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Full-Text Articles in Law

What Accounts For The Variation Of Immigration Policies In Western Democracies Since 9/11?, Hayley Mcelroy Jan 2021

What Accounts For The Variation Of Immigration Policies In Western Democracies Since 9/11?, Hayley Mcelroy

Williams Honors College, Honors Research Projects

From the aftermath of the 9/11 terrorist attacks to now, there has been a dramatic change of immigration policies among Western Democracies. This comparative paper will measure the change of refugee acceptance rates and will discover the reasons for these variations. Immigration has become a major issue in the United States as well as in other Western democracies. Even though most of these democracies are located in similar geographic areas and have similar cultures, they all have different approaches when it comes to accepting immigrants and refugees. Furthermore, this paper will analyze the policies of the United States, the ...


Finding A New Home For The Abortion Right Under The Ninth Amendment, Allison N. Kruschke Dec 2020

Finding A New Home For The Abortion Right Under The Ninth Amendment, Allison N. Kruschke

ConLawNOW

This essay advocates locating the foundation of the constitutional right to an abortion in the Ninth Amendment. Using the Ninth Amendment to recognize the right to an abortion, this article argues, is a better path than using the Fourteenth Amendment because it takes the determination of whether an abortion is a protected right outside the moral realm. The analysis under the Fourteenth Amendment of whether a right is “deeply rooted in the tradition” of the United States inevitably stirs a debate about whether the public considers abortion morally acceptable. In recognizing the right to an abortion under the Ninth Amendment ...


The Vampire That Refused To Die: Dracula And Nosferatu, Louis J. D'Alton Dec 2020

The Vampire That Refused To Die: Dracula And Nosferatu, Louis J. D'Alton

Proceedings from the Document Academy

This paper considers the efforts of the Stoker estate to stop an infringing work, Nosferatu, in a new medium while simultaneously attempting to create new vehicles to exploit the legacy of Dracula. Focusing on the works as they pass and transform through overlapping and related frames allows the consideration of both the private and public lives of the document. It also highlights the limitations of policy frames and the continuing relevance of these historical processes in discussions of the document.


Institutionalizing The Centers For Disease Control And Prevention's Independence, Dorit Rubinstein Reiss Oct 2020

Institutionalizing The Centers For Disease Control And Prevention's Independence, Dorit Rubinstein Reiss

ConLawNOW

The United States’ response to the COVID-19 pandemic was sub-optimal. One problem in it was the politicization of the public health response. One aspect of that politicization was aggressive political intervention in the Centers for Disease Control and Prevention (CDC) efforts to provide guidance and help pandemic response. The concern was strong enough that four previous CDC Directors, in an unusual step, published an op-ed calling out political intervention in the CDC. This article proposes two changes to strengthen the CDC’s institutional independence: codifying the CDC’s role in preventing diseases and reducing harms in a statute, and restructuring ...


The Federal Circuit's Treatment Of Rule 12 Dismissals For Lack Of Patent Eligible Subject Matter, Andrew Kanel Jul 2020

The Federal Circuit's Treatment Of Rule 12 Dismissals For Lack Of Patent Eligible Subject Matter, Andrew Kanel

Akron Law Review

After the Supreme Court’s decision in Alice Corp. v. CLS Bank, there has been an increase in Federal Rule of Civil Procedure (Rule) 12 motions to dismiss for lack of patentable subject matter. These motions are often granted at the district court level and are predominantly upheld by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). This trend creates a hostile environment for inventors and patent holders and threatens to curb innovation in various areas including computer software, biotechnology, and medical diagnostics. The Federal Circuit’s current application of the Alice test at the Rule ...


Obviousness-Type Double Patenting: Why It Exists And When It Applies, Daniel Kazhdan Jul 2020

Obviousness-Type Double Patenting: Why It Exists And When It Applies, Daniel Kazhdan

Akron Law Review

At least since 1819, courts have prohibited double patenting—where an inventor has two patents on the same or obvious variations of the same invention. There have always been two basic justifications for prohibiting double patenting. The first focused on the patentee: bad actors might try to improperly extend their patent monopoly by filing serial applications. The second focused on the public’s rights: the bargain of the patent is that in exchange for the inventor getting a term-limited patent, the public is entitled to use the claimed invention (and its obvious variations) once the patent expires. This public-rights rationale ...


A Tale Of Two Copyrights, Glynn S. Lunney Jr. Jul 2020

A Tale Of Two Copyrights, Glynn S. Lunney Jr.

