Law Commons^™

Idaho's Law Of Seduction, Michael L. Smith

Faculty Articles

Seduction is a historical cause of action that permitted women's fathers to bring suit on their daughters' behalf in sexual assault and rape cases. This tort emerged long ago when the law's refusal to recognize women's agency left this as the only means of recovering damages in these cases. As time went on, the tort evolved, and women were eventually permitted to bring lawsuits for seduction on their own behalf. Today, most states have abolished seduction, along with other torts permitting recovery for damages arising from intimate conduct. One could be easily forgiven for thinking that such an archaic tort …

Is, Ought, And The Limited Competence Of Experts, Adam J. Macleod

Faculty Articles

The moral innovators whom C. S. Lewis criticized in The Abolition of Man supposed that they could draw imperatives out of their superior understanding of sentiment and instinct. They assumed that to know what human beings want to do is to know what human beings should do. But people want to do all sorts of things that are irrational, pointless, harmful, and even downright evil. And people want inconsistent things. So the innovators are incoherent. As Lewis correctly affirmed, no amount of knowledge about nature or the world is sufficient by itself to direct us to do what is good …

The Cost Of Unstable Property: Oil, Gas, And Other Confusing Mineral Interests, Chad J. Pomeroy

Faculty Articles

Most people think of property as a thing: a chunk of land or a piece of personal property. Most lawyers, hopefully, have a more sophisticated view and think of property as a set of rights that exists with respect to a thing and governs how one interacts with that thing vis-a-vis other people. But even that nuance is not refined enough for an oil and gas lawyer. Such a practitioner does, of course, view ownership as a set of rights, but the thing at hand is not just a piece of real property or the part of the land that …

Public Rights After Oil States Energy, Adam J. Macleod

Faculty Articles

The concept of public rights plays an important role in the jurisprudence of the Supreme Court of the United States. But as the decision in Oil States last Term revealed, the Court has often used the term to refer to three different concepts with different jurisprudential implications. Using insights drawn from historical and analytical jurisprudence, this Article distinguishes the three concepts and examines how each of them is at work in patent law. A precise reading of Oil States also bears lessons for other areas of law that implicate both private rights and duties and the administration of public regulatory …

Patent Infringement As Trespass, Adam J. Macleod

Faculty Articles

The now-conventional account of patent law holds that infringement is a strict liability offense, meaning that intent is not an element of an infringement claim. This account heightens the apparent injustice of patent law's special knowledge problem, that as ambiguous descriptions of intangible resources, patent claims do not sufficiently make potential infringers aware of a patentee's right to exclude. Particularly in the age of so-called "patent thickets, " clusters of patents of variable merit which are indistinguishable from each other and from prior art, strict liability, or infringement seems rather hard.

These problems reflect a conceptual misunderstanding. When infringement is …

Prior Sexual Misconduct Evidence In State Courts: Constitutional And Common Law Challenges, Michael L. Smith

Faculty Articles

Prosecuting sex crimes is a sensitive, challenging process, and many who commit these crimes end up going unpunished. While a defendant may have a history of prior sexual misconduct, the rules of evidence in most states and at the federal level generally prohibit the introduction of prior misconduct to show a defendant's propensity to commit a present crime. In response, the federal government and numerous state legislatures have adopted rules of evidence that permit the introduction of prior sexual misconduct in cases where a defendant is charged with a sexual crime.

While commentators have written in great detail about federal …

All Your Air Right Are Belong To Us, Chad J. Pomeroy

Faculty Articles

Privacy and property rights are tricky subjects for a variety of reasons. One reason is that they have a unique relationship with each other, and this Article focuses on one of those areas of intersection—that of air rights and invasion of privacy. This is a timely topic due to the advent of drones, and this Article will argue that drone surveillance constitutes common law trespass and that any statute or regulation that permits such activity is in derogation of common law and so should be subject to particularly careful thought and consideration.

This is not as straightforward a thesis as …

The Possibility Of Private Rights And Duties, Adam J. Macleod

Faculty Articles

Is it possible for us to know what we owe others, or do we need the state to tell us? To ask the question this way could be understood as a provocation. It might suggest that the possibility of private rights and duties - a possibility that common law takes for granted and which lawyers witness in their daily practice threatens the foundations of the legal realist jurisprudential project and the liberal political project. But it is not my intention here to attack those projects. I simply want to consider the possibility that legal realism and liberalism might not be …

The Law As Bard: Extolling A Culture's Virtues, Exposing Its Vices, And Telling Its Story, Adam J. Macleod

Faculty Articles

Before literacy rates in the English speaking world reached their apex (and long before they dropped into the trough they are now thought to occupy), before we commoners read newspapers (and long before we wrote blogs), before autobiographies crowded book shelves (and long before reality television created celebrities out of rather mean raw material), our cultural forebears appointed a rather singular individual to preserve for their children a record of their values, rituals, institutions, and assumptions: the bard.

The bard told stories. But the bard didn't tell just any stories. The bard told stories drawn from the fabric of which …

Deterrence And Origin Of Legal System: Evidence From 1950-1999, Michael L. Smith

Faculty Articles

This article offers evidence on legal systems' deterrence of acts that may cause harm, which extends law—and finance—literature comparing common law and civil code systems. Fatality rates from two causes are used to gauge deterrence: (1) motor vehicle accidents and (2) accidents other than motor vehicle. Both vary significantly across countries classified by origin of legal system. The data cover 50 years, offering evidence on evolution of differences over time. Findings for accidents other than motor vehicle are evidence on legal system flexibility, as the diffuse set of causes increases the difficulty of specifying harmful actions ex ante.

Bitter Medicine: A Critical Look At The Mental Health Care Provider’S Duty To Warn In Texas, Charles E. Cantú, Margaret H. Jones Hopson

Faculty Articles

A quarter of a century has passed since Tarasoff v. Regents of the University of California first imposed a duty of care upon mental health care professions for third parties. In Tarasoff, the California Supreme Court held that once a therapist determines, or reasonably should have determined, a patient poses a significant danger of violence to others, the therapist bears a duty to exercise reasonable care to protect the foreseeable victim from that danger.

Tarasoff has since been widely accepted by both legislatures and courts as the basis for imposing the duty of reasonable care upon mental health care professionals …

Appellate Law In The New Millennium: Bridging Theoretical Foundation With Practical Application, Bill Piatt

Faculty Articles

For the appellate lawyer, bridging the gap between theoretical foundation and practical application is an important challenge. An attorney who is unable to bring these two notions together is only partially effective as an advocate. Without a firm theoretical foundation that embraces both the law and policy that underlie the lawyer’s argument, the substance of the appellate advocate’s position will not persuade the court effectively. Similarly, without having mastered the practical side of appellate advocacy, the lawyer will be ineffective in communicating the substance of the argument altogether.

This Symposium provides the appellate specialist and non-appellate attorney alike with a …

Allegheny Airlines, Inc. V. United States (Case Note), Gerald S. Reamey

Faculty Articles

Under Allegheny Airlines, the United States Court of Appeals for the 7th Circuit held that a flying school/aircraft owner is engaged in a joint enterprise with its student pilots and is vicariously liable for the student’s negligent acts. This Court and others have developed the principle that the vicarious liability of an aircraft owner for the actions of the pilot is dependent upon the existence of a principal/agent relationship between the owner and pilot. Courts developed this legal fiction to enable recovery by injured parties against the financially responsible principal, rather than effectively denying recovery by forcing personal judgments against …