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Full-Text Articles in Law

Adr Cases, Jacob Glasser Jan 2014

Adr Cases, Jacob Glasser

Law Student Publications

Description of recent case law regarding alternative dispute resolution.


Transformation, Copyright Infringement, And Fair Use, James Gibson Jan 2014

Transformation, Copyright Infringement, And Fair Use, James Gibson

Law Faculty Publications

A small copyright decision out of the U.S. Court of Appeals for the Seventh Circuit last month has gotten a big reaction from copyright experts. The case is Kienitz v. Sconnie Nation, and it involves an entertaining set of facts.

In the 1960s, there was a young University of Wisconsin student named Paul Soglin, who had an anti-authoritarian streak. He led a number of demonstrations on issues ranging from civil rights to the Vietnam War. Indeed, one particular Vietnam protest, in May 1969, led to his arrest for failure to obey a police officer. That same protest became an ...


Predictability And Nonobviousness In Patent Law After Ksr, Christopher A. Cotropia Jan 2014

Predictability And Nonobviousness In Patent Law After Ksr, Christopher A. Cotropia

Law Faculty Publications

In KSR International Co. v. Teleflex, Inc., the Supreme Court addressed the doctrine of nonobviousness, the ultimate question of patentability, for the first time in thirty years. In mandating a flexible approach to deciding nonobviousness, the KSR opinion introduced two predictability standards for determining nonobviousness. The Court described predictability of use (hereinafter termed "Type I predictability" )-whether the inventor used the prior art in a predictable manner to create the invention-and predictability of the result (hereinafter termed "Type II predictability")-whether the invention produced a predictable result-both as a means for proving obviousness. Although Type I predictability is easily explained ...


A Recount Of The Recount: Obenshain V. Herring, Maggie Bowman Jan 2014

A Recount Of The Recount: Obenshain V. Herring, Maggie Bowman

Law Student Publications

Because of the infrequency of recounts and the lack of judicial institutional knowledge, a plain-English guide is needed to assist judges and attorneys involved in recounts. The purpose of this essay is to provide such a guide as a resource for future Virginia recounts. Part I outlines the process of a recount and discusses how a recount differs from an election contest. Part I also briefly discusses the history of election recounts in Virginia, highlighting the two most recent state-wide recounts, Deeds and Obenshain. Part II delves more deeply into the primary issues encountered by the three-judge panel in Obenshain ...


It's Time For Revenge Porn To Get A Taste Of Its Own Medicine: An Argument For The Federal Criminalization Of Revenge Porn, Taylor Linkous Jan 2014

It's Time For Revenge Porn To Get A Taste Of Its Own Medicine: An Argument For The Federal Criminalization Of Revenge Porn, Taylor Linkous

Law Student Publications

This comment analyzes the various potential legal approaches to dealing with revenge porn and posits that a federal law criminalizing the dissemination of revenge porn is necessary to combat this growing trend. Part II provides background information on revenge porn and further analyzes how the successful relationship between technology and pornography led to the rise of revenge porn. Part III analyzes the different civil remedies currently available to revenge porn victims and argues these are not practicable solutions. Part IV discusses the current state laws criminalizing revenge porn and the legal challenges faced by those affected by revenge porn and ...


The Arbitral Tribunal: Selection And Replacement Of Arbitrators, Chiara Giorgetti Jan 2014

The Arbitral Tribunal: Selection And Replacement Of Arbitrators, Chiara Giorgetti

Law Faculty Publications

The great majority of international investment arbitrations are decided by a three-member arbitral panel, where each party selects one arbitrator, and the presiding arbitrator is selected either by agreement of the parties, the party-appointed arbitrators, or, more often, by a neutral appointing authority. Their selection is not only a characteristic feature of international investment arbitration, but also one of the most important and delicate acts taken by the parties during the proceedings. Indeed, as frequent arbitrator Professor William W. Park noted, while “in real estate the three key elements are ‘location, location, location,’ . . . in arbitration the applicable trinity is ‘arbitrator ...