Akron Law Review

This essay explores two possible copyright regimes. The first uses costless and perfect price discrimination to enable copyright owners to capture the full market or exchange value of their work. The second also uses costless and perfect price discrimination, but allows copyright owners to capture only the persuasion cost for authoring and distributing a work. We can call the first regime, costless copyright maximalism, and the second, costless copyright minimalism. The choice between these two regimes is primarily distributional: Should we design copyright to allocate the surplus associated with copyrighted works to copyright owners or to copyright consumers? This essay ...


An Inside History Of The Burger Court's Patent Eligibility Jurisprudence, Christopher B. Seaman, Sheena X. Wang Jul 2020

An Inside History Of The Burger Court's Patent Eligibility Jurisprudence, Christopher B. Seaman, Sheena X. Wang

Akron Law Review

Patent eligibility is one of the most important and controversial issues in intellectual property law. Although the relevant constitutional and statutory text is extremely broad, the Supreme Court has significantly narrowed the scope of patentable eligibility by creating exceptions for inventions directed to abstract ideas, laws of nature, and natural phenomenon. In particular, the Supreme Court’s decisions on this issue over the past decade have created considerable uncertainty regarding the patentability of important innovations. As a result, numerous stakeholders have called for reform of the current rules regarding patent eligibility, and members of Congress have introduced legislation to amend ...


Risk Taking And Rights Balancing In Intellectual Property Law, Clark D. Asay Jul 2020

Risk Taking And Rights Balancing In Intellectual Property Law, Clark D. Asay

Akron Law Review

Scholars have long worried that risk aversion can have significant negative effects in the marketplace. In the intellectual property law domain, some have worried that risk-averse actors can negatively influence the development of important intellectual property law doctrines, which can ultimately hamper innovation. For instance, risk-averse actors may frequently choose to obtain licenses for rights that the relevant laws do not actually require of them. When they do so, they inadvertently increase the scope of intellectual property rights because their risk-averse activities inform courts’ development of key intellectual property law doctrines.

In this Article, prepared as part of the IP ...


The "Evergreening" Metaphor In Intellectual Property Scholarship, Erika Lietzan Jul 2020

The "Evergreening" Metaphor In Intellectual Property Scholarship, Erika Lietzan

Akron Law Review

This article is a plea for changes in the scholarly dialogue about “evergreening” by drug companies. Allegations that drug companies engage in “evergreening” are pervasive in legal scholarship, economic scholarship, medical and health policy scholarship, and policy writing, and they have prompted significant policymaking proposals. This Article was motivated by concern that the metaphor has not been fully explained and that policymaking in response might therefore be premature. It canvasses and assesses the scholarly literature—more than 300 articles—discussing or mentioning “evergreening.” It catalogues the definitions, the examples, and the empirical studies. Scholars use the term when describing certain ...


Correcting Misunderstandings Of Literal Infringement Scope Regarding After-Arising Technologies Protected By The Doctrine Of Equivalents, Joshua D. Sarnoff Jul 2020

Correcting Misunderstandings Of Literal Infringement Scope Regarding After-Arising Technologies Protected By The Doctrine Of Equivalents, Joshua D. Sarnoff

Akron Law Review

Based on conflicting Federal Circuit case law, many academics have written, and many practitioners likely believe, that claim meanings or their applications may expand over time for purposes of literal infringement. But this common wisdom is wrong. Under existing Federal Circuit rules, the first precedent controls in the event of a conflict over doctrine, unless and until reversed en banc. The first precedent on the issue, the 2000 Schering Corp. v. Amgen, Inc. case, held that claim scope does not reach after-arising technologies for literal infringement and suggested that if it did, then such claims would lack written description support ...


Symposium: Pandemics And The Constitution: Calling Their Own Shots: Governors' Emergency Declarations During The Covid-19 Pandemic, Maggie Davis, Christine Gentry, Trudy Henson Jul 2020

Symposium: Pandemics And The Constitution: Calling Their Own Shots: Governors' Emergency Declarations During The Covid-19 Pandemic, Maggie Davis, Christine Gentry, Trudy Henson

ConLawNOW

This paper outlines governors’ powers to combat public health emergencies, and then analyzes specific measures taken by the states in response to the COVID-19 pandemic. State powers to quarantine, isolate, and take other measures to protect the public health and welfare are well-established, going back to the police power reserved for states in the Tenth Amendment and recognized by the U.S. Supreme Court over one hundred years ago. Additionally, most state constitutions and statutes specifically grant governors authority to take a variety of protective measures during emergencies. While large-scale quarantine and isolation orders have not been previously implemented in ...


