Law Commons^™

Exchanging Information Without Intellectual Property, Michael J. Burstein

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Contracting over information is notoriously difficult. Nearly fifty years ago, Kenneth Arrow articulated a “fundamental paradox” that arises when two parties try to exchange information. To complete such a transaction, the buyer of information must be able to place a value on the information. But once the seller discloses the information, the buyer can take it without paying. The conventional solution to this disclosure paradox is intellectual property. If the information is protected by a patent or a copyright then the seller can disclose the information free in the knowledge that the buyer can be enjoined against making, using, or …

Killing Them With Kindness: Examining "Consumer-Friendly" Arbitration Clauses After At&T Mobility V. Concepcion, Myriam E. Gilles

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The article focuses on the U.S. Supreme Court case AT&T Mobility LLC v. Concepcion, in which California's "Discover Bank rule" was struck by the Court under the Federal Arbitration Act, which was upheld by the California Supreme Court in the court case Discover Bank v. Superior Court. It provides information that the rule is a judge-made rule which depicts that class action waivers are unforceable in arbitration agreements if such agreements are mentioned in standard form consumer contracts.

Traditional Knowledge, Cultural Expression, And The Siren's Call Of Property, Justin Hughes

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Discussions on international legal norms for the protection of TK/TCE have, in their contemporary form, been ongoing since the late 1990s. In that time, our understanding of key issues for a workable system—subject matter, beneficiaries, rights, or protections—have advanced little, if at all. Indeed, as Michael Brown has observed, “vexing questions of origins and boundaries . . . are commonly swept under the rug in public discussions.” Yet even if all those questions were settled, we also need a clear justification or justifications for a new form of intellectual property on the world stage.

Putting State Courts In The Constitutional Driver's Seat: State Taxpayer Standing After Cuno And Winn, Edward A. Zelinsky

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This article explores the implications of the U.S. Supreme Court’s decisions in DaimlerChrysler Corp. v. Cuno and Arizona Christian School Tuition Organization v. Winn. In Cuno and Winn, the Court held that state taxpayers lacked standing in the federal courts. Because the states have more liberal taxpayer standing rules than do the federal courts, Cuno and Winn will not terminate taxpayers’ constitutional challenges to state taxes and expenditures, but will instead channel such challenges from the federal courts (where taxpayers do not have standing) to the state courts (where they do). Moreover, municipal taxpayer standing in the federal courts, which …

Technology As A Driver Within Agencies - The Internet Change Everything, Michael Herz

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No abstract provided.

Revisiting "Special Needs" Theory Via Airport Searches, Alexander A. Reinert

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Controversy has raged since the Transportation Security Administration (TSA) introduced Advanced Imaging Technology, capable of producing detailed images of travelers' bodies, and "enhanced" pat frisks as part of everyday airport travel. In the face of challenges in the courts and in public discourse, the TSA has justified the heightened security measures as a necessary means to prevent terrorist attacks. The purpose of this Essay is to situate the Fourth Amendment implications of the new regime within a broader historical context. Most germane, after the Federal Aviation Administration (FAA) introduced sweeping new screening of air travelers in the 1960s and 1970s …

Procedure In Eclipse: Group-Based Adjudication In A Post-Conception Era, Myriam E. Gilles

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No abstract provided.

Release As Remedy For Excessive Punishment, Alexander A. Reinert

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Although the Eighth Amendment’s prohibition on “cruel and unusual” punishment means different things in different contexts, it plainly forecloses state and federal actors from choosing ex ante to impose a punishment that is either disproportionate or inconsistent with minimum standards of decency. In other words, the Eighth Amendment mandates that no punishment be imposed if the only other choice on the table is an unconstitutional punishment. Although this principle can be gleaned from the disparate strands of Eighth Amendment jurisprudence, its remedial consequence has not been fully implemented. In this Article, I propose that providing a remedy of release from …

Do Religious Tax Exemptions Entangle In Violation Of The Establishment Clause? The Constitutionality Of The Parsonage Allowance Exclusion And The Religious Exemptions Of The Individual Health Care Mandate And The Fica And Self-Employment Taxes, Edward A. Zelinsky

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In Freedom From Religion Foundation v. Geithner, the Freedom From Religion Foundation (FFRF) argues that Code Section 107 and the income tax exclusion that section grants to “minister[s] of the gospel” for parsonage allowances violate the Establishment Clause of the First Amendment. This case has important implications for a new federal law mandating that individuals maintain “minimum essential” health care coverage for themselves and their dependents. That mandate contains two religious exemptions. One of these exemptions incorporates a pre-existing religious exemption from the federal self-employment tax. These sectarian exemptions raise the same First Amendment issues as does the Code’s exclusion …

Rulemaking As Politics, Thirty Years On, Michael Herz

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No abstract provided.

After Class: Aggregate Litigation In The Wake Of At&T Mobility V Concepcion, Myriam E. Gilles, Gary Friedman

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Class actions are on the ropes. Courts in recent years have ramped up the standards governing the certification of damages classes and created new standing requirements for consumer class actions. Most recently, in Wal-Mart v Dukes, the Supreme Court articulated a new and highly restrictive interpretation of the commonality requirement of Rule 23(a). But all of this pales in comparison to the Court's April 2011 decision in AT&T Mobility v Concepcion, broadly validating arbitration provisions containing class action waivers. The precise reach of Concepcion warrants close scrutiny. Our analysis suggests that following Concepcion, some plaintiffs will be able to successfully …

The Photographer's Copyright - Photograph As Art, Photograph As Database, Justin Hughes

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No abstract provided.

