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Full-Text Articles in Law

Priority And Novelty Under The Aia, Robert P. Merges Oct 2012

Priority And Novelty Under The Aia, Robert P. Merges

Faculty Scholarship

The article presents information on the patent system of the U.S. and the transformation in the basic rules due to the enactment of Leahy-Smith America Invents Act. The issues related to critical date for filing patent application, the prior art and the priority contests are discussed. The novelty provisions, statutory issues related to disclosure and creation of grace period and continuity in patent system are also discussed.


Dissolving Cities, Michelle Wilde Anderson Apr 2012

Dissolving Cities, Michelle Wilde Anderson

Faculty Scholarship

During the twentieth century, thousands of new cities took shape across America. Stucco subdivisions sprawled and law followed, enabling suburbs to adopt independent governments. That story is familiar. But meanwhile, something else was also happening. A smaller but sizable number of cities were dying, closing down their municipal governments and returning to dependence on counties. Some were ghost towns, emptied of population. In those places, jobs were lost and families struggled; crops died off and industries moved on. Other dead cities were humming with civic life: places with people but no longer with separate governments. In these cities, citizens from ...


The Fourteenth Amendment And The Unconstitutionality Of Secession, Daniel A. Farber Apr 2012

The Fourteenth Amendment And The Unconstitutionality Of Secession, Daniel A. Farber

Faculty Scholarship

The article presents information on the secession of Virginia from the U.S. Union Army. According to historical study of the constitutional evolution of citizenship, the Civil War signified a struggle over the nature of the community created in 1789. It informs that the Civil War itself and the Fourteenth Amendment to the U.S. constitution, helped to resolve the previously contested issue of the relative priority of state and national allegiance.


Pollution Markets And Social Equity: Analyzing The Fairness Of Cap And Trade, Daniel A. Farber Feb 2012

Pollution Markets And Social Equity: Analyzing The Fairness Of Cap And Trade, Daniel A. Farber

Faculty Scholarship

This Article considers three fairness issues relating to a cap-and-trade system: fairness to industry, fairness to communities disproportionately impacted by pollution, and fairness to low-income energy consumers. First, assuming any compensation of industry is warranted, free allowances would overcompensate firms for the cost of achieving emission reductions; industry should not receive effective ownership of the atmosphere at the public's expense. Second, environmental justice advocates argue that cap-and-trade systems generate pollution hot spots and encourage dirtier plants to continue operating to the detriment of certain disadvantaged communities. However, cap and trade has no intrinsic tendency to produce increased emissions in ...


The Penguin And The Cartel: Rethinking Antitrust And Innovation Policy For The Age Of Commercial Open Source, Stephen M. Maurer Feb 2012

The Penguin And The Cartel: Rethinking Antitrust And Innovation Policy For The Age Of Commercial Open Source, Stephen M. Maurer

Faculty Scholarship

This Article untangles the paradox of OS sharing and asks what judges and policymakers can do to help OS reach its full potential. Part II sets the stage by describing the rise of commercial OS over the past ten years. It also profiles a leading commercial OS collaboration (The Eclipse Foundation) and describes the various design issues that face such organizations. Part III examines how companies make investment decisions in OS, closed source (“CS”), and mixed OS/CS markets. Part IV uses these ideas to analyze when OS collaborations should and should not be permitted under ...


Sprawl's Shepherd: The Rural County, Michelle Wilde Anderson Jan 2012

Sprawl's Shepherd: The Rural County, Michelle Wilde Anderson

Faculty Scholarship

On the far side of World War II, America commenced a revolution in land use. Between 1945 and 1960, something in the order of ten million single-family homes were constructed in suburban subdivisions on land at the urban fringe and in rural areas that was unincorporated prior to, if not after, its development. If counties had exercised stronger land use control over these areas, might our development patterns have turned out differently? What do we know of land use planning by counties, and what role did that legal development play in twentieth-century urban sprawl? Our information about county land use ...