In A Class Of Its Own: Bristol-Myers Squibb'S Worrisome Application To Class Actions, Grant Mcleod Jun 2020

In A Class Of Its Own: Bristol-Myers Squibb'S Worrisome Application To Class Actions, Grant Mcleod

Akron Law Review

The Supreme Court’s holding in Bristol-Myers Squibb Co. v. Superior Court has far-reaching implications for federally filed class actions. While the case concerned a mass action in the California state courts, the opinion contained strong dicta to suggest its principles of specific jurisdiction could be applied to federal class—an entirely different procedural tool with its own host of complexities and problems. In the three years following the decision, federal district courts are split on how to apply the Bristol-Myers Squibb analysis to class actions. A distinct category of courts have applied the analysis to dismiss absent class members ...


Forensic Searches Of Electronic Devices And The Border Search Exception: Movement Toward Requirement For Particularized Suspicion, Marissa Pursel Jun 2020

Forensic Searches Of Electronic Devices And The Border Search Exception: Movement Toward Requirement For Particularized Suspicion, Marissa Pursel

Akron Law Review

Under current federal law, government agents at the national border have broad discretion to search a traveler seeking to enter or exit the United States. While these government agents would generally need a warrant to conduct the same search elsewhere, searches at the border do not require any degree of suspicion. The policy argument that protects this practice is national security, recognizing the border’s vulnerability to physical threats such as the transportation of contraband and dangerous weapons. Current federal policy, however, makes no distinction between the search of a traveler’s suitcase and the search of her smartphone. The ...


Appellate Jurisdiction And The Emoluments Litigation, Adam N. Steinman Jun 2020

Appellate Jurisdiction And The Emoluments Litigation, Adam N. Steinman

Akron Law Review

This article—part of a symposium on federal appellate procedure—addresses questions of appellate jurisdiction that have played an important role in litigation challenging Donald Trump’s conduct under the Constitution’s Emoluments Clauses. When federal trial judges in the District of Columbia and Maryland rejected Trump’s early attempts to dismiss two of these cases, Trump sought immediate relief from the federal courts of appeals rather than allowing the litigation to proceed in the district courts. The lack of a traditional final judgment, however, prompted difficult jurisdictional issues for the D.C. Circuit and the Fourth Circuit.

In both ...


Three Ideas For Discretionary Appeals, Bryan Lammon Jun 2020

Three Ideas For Discretionary Appeals, Bryan Lammon

Akron Law Review

Discretionary appeals currently play a limited role in federal appellate jurisdiction. But reformers have long argued for a larger role. And any wholesale reform of the current appellate-jurisdiction system will likely involve additional or expanded opportunities for discretionary appeals. In this essay, I offer three ideas for the future of discretionary appeals—what form they might take in a reformed system of federal appellate jurisdiction and how we might learn about their function. First, remove any limits on the types of decisions that can be certified for immediate appeal under 28 U.S.C. § 1292(b). Second, give parties one ...


The Renaissance Of Permissive Interlocutory Appeals And The Demise Of The Collateral Order Doctrine, Michael E. Solimine Jun 2020

The Renaissance Of Permissive Interlocutory Appeals And The Demise Of The Collateral Order Doctrine, Michael E. Solimine

Akron Law Review

Reserving appeals to final judgments has a long history in the federal courts, as do exceptions to that rule. The problem has less been the existence of the exceptions, but rather their scope and application. This article addresses two of those exceptions. One is permissive interlocutory appeals codified in section 1292(b) of the Judicial Code. That exception, requiring the permission of both the trial and appellate courts, has numerous advantages over other exceptions, has been frequently touted as such by the Supreme Court, and has been applied in several recent high-profile cases. In contrast, the collateral order doctrine, an ...


Judicial Disqualification On Appeal, Cassandra Burke Robertson, Gregory Hilbert Jun 2020

Judicial Disqualification On Appeal, Cassandra Burke Robertson, Gregory Hilbert

Akron Law Review

Adjudication by an impartial decision maker is one of the cornerstones of due process. The interest is so fundamental that constitutional due process guards against even the appearance of partiality, and federal judges are statutorily required to disqualify themselves in any proceeding in which their impartiality “might reasonably be questioned.” Courts and scholars alike have struggled with what it means to “reasonably question” a judge’s impartiality. That question has taken on greater salience in recent years, as deepening partisan divisions have increasingly led parties to express skepticism of judicial neutrality.

When a party files a motion to disqualify a ...


