Law Commons^™

What Is The Territorial Scope Of The Lanham Act?, Marketa Trimble

Scholarly Works

Since Steele v. Bulova Watch Co., 344 U.S. 280 (1952), the Supreme Court has not addressed the territorial scope of the Lanham Act. Abitron Austria GmbH v. Hetronic International, Inc. is an opportunity for the Court to clarify how its RJR Nabisco extraterritoriality framework applies to the Lanham Act, whether and how current circuit court tests fit into the framework, and whether any of the tests should apply in the second step of the framework.

Community Accountability, M. Eve Hanan, Lydia Nussbaum

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This Essay takes a close look at how the idea of community accountability is used in current transformative and restorative justice efforts, situating the concept within the history of delegalization, or a collection of different efforts to reclaim conflict resolution and public safety from the state. In fact, these efforts to reclaim the authority and means of redressing harm from legal systems may track earlier efforts to reclaim dispute resolution from the state. In Part I, we situate both transformative and restorative justice movements in the history of delegalization while noting essential differences between the objectives of these two reform …

Ethics For Real Estate Lawyers Today, John G. Cameron Jr., Nancy B. Rapoport

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This essay discusses various ethics issues that real estate lawyers experience: everything from new ABA Model Rule 8.4(g) (avoiding discrimination) to rules that apply when a lawyer works from home to technological competence and social media to the attorney-client privilege and to advance conflicts waivers. There is also a social science overlay that discusses why smart people do dumb things.

Reimagining “Reasonableness” Under Section 330(A) In A World Of Technology, Data, And Artificial Intelligence, Nancy B. Rapoport, Joseph R. Tiano Jr.

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Transformations in the legal industry’s supply chain caused by legal technology and innovative service delivery models have triggered the need for courts to reimagine how to assess the reasonableness of legal fees under 11 U.S.C. § 330. In nearly every other industry, when there are changes or fluctuations in supply chain costs, it is typical for the market price paid by end-users or consumers to fluctuate as well. Market forces organically dictate the reasonableness of the market prices in light of current production cost and demand. In contrast, the legal industry hasn’t kept up with a unified, market-driven supply cost …

Pandémie Et Travail De Plateforme: Réglementation Du « Lieu De Travail » Après Le Covid-19 Aux Usa [The Gig And The Platform: Regulating The “Workplace” After The Pandemic], Ruben J. Garcia

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No abstract provided.

Racial Pay Equity In “White” Collar Workplaces, Nantiya Ruan

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Part I outlines the many ways that corporate employers fail in racial equity efforts and the barriers that have been put into place to keep BIPOC workers from succeeding. Drawing from industrial organizational psychology and sociology, I identify six distinct challenges that must be remedied or ameliorated in order for BIPOC to achieve pay equity in the corporate climate. Part II identifies and analyzes the decades of litigation and class action settlements that have tried and failed to address the persistent lack of BIPOC representation in the financial industry. I categorize these cases into three waves of litigation intended to …

Work Hierarchies And Social Control Of Laborers, Nantiya Ruan

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Some labor dynamics transcend place and time: workers provide the labor; management oversees the work; owners capitalize on the fruits of that labor. This hierarchy repeats across nations, industries, and eras. The actors in these stories have set roles and a particular stage to act upon. We are familiar with a narrative wherein the worker is forced to toil under extreme conditions, the manager motivates the worker to produce faster and more, and the owner reaps the rewards. And we usually know where our sympathies lie.

Professor McMurtry-Chubb's latest book, Race Unequals: Overseer Contracts, White Masculinities, and the Formation of …

Work Hierarchies And The Social Control Of Workers, Nantiya Ruan

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Creighton Law Review Symposium on Professor Teri A. McMurtry-Chubb’s book, Race Unequals: Overseer Contracts, White Masculinities, and the Formation of Managerial Identity in the Plantation Economy.

Attorney Competence In The Algorithm Age, Nantiya Ruan

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No abstract provided.

Of Marks And Markets: An Empirical Study Of Trademark Litigation, Jessica M. Kiser, Sean P. Wright, Benjamin P. Edwards

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Trademarks are increasingly valuable assets, and some companies aggressively enforce and protect these assets. Such aggressive tactics can harm small businesses and chill creativity and speech, but trademark owners are routinely told that the law requires them to stop all similar third-party trademark usage or risk abandonment of their rights. While prior scholarship has discussed how the risk of trademark abandonment is quite low, incentives built into trademark law still push companies to court. This Article presents the results of an event study utilizing an established database of trademark infringement cases to provide insight to decisionmakers on whether the stock …

Terror And Tenderness In Criminal Law, M. Eve Hanan

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The criminal legal system is at a crossroads. Calls for abolition are met with calls for modest adjustments or maintenance of the status quo. What frequently emerges from these polarities is a promise that police, prosecutors, judges, and other government actors will use their vast discretion to reduce the harmful excesses of criminal legal practices. Initiatives like “compassionate release,” “second look sentencing,” and the progressive prosecutor’s pledge to “charge with restraint” are examples of this promise to exercise discretion with care. In word choice and design, these discretionary reforms suggest tempering harsh criminal legal practices with leniency and individualized consideration—a …

Promoting Technological Competency Through Microlearning And Incentivization, Eliza Boles

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No abstract provided.