Rethinking Transboundary Ground Water Resources Management: A Local Approach Along The Mexico-U.S. Border, Gabriel E. Eckstein Jan 2012

Rethinking Transboundary Ground Water Resources Management: A Local Approach Along The Mexico-U.S. Border, Gabriel E. Eckstein

Faculty Scholarship

Despite more than forty years of promises to the contrary, neither Mexico nor the United States have shown any inclination to pursue a border-wide pact to coordinate management of the border region’s transboundary ground water resources. As a result, these critical resources – which serve as the sole or primary source of fresh water for most border communities on both sides – are being overexploited and polluted, leaving the local population with little recourse. Imminently unsustainable, the situation portends a grim future for the region.

In the absence of national governmental interests and involvement on either side of the frontier, this ...


Reserved Public Rights In Water, Joseph L. Sax Jan 2012

Reserved Public Rights In Water, Joseph L. Sax

Faculty Scholarship

The article focuses on reserved public rights in water and discusses the water history of the U.S. It describes basic ideas dominating the thinking about water in the western states of the U.S. and reflects on the ideas that water belongs to the people of the state and only use rights could be obtained in water, and that water law must enforce public-interest restrictions on those use rights of water. It discusses California water laws and its eminent domain provisions.


Constitutionalism And The Extreme Poor: New-Dred Scott And The Contemporary "Discrete And Insular Minorities", John A. Powell Jan 2012

Constitutionalism And The Extreme Poor: New-Dred Scott And The Contemporary "Discrete And Insular Minorities", John A. Powell

Faculty Scholarship

This symposium issue addresses a range of questions concerning the Constitution and the poor. In this Essay, I will share some initial thoughts responsive to what has already been presented in this issue of the Drake Law Review and what was discussed during the symposium, and then I will turn to the question at hand and attempt to introduce a few new ideas into the discussion. First, I will address an issue raised by Mr. Shapiro. When I posed the question to him regarding which period, in his view, best represented an appropriate constitutional interpretation and understanding, he answered with ...


Fiat Flux: Evolving Purposes And Ideals Of The Great American Public Law School, Christopher Edley Jr Jan 2012

Fiat Flux: Evolving Purposes And Ideals Of The Great American Public Law School, Christopher Edley Jr

Faculty Scholarship

This Essay describes the changing role of American law schools throughout the twentieth century and proposes a vision for the future's Great American Law School. Since the founding of Berkeley Law, the definition of the legal profession has progressed from an interior orientation, which focused predominately on trial courts and appellate advocacy, to an exterior orientation with wide consideration of other forms of lawyering. Along a second axis, legal pedagogy has progressed from a careerist orientation, which focused on case analysis and advocacy skills, to a more academic orientation that integrates questions of theory and methodology. Analyzing these trends ...


Section 2 Is Dead: Long Live Section 2, Guy-Uriel Charles Jan 2012

Section 2 Is Dead: Long Live Section 2, Guy-Uriel Charles

Faculty Scholarship

No abstract provided.


Slavery In The United States: Persons Or Property?, Paul Finkelman Jan 2012

Slavery In The United States: Persons Or Property?, Paul Finkelman

Faculty Scholarship

No abstract provided.


Qui Tam: Is False Claims Law A Model For International Law?, Paul D. Carrington Jan 2012

Qui Tam: Is False Claims Law A Model For International Law?, Paul D. Carrington

Faculty Scholarship

No abstract provided.


Introduction, Paul Finkelman Jan 2012

Introduction, Paul Finkelman

Faculty Scholarship

No abstract provided.


A Political Show Trial In The Northern District: Oberlin-Wellington Fugitive Slave Rescue Case, Paul Finkelman Jan 2012

A Political Show Trial In The Northern District: Oberlin-Wellington Fugitive Slave Rescue Case, Paul Finkelman

Faculty Scholarship

This chapter from Justice and Legal Change on the Shores of Lake Erie, examines the first important cases ever heard by the U.S. District Court for the Northern District of Ohio. The cases, known as the Oberlin-Wellington Fugitive Slave Cases -- stemmed out of the rescue of a fugitive slave from the custody of a professional slave catcher. The fugitive was seized in Oberlin, and taken to nearby Wellington, and held in hotel while the slave catchers waiting for a train to take them to Columbus. Meanwhile, a mob -- consisting mostly of Oberlin residents, including many Oberlin College faculty and ...


