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2013

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Articles 31 - 60 of 207

Full-Text Articles in Law

Reining In Remedies In Patent Litigation: Three (Increasingly Immodest) Proposals, Thomas F. Cotter Jan 2013

Reining In Remedies In Patent Litigation: Three (Increasingly Immodest) Proposals, Thomas F. Cotter

Articles

This essay, which builds on my recent work on the law and economics of comparative patent remedies, presents three proposals relating to the enforcement of domestic patent rights. The first, which may be close to being adopted in the United States, is for the courts and the International Trade Commission (ITC) to adopt a general presumption, grounded in patent law and policy, that patent owners who have committed to license their standard essential patents (SEPs) on fair, reasonable, and nondiscriminatory terms are not entitled to permanent injunctions or exclusion orders, but rather only to a damages in the form of ...


U.K. Refugee Lawyers: Pushing The Boundaries Of Domestic Court Acceptance Of International Human Rights Law, Stephen Meili Jan 2013

U.K. Refugee Lawyers: Pushing The Boundaries Of Domestic Court Acceptance Of International Human Rights Law, Stephen Meili

Articles

This Article analyzes how refugee lawyers in the United Kingdom navigate the tension between state power and international norms. Based on interviews with lawyers representing persons seeking asylum and other forms of refugee protection in the United Kingdom, the Article reveals how these lawyers successfully utilize international human rights treaties on behalf of their clients despite domestic policies making it more difficult for refugees to assert their rights. The Article argues that U.K. refugee lawyers play a critical role in the globalization struggle by encouraging state actors (in this case, the judiciary) to adhere to international norms that might ...


Dynamic Energy Federalism, Hari M. Osofsky, Hannah J. Wiseman Jan 2013

Dynamic Energy Federalism, Hari M. Osofsky, Hannah J. Wiseman

Articles

U.S. energy law and the scholarship analyzing it are deeply fragmented. Each source of energy has a distinct legal regime, and limited federal regulation in some areas has resulted in divergent state and local approaches to regulation. Much of the existing energy law literature reflects these substantive and structural divisions, and focuses on particular aspects of the energy system and associated federalism disputes. However, in order to meet modern energy challenges — such as reducing risks from deepwater drilling and hydraulic fracturing, maintaining the reliability of the electricity grid in this period of rapid technological change, and producing cleaner energy ...


Costly Mistakes: Undertaxed Business Owners And Overtaxed Workers, Mary Louise Fellows, Lily Khang Jan 2013

Costly Mistakes: Undertaxed Business Owners And Overtaxed Workers, Mary Louise Fellows, Lily Khang

Articles

This Article advocates fundamental changes in the federal income tax base by systematically challenging conventional understandings of consumption and investment. As signaled by its title, “Costly Mistakes,” this Article's thesis has to do with the disparate treatment of expenditures incurred by business owners and workers. Where the current tax law treats a business owner's expenditure as investment, the Article sometimes finds consumption and questions why the law should allow the expenditure to be deducted. Where the tax law treats a worker's expenditure as consumption, the Article sometimes finds investment and questions why the law does not allow ...


Behind Closed Doors: What Really Happens When Cops Question Kids, Barry C. Feld Jan 2013

Behind Closed Doors: What Really Happens When Cops Question Kids, Barry C. Feld

Articles

Police interrogation raises difficult legal, normative, and policy questions because of the State's need to solve crimes and obligation to protect citizens' rights. These issues become even more problematic when police question juveniles. For more than a century, justice policies have reflected two competing visions of youth: vulnerable and immature versus responsible and adult-like. A century ago, Progressive reformers emphasized youths' immaturity and created a separate juvenile court to shield children from criminal trials and punishment. 2 By the end of the twentieth century, lawmakers adopted "get tough" policies, which equated adolescents with adults and punished youths more severely ...


The Haennig-Nordmann Papers: Two Lawyers In Occupied France, Eric Freedman, Richard H. Weisberg Jan 2013

The Haennig-Nordmann Papers: Two Lawyers In Occupied France, Eric Freedman, Richard H. Weisberg

Articles

No abstract provided.


