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Faculty Publications

2012

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Articles 1 - 30 of 316

Full-Text Articles in Law

Redlined Text Of The Leahy-Smith America Invents Act (Aia) And Unrelated Sections Of The Patent Act Pending Enactment Of H.R. 6621, Brian J. Love Dec 2012

Redlined Text Of The Leahy-Smith America Invents Act (Aia) And Unrelated Sections Of The Patent Act Pending Enactment Of H.R. 6621, Brian J. Love

Faculty Publications

No abstract provided.


Patent Assertion Entities, Colleen Chien Dec 2012

Patent Assertion Entities, Colleen Chien

Faculty Publications

The DOJ and FTC held a workshop on patent assertion entities on Dec 10 2012. This talk gives an overview of the economics, policy of patent assertion entities drawing upon previous and new empirical work. Using pathbreaking, disruptive techniques and capturing economies of scale, PAEs drive down the cost of patent enforcement. PAEs brought 61% of all patent litigations in 2012, representing fewer defendants than in 2011, because of changes in the patent law. 76% of PAE defendants were sued by a PAE that sued more than 15 defendants, and 61% were sued by a PAE that had brought 8 ...


The Legal Dilemma Of Guantanamo Detainees From Bush To Obama, Linda A. Malone Dec 2012

The Legal Dilemma Of Guantanamo Detainees From Bush To Obama, Linda A. Malone

Faculty Publications

The stage for the Guantanamo detainees’ commission proceedings was set by the interplay between the Executive’s detention powers and the Judiciary’s habeas powers. The Bush administration turned to Congress to provide less than what was required by the court, instead of the minimum deemed necessary to comply with each decision, or to explore another legal argument for not complying. This article examines how the law for the Guantanamo detainees has been shaped by the US courts and by Congress. The article begins by observing the guidelines issued by the Supreme Court for compliance with the constitutional and humanitarian ...


The Age Of Marital Capacity: Reconsidering Civil Recognition Of Adolescent Marriage, Vivian E. Hamilton Dec 2012

The Age Of Marital Capacity: Reconsidering Civil Recognition Of Adolescent Marriage, Vivian E. Hamilton

Faculty Publications

Age at marriage has for decades been the strongest and most unequivocal predictor of marital failure. The likelihood of divorce nears eighty percent for those who marry in mid-adolescence, then drops steadily. Delaying marriage until the mid-twenties reduces one’s likelihood of divorce to thirty percent. Women who marry at age twenty-one or younger, moreover – and one in ten U.S. women do – experience worse mental and physical health, attain less education, and earn lower wages than those who marry later. Post-divorce, they and their children tend to endure even greater economic deprivation and instability than do never-married mothers, who ...


The Incredible Shrinking Confrontation Clause, Jeffrey Bellin Dec 2012

The Incredible Shrinking Confrontation Clause, Jeffrey Bellin

Faculty Publications

Sharp turns in the Supreme Court’s recent Confrontation Clause jurisprudence have left scholars reeling from conflicting emotions: exhilaration, despair, denial, and soon, perhaps, cynical acceptance. While most commentators celebrated the demise of the incoherent Ohio v. Roberts framework, their excitement largely faded as the Court’s decisions in Davis v. Washington and Bryant v. Michigan revealed nascent flaws in the evolving doctrine and sharply curtailed the newly revitalized confrontation right.

Recent scholarship strives to reanimate the jurisprudence by expanding the doctrinal definition of “testimonial” statements – the sole form of evidence that the Court now recognizes as implicating the Confrontation ...


Beyond Law Enforcement: Camreta V. Greene, Child Protection Investigations, And The Need To Reform The Fourth Amendment Special Needs Doctrine, Josh Gupta-Kagan Dec 2012

Beyond Law Enforcement: Camreta V. Greene, Child Protection Investigations, And The Need To Reform The Fourth Amendment Special Needs Doctrine, Josh Gupta-Kagan

Faculty Publications

The Fourth Amendment “special needs” doctrine distinguishes between searches and seizures that serve the “normal need for law enforcement” and those that serve some other “special need,” excusing non-law enforcement searches and seizures from the warrant and probable cause requirements. The Supreme Court has never justified drawing this bright line exclusively around law enforcement searches and seizures but not those that threaten important non-criminal constitutional rights.