The Sum Of All Delegated Power: A Response To Richard Primus, The Limits Of Enumeration, Kurt T. Lash Jan 2014

The Sum Of All Delegated Power: A Response To Richard Primus, The Limits Of Enumeration, Kurt T. Lash

Law Faculty Publications

In his provocative article, The Limits of Enumeration, Richard Primus rejects what he calls the “internal-limits canon” and challenges the assumption that the powers of Congress do not add up to a general police power, such that “there are things Congress cannot do, even without reference to affirmative prohibitions like those in the Bill of Rights.” Primus does not claim that federal power actually does amount to a general police power, only that it might. His principal claim is that nothing in the theoretical nature of enumerated power requires an a priori limit on the aggregate scope of delegated authority ...


Reports Of Cases In The Court Of Exchequer In The Time Of King George I (1714 To 1727), William Hamilton Bryson Jan 2014

Reports Of Cases In The Court Of Exchequer In The Time Of King George I (1714 To 1727), William Hamilton Bryson

Law Faculty Publications

This book publishes all of the known law reports from the Court of Exchequer from the reign of King George I, 1714 to 1726, including those in manuscript and those already in print. Most of the ones in print are the short and not very informative reports by William Bunbury. The much more substantial Exchequer reports of Philip Ward and Thomas Browne, which were heretofore unpublished manuscripts, have been conflated with Bunbury's reports and some other miscellaneous case reports.


Predicting A Heart Attack: The Fundamental Opacity Of Extreme Liquidity Risk, William O. Fisher Jan 2014

Predicting A Heart Attack: The Fundamental Opacity Of Extreme Liquidity Risk, William O. Fisher

Law Faculty Publications

After 150 years of business, Lehman Brothers ran out of cash and credit and filed for bankruptcy on September 15, 2008. As a publicly traded company, Lehman had filed all the reports required by U.S. securities law. But the hundreds of pages of words and numbers provided no timely warning of lurking liquidity death. The risks of triparty repurchase financing and the endgame Lehman would have to play if a selfmagnifying credit drain hit were, as it turned out, inherently opaque. Disclosure, the traditional securities law “fix,” was destined to fail in this case, raising the question of whether ...


Still Aiming At The Wrong Target: A Case For Business Method And Software Patents From A Business Perspective, Kristen Jakobsen Osenga Jan 2014

Still Aiming At The Wrong Target: A Case For Business Method And Software Patents From A Business Perspective, Kristen Jakobsen Osenga

Law Faculty Publications

In Part I, I briefly discuss the rise and recent fall of business method patents. Part II covers the scholarly literature discussing business method and software patents. In Part III, I explain the proxy argument that I have made elsewhere and show how it plays in the recent decisions surrounding the patent eligibility of business method and software inventions. I then explain why the analysis of business method and software patents in the literature uses the same proxy-type arguments to avoid more difficult questions of patentability and policy. Finally, I conclude by explaining how business method and software patents, if ...


Trilogy Redux: Using Arbitration To Rebuild The Labor Movement, Ann C. Hodges Jan 2014

Trilogy Redux: Using Arbitration To Rebuild The Labor Movement, Ann C. Hodges

Law Faculty Publications

This Article analyzes the possibility of creating a program to provide representation to workers bound to arbitrate their legal disputes with their employers, while at the same time building a movement to challenge the practice of compulsory arbitration and its impact on workers' rights. First, I briefly review the Supreme Court's recent arbitration jurisprudence and its impact on workers, with a particular focus on the limitations on class actions. Then I move to a discussion of the advantages and challenges to the creation of such a program. Finally, I examine some alternative visions of what such a program might ...


Climate Change Triage, Noah M. Sachs Jan 2014

Climate Change Triage, Noah M. Sachs

Law Faculty Publications

Climate change is the first global triage crisis. It is caused by the overuse of a severely limited natural resource—the atmosphere’s capacity to absorb greenhouse gases—and millions of lives depend on how international law allocates this resource among nations.

This Article is the first to explore solutions for climate change mitigation through the lens of triage ethics, drawing on law, philosophy, moral theory, and economics. The literature on triage ethics—developed in contexts such as battlefield trauma, organ donation, emergency medicine, and distribution of food and shelter—has direct implications for climate change policy and law, yet ...