Signed Opinions, Concurrences, Dissents, And Vote Counts In The U.S. Supreme Court: Boon Or Bane? (A Response To Professors Penrose And Sherry), Joan Steinman Jun 2020

Signed Opinions, Concurrences, Dissents, And Vote Counts In The U.S. Supreme Court: Boon Or Bane? (A Response To Professors Penrose And Sherry), Joan Steinman

Akron Law Review

Some commentators recently have argued for changes in how United States Supreme Court Justices communicate with everyone except perhaps other Justices of the Supreme Court and the Justices' assistants. Specifically, some commentators have urged that signed opinions and separate opinions, such as concurrences and dissents, stop being published in the official reports. One commentator also has advocated non‑publication of the vote count in Supreme Court decisions. Another has demanded unanimity, as required by due process.

In this piece, I offer my thoughts in response to these proposals.

I argue several reasons to doubt that a prohibition on publication of ...


Fixing The Broken System Of Assessing Criminal Appeals For Frivolousness, Andrew S. Pollis Jun 2020

Fixing The Broken System Of Assessing Criminal Appeals For Frivolousness, Andrew S. Pollis

Akron Law Review

This article seeks to end fifty years of confusion over how to proceed when a criminal defendant wants to appeal but appointed counsel sees no basis for doing so.

Practices vary among jurisdictions, but most require counsel to explain the predicament to the court—often at a level of detail that compromises the duty of loyalty to the client. Most also require the court to double-check counsel’s conclusion by conducting its own independent review of the record, thus burdening judges and blurring the important line between judge and advocate. And at no point in this process does the defendant ...


Youth Suffrage: In Support Of The Second Wave, Mae C. Quinn, Caridad Dominguez, Chelsey Omega, Abrafi Osei-Kofi, Carlye Owens May 2020

Youth Suffrage: In Support Of The Second Wave, Mae C. Quinn, Caridad Dominguez, Chelsey Omega, Abrafi Osei-Kofi, Carlye Owens

Akron Law Review

The 19th Amendment is talked about as central to our nation’s suffrage story, with many situating women's suffrage work within feminist theory "wave" discourse. However, with this telling, scholars and others too frequently overlook young voters and efforts relating to their election law rights. This article seeks to remedy this oversight and complicate the voting rights canon, in addition to supporting efforts of today’s youth voting rights advocates. It does so by turning our attention to youth suffrage movements, which we argue also can be examined by way of a framework of "waves." The first to offer ...


Felony Disenfranchisement And The Nineteenth Amendment, Michael Gentithes May 2020

Felony Disenfranchisement And The Nineteenth Amendment, Michael Gentithes

Akron Law Review

The Nineteenth Amendment and the history of the women’s suffrage movement can offer a compelling argument against felony disenfranchisement laws. These laws leave approximately six million citizens unable to vote, often for crimes wholly unrelated to the political process. They also increasingly threaten gains in female enfranchisement.

Today’s arguments in support of felony disenfranchisement laws bear striking similarities to the arguments of anti-suffragists more than a century earlier. Both suggest that a traditionally subordinated class of citizens is inherently incapable of bearing the responsibility that the right to vote entails, and that their votes are somehow less worthy ...


The Nineteenth Amendment And The U.S. "Women's Emancipation Policy" In Post-World War Ii Occupied Japan: Going Beyond Suffrage, Cornelia Weiss May 2020

The Nineteenth Amendment And The U.S. "Women's Emancipation Policy" In Post-World War Ii Occupied Japan: Going Beyond Suffrage, Cornelia Weiss

Akron Law Review

This paper explores the influence of the Nineteenth Amendment on U.S. military occupation policy in Post-World War II Japan. A mere 25 years after the ratification of the Nineteenth Amendment, actions taken during the military occupation did not stop at suffrage for Japanese women. Actions included a constitution that provided for women’s “equality” (what, even 100 years after the ratification of the Nineteenth Amendment, is still absent in the U.S. constitution). In addition to addressing women’s suffrage and constitutional equality, this paper examines the successes and failures of the Occupation to eradicate the legal enslavement of ...


The Temperance Movement's Impact On Adoption Of Women's Suffrage, Richard H. Chused May 2020

The Temperance Movement's Impact On Adoption Of Women's Suffrage, Richard H. Chused

Akron Law Review

This paper examines the nature of the Progressive Era and the Prohibition Movement and the important links between the sentiments giving rise to prohibition and those stimulating adoption of suffrage. Though each arose from a somewhat distinct array of reform impulses and overcame varying opposition groups, they were closely related in some ways, supported by overlapping groups of people, advanced by large numbers of women, and, in part, lifted to enactment by similar motivations. Indeed, without the support of many conservative citizens approving both Amendments, it is not clear what the fate of suffrage would have been after World War ...