Child protection investigations illustrate the problem: Millions of times each year, state child protection authorities search families’ homes, and seize children for interviews about alleged maltreatment. Only a minority of these investigations involve an ...


Civil Rights, Charter Schools, And Lessons To Be Learned, Derek W. Black Dec 2012

Civil Rights, Charter Schools, And Lessons To Be Learned, Derek W. Black

Faculty Publications

Two major structural shifts have occurred in education reform in the past two decades: the decline of civil rights reforms and the rise of charter schools. Courts and policy makers have relegated traditional civil rights reforms that address segregation, poverty, disability, and language barriers to near irrelevance, while charter schools and policies supporting their creation and expansion have rapidly increased and now dominate federal policy. Advocates of traditional civil rights reforms interpret the success of charter schools as a threat to their cause, and, consequently, have fought the expansion of charter schools. This Article argues that the civil rights community ...


Inside Voices: Protecting The Student-Critic In Public Schools, Josie F. Brown Dec 2012

Inside Voices: Protecting The Student-Critic In Public Schools, Josie F. Brown

Faculty Publications

First Amendment doctrine acknowledges the constructive potential of citizens’ criticism of public officials and governmental policies by offering such speech vigilant protection. However, when students speak out about perceived injustice or dysfunction in their public schools, teachers and administrators too often react by squelching and even punishing student-critics. To counteract school officials’ reflexively repressive responses to student protest and petition activities, this Article explains why the faithful performance of public schools’ responsibility to prepare students for constitutional citizenship demands the adoption of a more receptive and respectful attitude toward student dissent. After documenting how both educators and courts have mistakenly ...


The Irony Of Privacy Class Action Litigation, Eric Goldman Dec 2012

The Irony Of Privacy Class Action Litigation, Eric Goldman

Faculty Publications

In the past few years, publicized privacy violations have regularly spawned class action lawsuits in the United States, even when the company made a good faith mistake and no victim suffered any quantifiable harm. Privacy advocates often cheer these lawsuits because they generally favor vigorous enforcement of privacy violations, but this essay encourages privacy advocates to reconsider their support for privacy class action litigation. By its nature, class action litigation uses tactics that privacy advocates disavow. Thus, using class action litigation to remediate privacy violations proves to be unintentionally ironic.


What Is The Fuss About Joint Direct Infringement?: The Saga Of Akamai/Mckesson, Brian J. Love Nov 2012

What Is The Fuss About Joint Direct Infringement?: The Saga Of Akamai/Mckesson, Brian J. Love

Faculty Publications

  • Summary of procedural history and en Banc holding
  • Effect on Litigation in medical devices and computer software fields
  • Effect on patent prosecution
  • Discussion of dissents: Will this case be taken up by the Supreme Court?


Could A Patent Term Reduction Solve The Software Patent Problem?, Brian J. Love Nov 2012

Could A Patent Term Reduction Solve The Software Patent Problem?, Brian J. Love

Faculty Publications

No abstract provided.


Comments On Petherbridge, Et Al., Unenforceability, Brian J. Love Nov 2012

Comments On Petherbridge, Et Al., Unenforceability, Brian J. Love

Faculty Publications

No abstract provided.


Objections To Taxing Resale Of Residential Property Under A Vat, Wei Cui Nov 2012

Objections To Taxing Resale Of Residential Property Under A Vat, Wei Cui

Faculty Publications

The “pre-collection” of tax on imputed consumption generated by owner-occupied housing plays a crucial role in both consumption tax theory and real-world tax regimes. However, even under current VAT systems with the widest tax bases, the taxation of imputed housing consumption is incomplete because pre-existing housing stock is typically not taxed when the VAT is introduced, and because housing value may appreciate after initial sale. In response, some have recommended taxing residential re-sale to capture previously untaxed consumption value. This paper argues that because the incidence of any properly-designed tax on resale will fall only on economic rent and existing ...


The Patent Remedy Dynamic [Georgetown-Stanford Conference], Colleen Chien Nov 2012

The Patent Remedy Dynamic [Georgetown-Stanford Conference], Colleen Chien

Faculty Publications

Panel discussion on the NPEs, patent damages, including review of expert testimony, the effect of RAND and other policies on standard-setting cases at the ITC and in district courts, and other patent remedy issues.