Roman Roots For An Imperial Presidency: Revisiting Clinton Rossiter's 1948 Constitutional Dictatorship: Crisis Government In The Modern Democracies, David Rudenstine Jan 2013

Roman Roots For An Imperial Presidency: Revisiting Clinton Rossiter's 1948 Constitutional Dictatorship: Crisis Government In The Modern Democracies, David Rudenstine

Articles

No abstract provided.


Erie's Starting Points: The Potential Role Of Default Rules In Structuring Choice Of Law Analysis, Allan Erbsen Jan 2013

Erie's Starting Points: The Potential Role Of Default Rules In Structuring Choice Of Law Analysis, Allan Erbsen

Articles

This contribution to a symposium marking the seventy-fifth anniversary of Erie Railroad Company v. Tompkins is part of a larger project in which I seek to demystify a decision that has enchanted, entangled, and enervated commentators for decades. In prior work I contended that the “Erie doctrine” is a misleading label encompassing four distinct inquiries that address the creation, interpretation, and prioritization of federal law and the adoption of state law when federal law is inapplicable. This article builds from that premise to argue that courts pursuing Erie’s four inquiries would benefit from default rules that establish initial assumptions ...


Panel Discussion Iii: Recognizing And Addressing Immigration Concerns In The Criminal Process, Violeta Chapin, Dan Kesselbrenner, Christina Kleiser Jan 2013

Panel Discussion Iii: Recognizing And Addressing Immigration Concerns In The Criminal Process, Violeta Chapin, Dan Kesselbrenner, Christina Kleiser

Articles

No abstract provided.


Hero For The People, Hero For The Land And Water: Reflections On The Enduring Contributions Of David Getches, Charles Wilkinson Jan 2013

Hero For The People, Hero For The Land And Water: Reflections On The Enduring Contributions Of David Getches, Charles Wilkinson

Articles

No abstract provided.


Technological Cost As Law In Intellectual Property, Harry Surden Jan 2013

Technological Cost As Law In Intellectual Property, Harry Surden

Articles

Changes in the scope of IP legal rights are generally thought to be linked to changes in positive law. This Article argues that shifts in the scope of IP laws are often driven by changes in technological feasibility and not by changes in positive law. Diminishing technological constraint is an under-acknowledged factor driving changes in substantive IP law.

More specifically, there are certain activities that are core to IP law. Such activities include, for example, the copying of creative works in copyright (e.g. duplicating books or music), or the manufacturing of products in patent law. Traditionally, IP legal theory ...


Water Transfers For A Changing Climate, Mark Squillace Jan 2013

Water Transfers For A Changing Climate, Mark Squillace

Articles

The prior appropriation doctrine that dominates the water laws of the Western United States was perhaps the inevitable consequence of the need to manage water resources in a region where the demand for water often exceeds the supply. This doctrine has proved surprisingly clumsy at accommodating changing water needs during times of shortage. Economists have long viewed water markets as an attractive solution for reallocating water to meet the demands of an evolving community of water users. But most western states have been skeptical--sometimes even hostile--to proposed changes in historic water use patterns. This reluctance to encourage the transfer of ...


The Exit Myth: Family Law, Gender Roles, And Changing Attitudes Toward Female Victims Of Domestic Violence, Carolyn B. Ramsey Jan 2013

The Exit Myth: Family Law, Gender Roles, And Changing Attitudes Toward Female Victims Of Domestic Violence, Carolyn B. Ramsey

Articles

This Article presents a hypothesis suggesting how and why the criminal justice response to domestic violence changed, over the course of the twentieth century, from sympathy for abused women and a surprising degree of state intervention in intimate relationships to the apathy and discrimination that the battered women' movement exposed. The riddle of declining public sympathy for female victims of intimate-partner violence can only be solved by looking beyond the criminal law to the social and legal changes that created the Exit Myth.

While the situation that gave rise to the battered women's movement in the 1970s is often ...


Considering Class: College Access And Diversity, Matthew N. Gaertner, Melissa Hart Jan 2013

Considering Class: College Access And Diversity, Matthew N. Gaertner, Melissa Hart

Articles

Each time that the continued legality of race-conscious affirmative action is threatened, colleges and universities must confront the possibility of dramatically changing their admissions policies. Fisher v. University of Texas, which the Supreme Court will hear this year, presents just such a moment. In previous years when affirmative action has been outlawed by ballot initiative in specific states or when the Court has seemed poised to reject it entirely, there have been calls for replacing race-conscious admissions with class-based affirmative action. Supporters of race-conscious affirmative action have typically criticized the class-based alternative as ineffective at maintaining racial diversity. This article ...