Dealing With Doma: Federal Non-Recognition Complicates State Income Taxation Of Same-Sex Relationships, Carlton M. Smith, Edward Stein

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Various states now recognize relationships between people of the same-sex, but due to the Defense of Marriage Act, the federal government does not. In the context of income taxes, this combination of state recognition and federal non-recognition of same-sex relationships produces a significant problem for many same-sex couples and some state taxing authorities. Most states have income tax and, typically, state income tax laws “piggyback” on federal income tax laws. Depending on the state, same-sex couples in legally-recognized relationships must file their state income tax returns as married (either “filing jointly” or “filing separately”), as domestic partners, or as parties …

Tribal Rituals Of The Mdl: A Comment On Williams, Lee, And Borden, Repeat Players In Multidistrict Litigation, Myriam E. Gilles

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No abstract provided.

Pleading As Information-Forcing, Alexander Reinert

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Academics, judges, and practitioners have devoted much attention to the potential impact of the federal pleading standards announced in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Many have criticized Iqbal and Twombly on procedural, substantive, and policy grounds. And although most everyone agrees that the cases mark a break with past liberal pleading rules and have changed pleading practice, there is little agreement about precisely how the cases have affected ultimate outcomes. Indeed, there is much confusion about what exactly the new rules require of a pleader.

In this Article, …

Discovery About Discovery: Sampling Practice And The Resolution Of Discovery Disputes In An Age Of Ever-Increasing Information, Charles M. Yablon, Nick Landsman-Roos

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This Article provides the first extended academic consideration of a new practice adopted by an increasing number of courts to resolve e-discovery disputes — the sampling of a small portion of the information sought in backup or other relatively inaccessible files. We provides a comprehensive overview and statistical analysis of contemporary sampling techniques, identifying issues where sampling practice is inconsistent or where additional guidance appears to be required. Our aim is to provide a coherent theoretical approach to the use of sampling, suggesting “best practices” for many unresolved issues, and locating sampling practice within broader contemporary debates about discovery.

Support Of Non-Biological Children In Jewish Law, J. David Bleich

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Adoption as a legal institution is unknown in Jewish law. Suppression of parental identity, as generally occurs in closed adoption, is banned “lest the earth become filled with licentiousness” (Leviticus 19:29). Rabbinic tradition interprets that verse as expressing concern regarding the possibility of a future incestuous marriage. Nevertheless, raising an orphan in one’s home is regarded as highly meritorious. However, binding obligations of support and maintenance can be undertaken only by means of contract. Such a contract in favor of a stepchild may be verbal if entered into at the time of marriage. Otherwise, a formal kinyan, i.e., one of …

Requiring Miranda Warnings For The Christmas Day Bomber And Other Terrorists, Malvina Halberstam

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No abstract provided.

Public-Private Approaches To Mass Tort Victim Compensation: Some Thoughts On The Gulf Coast Claims Facility, Myriam E. Gilles

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No abstract provided.

Racial Inclusion, Exclusion And Segregation In Constitutional Law, Michelle Adams

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In Part I of the Article, I examine early cases in which the Court described segregation as a form of resource "lock-up." In several cases leading up to Brown, the Court detailed how racial segregation allows a more dominant group to hoard substantial societal resources. In these early cases, the Court's focus was on segregation as a mechanism for excluding individuals from valuable benefits on the basis of race; it did not speak explicitly to the harms associated with racial classification schemes. In this Part of the Article, I also return to Brown v. Board of Education and explore the …

Cars In Chapter 13: Does Negative Equity Destroy The Jurisdiction Of The Hanging Paragraph, David G. Carlson

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Roughly speaking, the “hanging paragraph” to Bankruptcy Code 1325(a), enacted in 2005, requires that a debtor pay the full debt on any automobile acquired within 910 days before bankruptcy – a boon for car financiers. Prior to 2005 the debtor had to pay only the appraised value of the car – usually a lesser amount. But the privilege bestowed on car financiers by the hanging paragraph depends on the financier providing “purchase money” credit. About one-third of the time, however, the financier advances funds to repay a prior car loan as part of the “trade-in” of an old vehicle for …

Time To Sever The Dead Hand: Fisk University And The Cost Of The Cy Pres Doctrine, Melanie B. Leslie

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No abstract provided.

Mad Money: Wall Street's Bonus Obsession, Jeanne L. Schroeder

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No abstract provided.

Money As Measure, David G. Carlson

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No abstract provided.

The Constitutional Subject, Its Other, And The Perplexing Quest For An Identity Of Its Own: A Reply To My Critics, Michel Rosenfeld

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In my book The Identity of the Constitutional Subject (2010) I examined the nexus between constitutionalism, particular constitutions and constitutional identity. I argued that the construction and adaptation of a constitutional identity was essential to the coherence and viability of any working constitution. Such constitutional identity must at once negate and incorporate reworked elements of national identity and other pertinent pre- and extra- constitutional materials associated with the relevant polity. In the present essay, I reply to arguments advanced by several critics of my book with a view to clarifying and expanding on some of the book’s principal assertions. The …

Planning Positivism And Planning Natural Law, Martin J. Stone

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Scott Shapiro offers an elaboration and defense of “legal positivism,” in which the official acceptance of a plan figures as the central explanatory notion. Rich in both ambition and insight, Legality casts an edifying new light on the structure of positive law and its officialdom. As a defense of positivism, however, it exhibits the odd feature that its main claims will prove quite acceptable to the natural lawyer. Perhaps this betokens – what many have begun to suspect anyway – that our usual tests for classifying legal theories (as positivist or not) are, in the present state of discussion, no …

New York Tax Warrants: In The Strange World Of Deemed Judgments, David G. Carlson

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No abstract provided.