Markets As A Moral Foundation For Contract Law, Nathan B. Oman Nov 2012

Markets As A Moral Foundation For Contract Law, Nathan B. Oman

Faculty Publications

No abstract provided.


Restrictive State And Local Immigration Laws: Solutions In Search Of Problems, Pratheepan Gulasekaram, Karthick Ramakrishnan Nov 2012

Restrictive State And Local Immigration Laws: Solutions In Search Of Problems, Pratheepan Gulasekaram, Karthick Ramakrishnan

Faculty Publications

In the Issue Brief, the authors demonstrate that conventional understandings of why states and localities pass restrictive immigration laws do not hold up under empirical analysis. Rather, the data from their nationwide study of 50 states and over 25,000 local jurisdictions show that “what most subfederal jurisdictions with immigration enforcement laws share is not economic stress or overconsumption of public goods or heightened violent crime, but rather a partisan composition within their legislative and executive branches that is highly receptive to enforcement heavy proposals.” These laws are not, as some have contended, organic local responses to inaction at the ...


Should Frand Patents Get Exclusion Orders?, Colleen Chien Oct 2012

Should Frand Patents Get Exclusion Orders?, Colleen Chien

Faculty Publications

No abstract provided.


Party Polarization And Judicial Review: Lessons From The Affordable Care Act, Neal Devins Oct 2012

Party Polarization And Judicial Review: Lessons From The Affordable Care Act, Neal Devins

Faculty Publications

Congress paid nearly no attention to the Constitution when enacting the Affordable Care Act (ACA) in 2010. Legislative hearings and committee reports ignored the Constitution altogether; legislative debates largely did the same. This Essay both highlights Congress’s indifference to the Constitution when enacting the ACA and examines the reasons behind this legislative failure. In particular, this Essay advances three explanations. First, Congress is generally uninterested in “public goods” like constitutional interpretation. Second, the polarization of Democrats and Republicans in Congress further depresses Congress’s interest in thinking about the Constitution; instead, the majority party seeks to limit opportunities for ...


Elected Judges And Statutory Interpretation, Aaron-Andrew P. Bruhl, Ethan J. Leib Oct 2012

Elected Judges And Statutory Interpretation, Aaron-Andrew P. Bruhl, Ethan J. Leib

Faculty Publications

This Article considers whether differences in methods of judicial selection should influence how judges approach statutory interpretation. Courts and scholars have not given this question much sustained attention, but most would probably embrace the “unified model,” according to which appointed judges (such as federal judges) and elected judges (such as many state judges) are supposed to approach statutory text in identical ways. There is much to be said for the unified model—and we offer the first systematic defense of it. But the Article also attempts to make the best case for the more controversial but also plausible contrary view ...


The Scope Of Trademark Law In The Age Of The Brand Persona, Laura A. Heymann Oct 2012

The Scope Of Trademark Law In The Age Of The Brand Persona, Laura A. Heymann

Faculty Publications

No abstract provided.


Confronting Supreme Court Fact Finding, Allison Orr Larsen Oct 2012

Confronting Supreme Court Fact Finding, Allison Orr Larsen

Faculty Publications

No abstract provided.


Applying Crawford's Confrontation Right In A Digital Age, Jeffrey Bellin Oct 2012

Applying Crawford's Confrontation Right In A Digital Age, Jeffrey Bellin

Faculty Publications

No abstract provided.


Complex And Murky Spatial Planning, Josh Eagle Oct 2012

Complex And Murky Spatial Planning, Josh Eagle

Faculty Publications

No abstract provided.


Beware Of The Diamond Dogs: Why A 'Credentials Alone' Conception Of Probable Cause Violates The Compulsory Process Clause, Colin Miller Oct 2012

Beware Of The Diamond Dogs: Why A 'Credentials Alone' Conception Of Probable Cause Violates The Compulsory Process Clause, Colin Miller

Faculty Publications

In Florida v. Harris, the State has asked the Supreme Court to find that a positive alert by a certified narcotics-detection dog is per se sufficient, in and of itself, to establish probable cause for the search of a vehicle. This essay, to be published in conjunction with Leslie Shoebotham's amici brief in Harris, argues that this "credentials alone" conception of probable cause violates the Compulsory Process Clause.


