Law Commons^™

Level Of Skill And Long-Felt Need: Notes On A Forgotten Future, Joe Miller

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The Supreme Court's KSR decision transforms the way we think about patent law's ordinary artisan. The ordinary artisan, the Supreme Court states, is also a person of ordinary creativity, not an automaton. This transformation, which sweeps aside a contrary precept that had informed the Federal Circuit's nonobviousness jurisprudence for a generation, raises a key question: How do we fill out the rest of our conception, in a given case, of the ordinary artisan's level of skill at the time the invention was made? Reaching back to a large vein of case law typified by Judge Learned Hand's decisions about nonobviousness, …

Who Can Be Against Fairness? The Case Against The Arbitration Fairness Act, Peter B. Rutledge

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In this brief essay, I hope to lay out the case against the Arbitration Fairness Act.3 Part I of this Article addresses the “findings” on which the act is premised. It explains how in several respects the current research on arbitration flatly contradicts the premises animating those findings (in other respects, the data is incomplete, so the “findings” at best are better described as “untested hypotheses” or “assumptions”). Part II of this Article explains why postdispute arbitration is not a viable alternative to our present system of enforceable predispute arbitration clauses.

What Your Lender And Mortgage Broker Didn't Tell You: A Call For Disclosure Of Loss Of The Section 580b Anti-Deficiency Protection Upon Refinancing, George Kuney

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California Code of Civil Procedure § 580b protects a California homeowner from a deficiency judgment when the homeowner’s purchase-money lender forecloses upon the home after default. In other words, if the price the lender realized at the foreclosure sale is less than the outstanding amount of the debt, the homeowner will not be liable for the deficiency. Section 580b was enacted to discourage the purchase money lenders from over-valuing real property by requiring a lender to look solely to the collateral’s value for recovery in the event of foreclosure, and to prevent the aggravation of an economic downturn caused by …

Girls In The Juvenile Justice System, Paula Schaefer

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No abstract provided.

Bills Of Sale In Tennessee: An Annotated Model Tennessee Bill Of Sale, Joan Macleod Heminway

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The coauthors have constructed a model bill of sale for use in connection with acquisitions, annotated with footnotes on substantive law and legal drafting issues. This model is intended to serve as a research piece, teaching tool, and practitioner resource. This instrument is part of a series of acquisition agreements and related ancillary contracts and instruments published by Transactions: Tennessee Journal of Business Law beginning in 2003.

Judicial Campaign Oversight Committees' Complaint Handling In The 2006 Elections: Survey And Recommendations, Penny White

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No abstract provided.

Analysis Of The Republic Of Tajikistan's Draft Law 'About Freedom Of Conscience And Religious Unions', Robert C. Blitt

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This article, prepared at the request of the International Center for Not-for-Profit Law (ICNL), provides an article-by-article detailed legal analysis of key shortcomings in Tajikistan's draft law About Freedom of Conscience and Religious Unions.

Based on their analysis, the authors provide recommendations for amendments directed at ensuring that the final draft law complies with Tajikistan's international and domestic human rights obligations.

Law And Governance In The 21st Century Regulatory State, Jason M. Solomon

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Legal scholarship and pedagogy on the regulatory state are at parallel, important junctures, and two new books stand at the cutting edge. The first, Law and New Governance in the EU and the US, edited by Gráinne de Búrca and Joanne Scott, is a collection of works by some of the leading scholars in the "new governance" field. New governance scholars have both described and laid the theoretical foundation for what they see as promising and innovative efforts to address public problems. These efforts attempt to be less hierarchical, more transparent, and more democratic than traditional top-down forms of …

Successor Liability In Illinois, George Kuney

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No abstract provided.

Successor Liability In Michigan, George Kuney

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No abstract provided.

Gimme Fiction: Rev. Rul. 99-6, Don Leatherman

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No abstract provided.

Discovery, Judicial Assistance And Arbitration: A New Tool For Cases Involving U.S. Entities?, Peter B. Rutledge

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Limited discovery is one of the regularly cited advantages of international arbitration, as opposed to international litigation, particularly in contrast to litigation in the US. courts. Recent decisions by US. courts, however, have threatened to upend this comparative advantage. Invoking a little known US. law, 28 U.S.C. section 1782, these courts have permitted parties in an arbitration to petition for subpoenas issued by US. courts against their adversaries or third parties. Bucking the trend in the academic literature, which largely supports this development, this article opposes reading section 1782 to authorize subpoenas in support of an arbitration. Not only does …

Are Law Schools Racist?: A "Talk" With Richard Delgado (Symposium: Deconstructing Race: When Reasonable Minds Differ), Dan Subotnik

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No abstract provided.

Are Law Schools Racist? - Part Ii (Symposium: Deconstructing Race: When Reasonable Minds Differ), Dan Subotnik

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No abstract provided.

Crime Doesn't Pay And Neither Do Conflicts Of Interest In Land Use Decisionmaking, Patricia E. Salkin

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Conflicts of interest, bias, and appearance of impropriety continue to plague players in the land use game whose conduct, as public sector officials, must be beyond reproach. This article provides an annual review of reported cases and opinions involving allegations of unethical conduct in land use decision making. Conflicts of interest cases focus on attorneys, and address issues including of counsel relationships, disqualification and fees. Conflicts based upon financial interests for board members are explored, as well as unique relationships that may arise when colleges and universities seek approvals. Criminal aspects of decision maker conduct are also reported. Appearance of …

Law Of The Land – Year In Review, Patricia E. Salkin

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This column reviews trends and interesting cases in land use law as reported on “Law of the Land” during the last half of 2007. “Law of the Land” is a blog created to be of interest to land use lawyers, planners, developers, professors, and students. The blog is updated daily with a review of a recent land use case decided by a state or federal court. In addition, the site has reported on relevant gubernatorial executive orders, offered book reviews, and occasionally starts a discussion on current events issues, such as climate change and has led to robust debate about …

An Analysis Of Death Penalty Decisions From The October 2006 Supreme Court Term (Nineteenth Annual Supreme Court Review, October 2006 Supreme Court Term), Richard Klein

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No abstract provided.