Time’S Up: Against Shortening Statutes Of Limitation By Employment Contract, Meredith R. Miller

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Employers are increasingly adding clauses to contracts with employees that purport to shorten the statutes of limitation for employees to pursue claims against their employers (“SOL Clauses”). SOL Clauses are being imposed on employees in various stages of the contracting process. They have turned up in job applications, offer letters, arbitration clauses, employment agreements and employee handbooks. Where they have been enforced by the courts, the justification has been a prioritization of “freedom of contract” over any other policy concerns. This Article argues that, in the employment context, “freedom of contract” should not be prioritized over other competing concerns, which …

Intentional Discrimination And Haredi Jews, Michael Lewyn

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A discussion of case law involving discrimination suits by Haredi Jews, especially in the land use context.

Using Youtube To Explain Housing, Michael Lewyn

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In 2021, the author ran for Borough President of Manhattan, New York. The author tried to his scholarship into his campaign by producing over twenty Youtube videos, most of which addressed land use and housing policy. The article describes the videos, and evaluates their usefulness.

Law And Redemption: Expounding And Expanding Robert Cover’S Nomos And Narrative, Samuel J. Levine

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This Article explores two interrelated themes that distinguish much of Robert Cover's scholarship: reliance on Jewish sources and the redemption of American constitutionalism. Two pieces of Cover's, Nomos and Narrative and Bringing the Messiah Through the Law: A Case Study, explore these themes, providing complementary views on the potential and limitations of the redemptive power of law. In Nomos and Narrative, Cover develops a metaphor of the law as a bridge, linking the actual to the potential. Bringing the Messiah Through the Law: A Case Study extends the metaphor through the lens of Jewish legal history. Building on Cover's foundation, …

Commentary: Dan Mandelker—A Land-Use Legacy Unlike Any Other, Patricia E. Salkin

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It is an honor to share thoughts about the importance of Professor Daniel Mandelker’s legacy to the field of land-use and zoning law. The word “legacy” means, among other things, “something that is part of your history or that remains from an earlier time.” At ninety-two, he was the longest actively teaching land use law professor in the United States. His academic career began in 1949 when he was appointed an Assistant Professor at Drake Law School, with relatively short stints at the University of Indiana Law School and Columbia Law School, followed by his appointment at Washington University School …

New York’S Professor John R. Nolon: A National Leader In Land Use Law With A Large Impact Across The Hudson Valley And The State Of New York, Patricia E. Salkin, Samuel Stewart

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As Professor John R. Nolon steps down from active law teaching, this article reflects not only on his contributions as a national thought leader in the field, but also on how he has a hand in changing the land use and conservation patterns in New York while promoting affordable housing and combating discrimination.

“The Cruelty Is The Point”: Using Buck V. Bell As A Tool For Diversifying Instruction In The Law School Classroom, Tiffany C. Graham

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Instructors who are looking for opportunities to expose their students to the ways in which intersectional forms of bias impact policy and legal rules can use Buck v. Bell to explore, for instance, the impact of disability and class on the formation of doctrine. A different intersectional approach might use the discussion of the case as a gateway to a broader conversation about the ways in which race and gender bias structured the implementation of sterilization policies around the nation. Finally, those who wish to examine the global impact of American forms of bias can use this case and the …

Recent Case Law On "Coming To The Nuisance", Michael Lewyn

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It is well settled that landowners who come to the nuisance (that is, sue another landowner for nuisance even if they moved to the land after the alleged nuisance began) can sometimes recover for nuisance. But is "coming to the nuisance" merely one factor among many in a nuisance case, or is it completely irrelevant? This article concludes that courts adopt the former view in theory, but in recent years have not actually used "coming to the nuisance" to reject a nuisance claim. In other words, the "coming to the nuisance" defense is like a locked-up weapon: courts say they …

Time Is A Flat Circle: Lessons From Past And Present Conspiracy Theories, Lucy Jewel

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This essay analyzes how conspiracy theories were viewed in the 1990s, particularly in the context of the then-existing debate over racial differences in perception, and how they are dealt with today, where prevalent conspiracy theory adherents are White and conservative (QAnon, Pizzagate, and widespread voter fraud) in the 2020 election). In the 1990s, conflict over conspiracy theories was part of a larger culture war involving critical race theory, conspiracy thinking, truth, reason, and post-modern theory. These cultural flashpoints are obviously still with us today. But now, high-profile persons holding false, unreasonable beliefs often hail from the right and are assailed …

Ethical Implications Of Law Practice Technology, Eliza Boles

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The following CLE materials were prepared by Eliza Boles for presentation on December 6, 2022. Materials were approved by the Tennessee Commission on Continuing Legal Education for two hours of mandated ethics credit.