The U.N. Security Council's Duty To Decide, Anna Spain Jan 2013

The U.N. Security Council's Duty To Decide, Anna Spain

Articles

When faced with a global crisis within the scope of its mandate, the United Nations Security Council (UNSC or Council) has no obligation to decide whether or not to take action. This Article argues that it should. The UNSC is the only governing body with the legal authority to authorize binding measures necessary to restore peace and security, yet neither the United Nations Charter nor the UNSC's own rules clarify the extent of its obligations. Unlike courts, the UNSC lacks a procedural rule establishing that it has a duty to decide. Unlike the United States Congress, which accepts its ...


Book Review, Peter H. Huang Jan 2013

Book Review, Peter H. Huang

Articles

This review of Leo Katz's book, Why the Law is So Perverse, addresses three questions. First, does Katz draw the appropriate normative conclusions about legal perversities based on their connections to social choice theory? In other words, what are the legal ethics and professionalism implications of his book? Second, how does each of the legal perversities in the book follow from a particular social choice theory result? In other words, what is the precise theoretical connection between each of the legal perversities discussed and an impossibility theorem in social choice theory? Third, can we reinterpret our understanding of the ...


The Jury (Or More Accurately The Judge) Is Still Out For Civil Rights And Employment Cases Post-Iqbal, Suzette M. Malveaux Jan 2013

The Jury (Or More Accurately The Judge) Is Still Out For Civil Rights And Employment Cases Post-Iqbal, Suzette M. Malveaux

Articles

No abstract provided.


Prostitution 3.0?, Scott R. Peppet Jan 2013

Prostitution 3.0?, Scott R. Peppet

Articles

This Article presents an entirely novel approach to prostitution reform focused on incremental market improvement facilitated by information law and policy. Empirical evidence from the economics and sociology of sex work shows that new, Internet-enabled, indoor forms of prostitution may be healthier, less violent, and more rewarding than traditional street prostitution. This Article argues that these existing "Prostitution 2.0" innovations have not yet improved sex markets sufficiently to warrant legalization. It suggests that creating a new "Prostitution 3.0" that solves the remaining problems of disease, violence, and coercion in prostitution markets is possible, but would require removing legal ...


Check Please: Using Legal Liability To Inform Food Safety Regulation, Alexia Brunet Marks Jan 2013

Check Please: Using Legal Liability To Inform Food Safety Regulation, Alexia Brunet Marks

Articles

Food safety is a hotly debated issue. While food nourishes, sustains, and enriches our lives, it can also kill us. At any given meal, our menu comes from a dozen different sources. Without proper incentives to encourage food safety, microbial pathogens can, and do enter the food source--so much so that according to the Centers for Disease Control and Prevention (CDC), each year roughly one in six Americans (or forty-eight million people) gets sick, 128,000 are hospitalized, and 3,000 die of foodborne diseases. What is the optimal way to prevent unsafe foods from entering the marketplace?

Safety in ...


Well-Being Analysis Vs. Cost-Benefit Analysis, John Bronsteen, Christopher Buccafusco, Jonathan S. Masur Jan 2013

Well-Being Analysis Vs. Cost-Benefit Analysis, John Bronsteen, Christopher Buccafusco, Jonathan S. Masur

Articles

No abstract provided.


Critique Of Money Judgment Part Three: Restraining Notices, David Gray Carlson Jan 2013

Critique Of Money Judgment Part Three: Restraining Notices, David Gray Carlson

Articles

New York is virtually unique in permitting lawyers to issue court orders restraining debtors and third parties from conveying away any assets that could be used to satisfy a money judgment. In effect, these orders command the recipient to do nothing, whereas a turnover or garnishment orders the recipient to do something — pay the creditor or sheriff or surrender illiquid property to the sheriff. The weakness and strength of this debt collection tool is assessed at length. The Article also analyzes in detail New York’s Exempt Income Protection Act, enacted in 2008 to force banks to protect the exempt ...