Copulemus In Pace: A Meditation On Rape, Affirmative Consent To Sex, And Sexual Autonomy, Dan Subotnik

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No abstract provided.

An Analysis Of Thirty-Five Years Of Rape Reform: A Frustrating Search For Fundamental Fairness, Richard Klein

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This article will analyze the most significant changes in the manner in which individuals who are charged with the crime of rape are prosecuted for that offense. In the last thirty-five years, there has been a steady erosion of the due process rights of those accused of rape.

The Lawyer Scribe: The Litchfield Law School, Laptops, And The Metaphysics Of Soul-Searching, Louise Harmon

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No abstract provided.

In Memoriam: Professor Joseph J. Beard, Douglas D. Scherer

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No abstract provided.

Land Use Law And Active Living: Opportunities For States To Assume A Leadership Role In Promoting And Incentivizing Local Options, Patricia E. Salkin, Amy Lavine

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Obesity, asthma and nutrition are just three public health challenges facing children and adults that can be addressed through land use planning and zoning. States must take a leadership role in providing statutory authority and guidance for local governments to enact and implement laws and ordinances designed to promote active living. Land use policies, transportation policies, redevelopment policies and open space and recreation policies are key areas where reform is needed. This paper highlights existing examples from various states and offers lawmakers, policymakers and advocates options for reforming state laws to incentivize and influence local actions.

Understanding Community Benefits Agreements: Equitable Development, Social Justice And Other Considerations For Developers, Municipalities And Community Organizations, Patricia E. Salkin, Amy Lavine

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The opportunity to develop a Community Benefits Agreement (CBA) typically arises when a developer announces plans to construct a major project, such as a stadium or a theater complex. Local residents and business owners may often welcome these projects, but they may also have legitimate fears, such as: Will the project displace local residents and local businesses, either physically or through gentrification? Will it cause traffic problems and generate noise, pollution, or other nuisances? Will the economic development benefits espoused by the developer actually create jobs that pay a living wage and offer decent benefits for residents in the neighborhood …

Crossing Borders Into New Ethical Territory: Ethical Challenges When Mediating Cross-Culturally, Harold Abramson

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No abstract provided.

Bernard S. Meyer Et Al., The History Of The New York Court Of Appeals, 1932-2003, Meredith R. Miller

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No abstract provided.

Louis Marshall, Julius Henry Cohen, Benjamin Cardozo, And The New York Emergency Rent Laws Of 1920: A Case Study In The Role Of Jewish Lawyers And Jewish Law In Early Twentieth Century Public Interest Litigation, Samuel J. Levine

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In this Article, Levine examines the litigation surrounding the New York Emergency Rent Laws of 1920. In particular, he focuses upon a series of cases litigated by two of the most prominent Jewish lawyers in United States in the first half of the twentieth century: Louis Marshall and Julius Henry Cohen. Among other notable aspects of the litigation, the cases reached the New York Court of Appeals and the United States Supreme Court, which at that time included two of the most eminent jurists in the history of the United States, Judge Benjamin N. Cardozo and Justice Oliver Wendell Holmes, …

Are We All Dopes? A Behavioral Law & Economics Approach To Legal Regulation Of Doping In Sports, Shawn Crincoli

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No abstract provided.

Negotiating For Social Justice And The Promise Of Community Benefits Agreements: Case Studies Of Current And Developing Agreements, Patricia E. Salkin, Amy Lavine

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A community benefits agreement (CBA) is a private contract negotiated between a prospective developer and community representatives. In essence, the CBA specifies the benefits that the developer will provide to the community in exchange for the community's support, or quiet acquiescence, of its proposed development. The promise of community support may be especially useful to a developer seeking government subsidies or timely project approvals. The CBA is a relative newcomer to the toolbox of strategies that communities may utilize to ensure that development occurs consistent with the sometimes more narrow goals and desires of neighborhood residents, as opposed to the …

The Genesis Of Rluipa And Federalism: Evaluating The Creation Of A Federal Statutory Right And Its Impact On Local Government, Patricia E. Salkin, Amy Lavine

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In 2000, Congress passed, and President Clinton signed, the Religious Land Use and Institutionalized Persons Act (RLUIPA), designed to provide protection from discrimination for the exercise of religion for incarcerated individuals and for those in need of various municipal permits or approvals in order to exercise their religion. With seven years of experience in the courts, this article examines the impact of RLUIPA on local governments across the country through an analysis of how the courts have been interpreting and applying statutory ambiguities and creating inconsistent doctrine in an effort to define terms and implement RLUIPA's protections. Whether an appropriate …

Civil Rights And Related Decisions, Eileen Kaufman

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This article analyzes two cases from the October 2006 Supreme Court Term, Ledbetter v. Goodyear Tire & Rubber Co. and Gonzales v. Carhart. The cases have much in common, even though Ledbetter concerns pay disparity claims based on gender and Gonzales concerns second trimester abortions. Both are five-four decisions which demonstrate how profoundly the appointment of Justice Samuel Alito to occupy Justice Sandra Day O'Connor's seat has affected the balance of power on the Court. The net result of this shift has been a devastating setback for women's rights. Both decisions prompted Justice Ruth Bader Ginsburg to uncharacteristically read aloud …