The Dominance Of Teams In The Production Of Legal Knowledge, Christopher A. Cotropia Jan 2014

The Dominance Of Teams In The Production Of Legal Knowledge, Christopher A. Cotropia

Law Faculty Publications

While collaboration is familiar to some legal researchers, the field, for the most part, does not seem to implicate the large-scale complexity and cost that has become associated with big science. These logistical differences, combined with a very strong cultural preference in legal academic circles for solitary work, could potentially keep team research from dominating the production of legal knowledge to the same extent that it has come to dominate the production of knowledge in other areas. On the other hand, the dominance of team research outputs and a shift towards team research has been observed in social sciences and ...


The Commercial Law Of Intellectual Property, David Frisch Jan 2014

The Commercial Law Of Intellectual Property, David Frisch

Law Faculty Publications

The Commercial Law of Intellectual Property provides comprehensive, in-depth analysis of the intersection of commercial law and intellectual property rights, including discussion of all applicable U.C.C. sections and other relevant legislation, as well as discussion of hundreds of cases in which intellectual property interests have been subject to U.C.C. provisions, with attention to such critical areas.


Small Fry In Copyright Litigation, James Gibson Jan 2014

Small Fry In Copyright Litigation, James Gibson

Law Faculty Publications

In two of my earlier entries in this series, I discussed the results of an empirical study of copyright cases that I have been doing with my colleague Chris Cotropia. One of those entries focused on how hard the parties in copyright lawsuits fightagainst each other, and the other focused on the role of major media companies in copyright litigation.

In this entry, I will continue to talk about the parties that we observed in our study, but instead of discussing major media companies, I will concentrate on the other end of the spectrum: the individual as a party. This ...


Corruption, Corporations, And The New Human Right, Andrew B. Spalding Jan 2014

Corruption, Corporations, And The New Human Right, Andrew B. Spalding

Law Faculty Publications

We should no longer expect the Alien Tort Statute to be the principal federal statute that deters overseas corporate rights violations. That distinction rightly belongs to the Foreign Corrupt Practices Act, an antibribery statute that rests on undisputed principles of corporate liability, contains a clear congressional statement of extraterritorial application, and routinely collects penalties from multinational corporate defendants. Scholars have not associated the FCPA with human rights, owing principally to a thin understanding of rights theory. But freedom from corruption can and should be understood as a human right, one that is as old as social contract theory but new ...


Patent Claim Interpretation Review: Deference Or Correction Driven?, Christopher A. Cotropia Jan 2014

Patent Claim Interpretation Review: Deference Or Correction Driven?, Christopher A. Cotropia

Law Faculty Publications

This Article examines the Federal Circuit's review of claim constructions by lower tribunals to determine whether the Federal Circuit defers to lower court constructions or is making its own, independent determination as to the "correct" construction and ultimate result in the case.


From The 2014 World Cup To The 2016 Olympics: Brazil's Role In The Global Anti-Corruption Movement, Andrew B. Spalding Jan 2014

From The 2014 World Cup To The 2016 Olympics: Brazil's Role In The Global Anti-Corruption Movement, Andrew B. Spalding

Law Faculty Publications

This Comment is the first in a series of publications on Brazil's efforts and, we hope, its successes in reducing corruption in the 2016 Olympic Games. It is written as part of a course at the University of Richmond School of Law entitled "Brazil, Corruption, and the 2016 Summer Olympics"-the co-authors are eight students and their pro- fessor. While the ultimate product will be a comprehensive analysis of the role of Brazilian law in controlling corruption, this Comment has a more modest purpose. It will discuss the various trends and forces that have converged on Brazil's hosting ...


The Supreme Court Chipping Away At Title Vii: Strengthening It Or Killing It?, Henry L. Chambers, Jr. Jan 2014

The Supreme Court Chipping Away At Title Vii: Strengthening It Or Killing It?, Henry L. Chambers, Jr.