Limiting Limited Liability: Requiring More Than Mere Subsequence Under Federal Rule Of Evidence 407, Cynara Hermes Mcquillan

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Rule 407 of the Federal Rules of Evidence, the “Subsequent Remedial Measures” Rule, is troubling. This exclusionary rule of evidence prohibits using subsequent remedial measures to demonstrate negligence, culpable conduct, or product defect. But, other than in the title of the rule, the phrase “subsequent remedial measures” does not appear anywhere in the rule’s text and the rule itself does not expressly define what measures fall within its purview. This omission creates space for different judicial interpretations of the rule’s language and ultimately disparate judicial outcomes. Although the Federal Rules of Evidence lend themselves to fact-specific inquiries that can lead …

Lgbtq Youth And The Promise Of The Kennedy Quartet, Michael J. Higdon

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The Supreme Court has only issued four opinions endorsing the constitutional rights of sexual minorities, each of them authored by Justice Anthony Kennedy. These four cases, which this article refers to collectively as “the Kennedy Quartet,” have done much to advance the equality of LGBTQ adults in the United States. The question remains, however, as to what extent those cases likewise protect LGBTQ children. Far from simply being an academic question, this issue has taken on increased urgency as legislators in a number of states—thwarted by the Kennedy Quartet in their ability to target LGBTQ adults—have turned their attentions to …

Financing Rural Health Care, Isaac ("Zack") D. Buck

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No abstract provided.

The Relationship Between Privacy And Antitrust, Maurice Stucke

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This Essay recaps the policymakers’, enforcers’, and scholars’ thinking on the relationship between antitrust and privacy. Currently, the thinking is that improving privacy protection is a necessary, but not sufficient, step to address some of the risks posed by these data-opolies and deter data hoarding, a key source of their power.

The policies proposed in Europe, Asia, Australia, and North America as of early 2022 all assume that with more competition, privacy and well-being will be restored. In looking at the reforms proposed to date, policymakers and scholars have not fully addressed several fundamental issues.

One issue is whether more …

Religious Soft Power In Russian Foreign Policy: Constitutional Change And The Russian Orthodox Church, Robert C. Blitt

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In this policy brief, Robert C. Blitt explores how the Kremlin continues to deepen its reliance on the Russian Orthodox Church-Moscow Patriarchate (ROC) as a lever of soft power in Russian foreign policy. Constitutional amendments ratified in July 2020 suggest that this church-state partnership is poised to grow stronger in the coming years. Recognizing that the ROC’s international undertakings function to echo Kremlin objectives, policymakers should consider scrutinizing church activities and interactions with civil society and government interlocutors, with an eye toward identifying and minimizing opportunities for Kremlin influence and interference.

This policy brief was written as part of the …

The New Due Process: Fairness In A Fee-Driven State, Glenn Harlan Reynolds

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Many parts of the criminal justice system are funded by revenue from "users" -- i.e., the accused, in the form of fines, fees, and forfeitures. Drawing on both existing Supreme Court authority and recent Court of Appeals decisions, we argue that a violation of due process exists when all participants in the criminal justice system, from police to court clerks, to prosecutors and judges, depend on revenues from pleas and convictions in order to function. Instead, we argue that due process demands that the criminal justice system be funded in ways that are not affected by the rate of arrest …

Corporate Governance Reform And The Sustainability Imperative, Christopher Bruner

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Recent years have witnessed a significant upsurge of interest in alternatives to shareholder-centric corporate governance, driven by a growing sustainability imperative—widespread recognition that business as usual, despite the short-term returns generated, could undermine social and economic stability and even threaten our long-term survival if we fail to grapple with associated costs. We remain poorly positioned to assess corporate governance reform options, however, because prevailing theoretical lenses effectively cabin the terms of the debate in ways that obscure many of the most consequential possibilities. According to prevailing frameworks, our options essentially amount to board-versus-shareholder power, and shareholder-versus stakeholder purpose. This narrow …

The Ballad Of Hicks Carmichael: Law, Music, And Popular Justice In Urban Appalachia, William Davenport Mercer

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This article examines a rare folk ballad to revisit an 1888 Tennessee trial that newspapers referred to as the fastest in the country in which the death penalty was involved. If we look at this event using court records and newspapers, it tells a regrettably common story of a court under pressure from the populace skirting the protections of law. However, if we consider the trial as a performative endeavor, we can rightly consider other performative events, like folk songs, not as reflective of official events but as equivalents that help provide insight into the larger motives behind the court’s …