includes not only the right to put on a defense, but to put on a complete defense. The U.S. Supreme Court recognized the importance of this guarantee over 50 years ago, in Brady v. Maryland, when it declared that failure to disclose favorable information violates the constitution when that information is material.This guarantee, however, is frequently unmet.In courtrooms across the nation, accused persons are convicted without ever …

Practicing Social Justice Feminism In The Classroom, Stephanie M. Wildman

Faculty Publications

No abstract provided.

Is There A Patent Troll Problem In The U.K.?, Brian Love, Christian Helmers, Luke Mcdonagh

Faculty Publications

No abstract provided.

Do University Patents Pay Off?: Evidence From A Survey Of University Inventors In Computer Science And Electrical Engineering, Brian Love

Faculty Publications

Studies of the costs and benefits of university patent ownership have, to date, focused on life sciences technology. Increasingly, however, many of the most lucrative university-owned patents relate to computing and telecommunications, not genes or pharmaceuticals. In 2007, a University of California spin-off named Eolas settled a patent suit with Microsoft for $100 million. In 2010, Cornell University won a $184 million jury verdict against Hewlett-Packard in a case that later settled on confidential terms. And most recently, in 2014, Carnegie Mellon University received a $1.5 billion judgment — one of the largest patent damages awards in history — in …

The Law Of Corporate Purpose, David Yosifon

Faculty Publications

Delaware corporate law requires directors to manage firms for the benefit of the firm’s shareholders, and not for any other constituency. Delaware jurists have been clear about this is in their case law, and they are not coy about it in extra-judicial settings, such as in speeches directed at law students and practicing members of the corporate bar. Nevertheless, the reader of leading corporate law scholarship is continually exposed to the scholarly assertion that the law is ambiguous or ambivalent on this point, or even that case law affirmatively empowers directors to pursue non-shareholder interests. It is shocking, and troubling, …

Why State Prisons?, W. David Ball

Faculty Publications

The United States finds itself in an era where the cost of state prisons is both extremely large and politically salient. State prisons held approximately 1.3 million people in 2012, almost twice as many people as county jails and more than five times as many as federal prisons. The total cost of state corrections in2010 was $48.5 billion. In response, states nationwide are now experimenting with ways to reduce their role in imprisonment. The United States Department of Justice's Bureau of Justice Assistance launched the Justice Reinvestment Initiative to promote policies that reduce prison populations; the seventeen states that have …

Redesigning Sentencing, W. David Ball

Faculty Publications

Design thinking purports to take the methods of industrial and product design and apply them to social and political problems. One particularly intractable problem in California is its bloated penal code, which has expanded almost continuously over the past forty years. Since 1983, more than a dozen bills have been introduced in the CaliforniaLegislature to establish a sentencing commission. All have failed. In this paper I explore how design thinking might help frame our discussion of mass incarceration in general and sentencing commissions in particular:what kinds of changes are possible within the foreseeable future, how wecan make any changes sustainable, …

Taxation Of Same-Sex Couples After United States V. Windsor: Did The Irs Get It Right In Revenue Ruling 2013-17?, Patricia A. Cain

Faculty Publications

The tax world for same-sex couples changed dramatically on June 26, 2013, when the United States Supreme Court handed down its decision in United States v. Windsor. The Court ruled that section 3 of the Defense of Marriage Act (DOMA) was unconstitutional. As a result the IRS would be required to recognize same-sex spouses as validly married for tax purposes. There were three major issues facing the IRS after Windsor: (1) Which marriages should be recognized for tax purposes? (2) How much retroactive effect should be given to the decision? (3) Should marriage equivalent statuses such as registered domestic partnerships …