Law Faculty Publications

Whether the Court's chipping away at Title VII is an attempt to make Title VII into a 21st century diamond, or an attempt to make it a 21st century pile of diamond dust, or merely an attempt to interpret Title VII consistent with its text is a matter of opinion. This Article explores how the Court is interpreting and reinterpreting Title VII and necessarily considers whether the Court's reinterpretation will likely reinvigorate or damage Title VII' s broad goal of workplace equality. This Article tentatively considers what may be next for Title VII. Part I briefly discusses Title ...


Copyright's Topography: An Empirical Study Of Copyright Litigation, Christopher A. Cotropia, James Gibson Jan 2014

Copyright's Topography: An Empirical Study Of Copyright Litigation, Christopher A. Cotropia, James Gibson

Law Faculty Publications

One of the most important ways to measure the impact of copyright law is through empirical examination of actual copyright infringement cases. Yet scholars have universally overlooked this rich source of data. This study fills that gap through a comprehensive empirical analysis of copyright infringement litigation, examining the pleadings, motions, and dockets from more than nine hundred copyright lawsuits filed from 2005 through 2008. The data we collect allow us to examine a wide variety of copyright issues, such as the rate of settlements versus judgments; the incidence of litigation between major media companies, small firms, and individuals; the kinds ...


The Problem Of Deterring Extraterritorial White-Collar Crime, Andrew B. Spalding Jan 2014

The Problem Of Deterring Extraterritorial White-Collar Crime, Andrew B. Spalding

Law Faculty Publications

Recent reports of egregious labor practices in China and Bangladesh have called public attention to the potential harms of foreign direct investment (FDI) in developing countries. The best, or at least most obvious, tool for reducing destructive overseas business practices would seem to be the extraterritorial application of white-collar criminal law. The "holy grail" of contemporary criminal law is deterrence, and the deterrence literature is largely shaped by the paradigm of law and economics. Prominent within that literature is Polinsky and Shavell's "enforcement authority," which seeks to maximize social utility through the efficient deterrence of crime.a Guided by ...


Formerly Manufacturing Entities: Piercing The Patent Troll Rhetoric, Kristen Jakobsen Osenga Jan 2014

Formerly Manufacturing Entities: Piercing The Patent Troll Rhetoric, Kristen Jakobsen Osenga

Law Faculty Publications

Everyone hates patent trolls-those companies that "hijack somebody else's idea" and use the patents to "extort some money" from companies that actually make things. But, despite the rhetoric, not all patent trolls are created equal. This Article is the first to focus on one type of patent troll the formerly manufacturing entity. These patent trolls used to make or do something in commerce, but now derive all or a significant portion of their income through licensing their intellectual property. Using case study analysis, this Article demonstrates that formerly manufacturing entities do not impose the harms associated with patent trolls ...


Debugging Software's Schemas, Kristen Osenga Jan 2014

Debugging Software's Schemas, Kristen Osenga

Law Faculty Publications

The analytical framework being used to assess the patent eligibility of software and computer-related inventions is fraught with errors, or bugs, in the system. A bug in a schema, or framework, in computer science may cause the system or software to produce unexpected results or shut down altogether. Similarly, errors in the patent eligibility framework are causing unexpected results, as well as calls to shut down patent eligibility for software and computer- related inventions. There are two general schemas that are shaping current discussions about software and computer-related invention patents-that software patents are generally bad (the bad patent schema) and ...


The Cost Of Judicial Error: Stare Decisis And The Role Of Normative Theory, Kurt T. Lash Jan 2014

The Cost Of Judicial Error: Stare Decisis And The Role Of Normative Theory, Kurt T. Lash

Law Faculty Publications

The Supreme Court of the United States has long embraced the doctrine of stare decisis as an appropriate consideration any time the Court considers overruling past precedent. However, because the Court's actual application of the doctrine has been both sporadic and seemingly inconsistent, some scholars (and Justices) have accused the Court of methodological hypocrisy and bad faith. Much of this criticism assumes that, if members of the Supreme Court find certain rule of law values dispositive in one case, they should find those same considerations dispositive in all cases. Failure to do so suggests either incompetence or insincerity. This ...