Side Letters, Incorporation By Reference And Construction Of Contractual Relationships Memorialized In Multiple Writings, Royce De R. Barondes Oct 2012

Side Letters, Incorporation By Reference And Construction Of Contractual Relationships Memorialized In Multiple Writings, Royce De R. Barondes

Faculty Publications

This article will examine the legal principles applicable to contractual relationships memorialized in multiple writings.


Defining Religion Down: Hasanna-Tabor, Martinez, And The U.S. Supreme Court, Carl H. Esbeck Oct 2012

Defining Religion Down: Hasanna-Tabor, Martinez, And The U.S. Supreme Court, Carl H. Esbeck

Faculty Publications

While two recent Supreme Court cases on religious freedom appear sharply at odds, in one material respect they harmonize around an understanding that religion is fully protected only when exercised in private. CLS v. Martinez involved Hastings College of Law. Hastings' regulation of extracurricular organizations was unusual in requiring that any student can join an organization. This all-comers rule had a discriminatory impact on organizations with exclusionary memberships, such as the Christian Legal Society (CLS) which required subscribing to a statement of faith and conduct. The Court acknowledged the discriminatory effect, but said that the Free Speech Clause protects speech ...


The Supremacy Clause As Structural Safeguard Of Federalism: State Judges And International Law In The Post-Erie Era, Sam F. Halabi Oct 2012

The Supremacy Clause As Structural Safeguard Of Federalism: State Judges And International Law In The Post-Erie Era, Sam F. Halabi

Faculty Publications

Against a backdrop of state constitutional and legislative initiatives aimed at limiting judicial use of international law, this Article argues that state judges have, by and large, interpreted treaties and customary international law so as to narrow their effect on state law-making prerogatives. Where state judges have used international law more liberally, they have done so to give effect to state executive and legislative objectives. Not only does this thesis suggest that the trend among state legislatures to limit state judges' use of international law is self-defeating, it also gives substance to a relatively unexplored structural safeguard of federalism: state ...


Empowering Settlors: How Proper Language Can Increase The Enforceability Of A Mandatory Arbitration Provision In A Trust, S. I. Strong Oct 2012

Empowering Settlors: How Proper Language Can Increase The Enforceability Of A Mandatory Arbitration Provision In A Trust, S. I. Strong

Faculty Publications

With hostile trust litigation reaching epidemic proportions, many people within the trust industry are interested in identifying new and less expensive ways to resolve trust-related disputes. Arbitration is often proposed as a possible alternative, although questions exist about whether and to what extent a mandatory arbitration provision found in a trust will be considered enforceable by a court. Up until now, most commentary in this area of law has focused on purely jurisprudential issues, with little attention being paid to the practical efforts that settlors can make to increase the enforceability of arbitration provisions found in trusts. This Article takes ...


Public Forum 2.1: Public Higher Education Institutions And Social Media, Robert H. Jerry Ii, Lyrissa Lidsky Oct 2012

Public Forum 2.1: Public Higher Education Institutions And Social Media, Robert H. Jerry Ii, Lyrissa Lidsky

Faculty Publications

Public colleges and universities increasingly are using Facebook, Second Life, YouTube, Twitter, and other social media communications tools. Yet public colleges and universities are government actors, and their creation and maintenance of social media sites or forums create difficult constitutional and administrative challenges. Our separate experiences, both theoretical and practical, have convinced us of the value of providing guidance for public higher education institutions wishing to engage with their constituents-including prospective, current, and former students and many others-through social media.

Together, we seek to guide public university officials through the complex body of law governing their social media use and ...


Reducing The Discount Rate, Ben L. Trachtenberg Oct 2012

Reducing The Discount Rate, Ben L. Trachtenberg

Faculty Publications

This article presents two arguments against the “discounting” of future human lives as part of cost benefit analysis, or CBA. Our first argument is that because CBA has thus far ignored evidence of rising health care expenditures, it underestimates the “willingness to pay” for health and safety that future citizens will likely exhibit, thereby undervaluing their lives. Our second argument is that until recently CBA has ignored the trend of improved material conditions in developed countries, and most agencies continue to ignore it entirely. As time advances, residents of rich countries tend to live better and spend more, meaning that ...