Job's Justice, Arthur J. Jacobson Jan 2013

Job's Justice, Arthur J. Jacobson

Articles

The essay proposes that the book of Job offers nothing less than the anticipation and critique of certain elements in the constitution of Athens, as we understand the constitution of Athens in the works of its principal philosophers.


Four Reforms For The Twenty-First Century, Barry C. Scheck Jan 2013

Four Reforms For The Twenty-First Century, Barry C. Scheck

Articles

No abstract provided.


In Defense Of Flexiphobia: How Training In Intractability Can Help Lawyers In Moments Of Perceived Emergency, Richard H. Weisberg Jan 2013

In Defense Of Flexiphobia: How Training In Intractability Can Help Lawyers In Moments Of Perceived Emergency, Richard H. Weisberg

Articles

No abstract provided.


Do Bad Things Happen When Works Enter The Public Domain?: Empirical Tests Of Copyright Term Extension, Christopher Buccafusco, Paul J. Heald Jan 2013

Do Bad Things Happen When Works Enter The Public Domain?: Empirical Tests Of Copyright Term Extension, Christopher Buccafusco, Paul J. Heald

Articles

The international debate over copyright term extension for existing works turns on the validity of three empirical assertions about what happens to works when they fall into the public domain. Our study of the market for audio books and a related human subjects experiment suggest that all three assertions are suspect. We demonstrate that audio books made from public domain bestsellers (1913-22) are significantly more available than those made from copyrighted bestsellers (1923-32). We also demonstrate that recordings of public domain and copyrighted books are of equal quality. While a low quality recording seems to lower a listener's valuation ...


What's A Name Worth?: Experimental Tests Of The Value Of Attribution In Intellectual Property, Christopher Jon Sprigman, Christopher Buccafusco, Zachary Burns Jan 2013

What's A Name Worth?: Experimental Tests Of The Value Of Attribution In Intellectual Property, Christopher Jon Sprigman, Christopher Buccafusco, Zachary Burns

Articles

Despite considerable research suggesting that creators value attribution – i.e., being named as the creator of a work – U.S. intellectual property (IP) law does not provide a right to attribution to the vast majority of creators. On the other side of the Atlantic, however, many European countries give creators, at least in their copyright laws, much stronger rights to attribution. At first blush it may seem that the U.S. has gotten it wrong, and the Europeans have made a better policy choice in providing to creators a right that they value. But for reasons we will explain in ...


Where Corporations Are: Why Casual Visits To New York Are Bad For Business, Jeanne L. Schroeder, David Gray Carlson Jan 2013

Where Corporations Are: Why Casual Visits To New York Are Bad For Business, Jeanne L. Schroeder, David Gray Carlson

Articles

In this article, we examine the recent case of Hotel 71 Mezz Lender LLC v. Falor (2010), from the New York Court of Appeals. In this case, New York’s highest court held that LLCs are “present” in New York for jurisdictional purposes when the president of the LLC has submitted to New York jurisdiction in an unrelated law suit against him personally, and where the president came to New York for a deposition in that action. This, we claim, was unconstitutional. In addition, the New York Court of Appeals pronounced itself obliged by the United States Constitution to change ...


The Powers Of Congress And The President On Matters That Affect U.S. Foreign Affairs, Malvina Halberstam Jan 2013

The Powers Of Congress And The President On Matters That Affect U.S. Foreign Affairs, Malvina Halberstam

Articles

No abstract provided.


The Irony Of A Faustian Bargain: A Reconsideration Of The Supreme Court's 1953 United States V. Reynolds Decision, David Rudenstine Jan 2013

The Irony Of A Faustian Bargain: A Reconsideration Of The Supreme Court's 1953 United States V. Reynolds Decision, David Rudenstine

Articles

No abstract provided.


Stories Mediators Tell: The Editors' Reflections, Eric R. Galton, Lela P. Love Jan 2013

Stories Mediators Tell: The Editors' Reflections, Eric R. Galton, Lela P. Love

Articles

One year after publication of Stories Mediators Tell, the editors comment in their reflections of the Symposium on the importance of stories generally, on the Symposium articles, and on the state of the modern mediation movement.