Judge Posner, Judge Wilkinson, And Judicial Critique Of Constitutional Theory, Kevin C. Walsh Jan 2014

Judge Posner, Judge Wilkinson, And Judicial Critique Of Constitutional Theory, Kevin C. Walsh

Law Faculty Publications

Judge Richard Posner's well-known view is that constitutional theory is useless. And Judge J Harvie Wilkinson III has lambasted constitutional theory for the way in which its "cosmic" aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson-in the popular press, in law review articles, and in books-have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson also deny ...


The Compensation Myth And U.C.C. Section 2-713, David Frisch Jan 2014

The Compensation Myth And U.C.C. Section 2-713, David Frisch

Law Faculty Publications

This article seeks to bring greater discipline to the analysis of market damages by probing two basic assumptions that are routinely made in discussions of section 2-713: (1) that overcompensation concerns justify judicial interference with the buyer's choice of remedy; and (2) that the relevant market price, in all cases, is the market price that the aggrieved buyer would be required to pay if she wished to make a substitute purchase of goods elsewhere.


Not Just Anna Nicole Smith: Cleavage In Bankruptcy, David G. Epstein Jan 2014

Not Just Anna Nicole Smith: Cleavage In Bankruptcy, David G. Epstein

Law Faculty Publications

This is an essay about the unwarranted erosion of two basic bankruptcy principles:the cleavage effect of a debtor's filing of a bankruptcy petition and the equality of treatment of prepetition unsecured claims. These are two of the most fundamental bankruptcy concepts. First courts and then Congress have fashioned rules favoring the prepetition unsecured claims of vendors and lessors that are inconsistent with these concepts. We explore the origins of such favored treatment, question the commonly offered policy justifications, and argue that the prepetition unsecured claims of vendors and lessors generally should be afforded the same treatment in bankruptcy ...


Considering Patricia Millett For The D.C. Circuit, Carl W. Tobias Jan 2014

Considering Patricia Millett For The D.C. Circuit, Carl W. Tobias

Law Faculty Publications

On June 4, Obama nominated three individuals: Patricia Millett, who has argued 32 Supreme Court appeals, Cornelia Pillard, who has won landmark High Court victories, and Robert Wilkins, who had served as a D.C. District Court judge for three years. The court’s allegedly smaller caseloads prompted Republicans to halt yes or no votes for all the nominees. But because well-qualified, moderate nominees warrant thorough consideration and final ballots, their Senate review deserves analysis, which this paper conducts by emphasizing Millett. It first surveys the nominee’s process and then shows how her evaluation concluded.


Is The Truth In The Eyes Of The Beholder? The Perils And Benefits Of Empirical Research In International Investment, Chiara Giorgetti Jan 2014

Is The Truth In The Eyes Of The Beholder? The Perils And Benefits Of Empirical Research In International Investment, Chiara Giorgetti

Law Faculty Publications

Empirical research is the new hot trend in international law. An increasing number of publications include empirical data that aim at strengthening their author's argument. Indeed, empirical data are used to make an argument less fallible, as the author's conclusions are transformed from subjective to objectively proven by the empirical wrap. Professor Catherine Rogers' novel article, The Politics and Empirics of International Investment Arbitrators, highlights important limitations that empirical data may produce in international investment law research.a As such, it is a needed and important contribution to the understanding and development of this type of scholarship, and ...


Traumatic Brain Injury And The Americans With Disabilities Act: Implications For The Social Work Profession, Dale Margolin Cecka Jan 2014

Traumatic Brain Injury And The Americans With Disabilities Act: Implications For The Social Work Profession, Dale Margolin Cecka

Law Faculty Publications

The practice of social work has been greatly affected by the Americans with Disabilities Act of 1990 (ADA). Title I of the statute prohibits discrimination against people with disabilities, including the increasing number of workers who are returning to work after a traumatic brain injury (TBI). This article examines the extent to which the ADA protects those with TBI from being harassed, being denied reasonable workplace accommodations, or suffering other adverse actions related to perceived discrimination. To do so, it relies on judicial decisions from U.S. federal courts involving alleged workplace discrimination of this population. Implications for social work ...