"A Woman Stumps Her State": Nellie G. Robinson And Women's Right To Hold Public Office In Ohio, Elizabeth D. Katz May 2020

"A Woman Stumps Her State": Nellie G. Robinson And Women's Right To Hold Public Office In Ohio, Elizabeth D. Katz

Akron Law Review

In recognition of the centennial of the Nineteenth Amendment, this essay provides an introduction to a largely overlooked yet essential component of the women’s movement: the pursuit of women’s legal right to hold public office. From the mid-nineteenth century through ratification of the federal suffrage amendment in 1920, women demanded access to appointed and elected positions, ranging from notary public to mayor. Because the legal right to hold office had literal and symbolic connections to the right to vote, suffragists and antisuffragists were deeply invested in the outcome. Courts and legislatures varied in their responses, with those in ...


Suffragist Prisoners And The Importance Of Protecting Prisoner Protests, Nicole B. Godfrey May 2020

Suffragist Prisoners And The Importance Of Protecting Prisoner Protests, Nicole B. Godfrey

Akron Law Review

This paper examines the role that public exposure to the conditions experienced by suffragist prisoners played in the passage of the Nineteenth Amendment. Using the experience of the suffragists as an example of how prisoner protest impacted democratic debate, the paper argues that robust protection of prisoners’ First Amendment rights is fundamental to the nation’s democratic values and political discourse and debate.

The paper begins with an historical overview of the arrests, convictions, and incarceration of the Silent Sentinels, women who began picketing outside the White House in 1917. Over the course of several months, local officials in the ...


Symposium: Pandemics And The Constitution: Federalism And Contagion: Reevaluating The Role Of The Cdc, Kyle J. Connors May 2020

Symposium: Pandemics And The Constitution: Federalism And Contagion: Reevaluating The Role Of The Cdc, Kyle J. Connors

ConLawNOW

The United States Government’s response to the coronavirus outbreak raises difficult questions of federalism. This essay argues for greater federal leadership and involvement to mount the most effective response to a pandemic. As history shows, a response led by local governments is vulnerable to collective action problems and political impediments. An improved response structure in a contagious disease event would include more federal leadership and policy dictated by the Centers for Disease Control (CDC), to be then effectuated by state and local governments. This power can be exercised either formally, through federal grants, or informally through the influence of ...


Symposium: Pandemics And The Constitution: Pandemic Surveillance - The New Predictive Policing, Michael Gentithes, Harold J. Krent May 2020

Symposium: Pandemics And The Constitution: Pandemic Surveillance - The New Predictive Policing, Michael Gentithes, Harold J. Krent

ConLawNOW

As the fight against the coronavirus pandemic continues, state governments are considering more invasive surveillance to determine who has been exposed to the virus and who is most likely to catch the virus in the future. Widespread efforts to test temperatures have been initiated; calls for contact tracing have increased; and plans have been revealed to allow only those testing positive for the virus’s antibodies (who presumably now are immune) to return to work and travel. Such fundamental liberties may now hinge on the mere probabilities that one may catch the disease or be immune from it.

To assess ...


Symposium: Pandemics And The Constitution: Tiered Scrutiny In A Pandemic, Jeffrey D. Jackson May 2020

Symposium: Pandemics And The Constitution: Tiered Scrutiny In A Pandemic, Jeffrey D. Jackson

ConLawNOW

During this spring of COVID-19, Americans are facing numerous state and local government-imposed restrictions that would have seemed implausible a few short months ago. While many of these restrictions seem to be unquestionably warranted, there have been others that have the potential to negatively impact fundamental rights. From abortion restrictions to gun control, these actions threaten liberty in the name of police powers. During this time of crisis, there is a need for courts to be especially vigilant. Throughout the nation’s history, the concept of emergency power has been used to justify restrictions on the rights of Americans, with ...


Symposium: Pandemics And The Constitution: Positive Constitutionalism In A Pandemic: Demanding Responsibility From The Trump Administration, Ruthann Robson May 2020

Symposium: Pandemics And The Constitution: Positive Constitutionalism In A Pandemic: Demanding Responsibility From The Trump Administration, Ruthann Robson

ConLawNOW

We have become accustomed to conceiving of our constitutional rights as affording protection only against government infringement, but not as granting us any positive rights to claim government protection or action. The circumstances surrounding the COVID-19 pandemic should make us question this reflexive resort to negative constitutionalism. The numerous failures of the present federal Administration to ameliorate and address the pandemic are startling. Even under current doctrinal limits of negative rights, the Administration’s failures should give rise to individual constitutional claims. Most importantly, we should reorient our constitutional frameworks, theories, and doctrines toward recognition of positive rights to health ...