Concentration In Health Care Markets: Chronic Problems And Better Solutions, Barak D. Richman Jan 2012

Concentration In Health Care Markets: Chronic Problems And Better Solutions, Barak D. Richman

Faculty Scholarship

Health care providers with market power enjoy substantially more pricing freedom than monopolists in other markets, for a reason not generally recognized: US-style health insurance. Consequently, monopolies in health care cause undesirable redistribution of wealth and inefficient allocation of resources, both of which burden consumers at levels beyond those of other monopolists. The unusual costliness of monopoly power in health care markets demands far more policy attention than it has received. For starters, the health sector needs a more aggressive antitrust policy that effectively prevents the creation of new provider market power through mergers, alliances, or government immunity. An immediate ...


Fundamental Forces Driving United States And International Financial Regulations Reform, Lawrence G. Baxter Jan 2012

Fundamental Forces Driving United States And International Financial Regulations Reform, Lawrence G. Baxter

Faculty Scholarship

Multiple forces create a systemic crisis of the proportions of the Global Financial Crisis of 2008. Global and domestic financial reform is a difficult and perplexing task, one that is likely to take many years, and one that will surely continue to be shaped by a diverse range of forces. Recent measures remain incomplete and in some cases are even proving to be misdirected. This article considers seven fundamental forces shaping actions on future reform, specifically the (1) long term impact of the Crisis (and all financial crises); (2) increase in the “financialization” of the global economy, seemingly disproportionate to ...


A Whole Lot Of Substance Or A Whole Lot Of Rhetoric? A Perspective On A Whole-Of-Government Approach To Security Challenges, Charles J. Dunlap Jr. Jan 2012

A Whole Lot Of Substance Or A Whole Lot Of Rhetoric? A Perspective On A Whole-Of-Government Approach To Security Challenges, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.


Attorney General Bradford’S Opinion And The Alien Tort Statute, Curtis A. Bradley Jan 2012

Attorney General Bradford’S Opinion And The Alien Tort Statute, Curtis A. Bradley

Faculty Scholarship

In debates over the scope of the Alien Tort Statute (ATS), one historical document has played an especially prominent role. This document is a short opinion by U.S. Attorney General William Bradford, issued in the summer of 1795, concerning the involvement of U.S. citizens in an attack by a French fleet on a British colony in Sierra Leone. Numerous academic articles, judicial opinions, and litigation briefs have invoked the Bradford opinion, for a variety of propositions, and the opinion was discussed by both sides in the oral argument before the Supreme Court in the first hearing in the ...


The 2011 Diane Sanger Memorial Lecture Protecting Investors In Securitization Transactions: Does Dodd–Frank Help, Or Hurt?, Steven L. Schwarcz Jan 2012

The 2011 Diane Sanger Memorial Lecture Protecting Investors In Securitization Transactions: Does Dodd–Frank Help, Or Hurt?, Steven L. Schwarcz

Faculty Scholarship

Securitization has been called into question because of its role in the recent financial crisis. Schwarcz examines the potential flaws in the securitization process and compare how the Dodd–Frank Act treats them. Although Dodd–Frank addresses one of the flaws, it underregulates or fails to regulate other flaws. It also overregulates by addressing aspects of securitization that are not flawed.


Not The Power To Destroy: An Effects Theory Of The Tax Power, Neil S. Siegel, Robert D. Cooter Jan 2012

Not The Power To Destroy: An Effects Theory Of The Tax Power, Neil S. Siegel, Robert D. Cooter

Faculty Scholarship

The Supreme Court’s “new federalism” decisions impose modest limits on the regulatory authority of Congress under the Commerce Clause. According to those decisions, the Commerce Clause empowers Congress to use penalties to regulate interstate commerce, but not to regulate noncommercial conduct. What prevents Congress from penalizing non-commercial conduct by calling a penalty a tax and invoking the Taxing Clause? The only obstacle is the distinction between a penalty and a tax for purposes of Article I, Section 8. In National Federation of Independent Business v. Sebelius (NFIB), the Court considered whether the minimum coverage provision in the Patient Protection ...


Accountability In Patenting Of Federally Funded Research, Arti K. Rai, Bhaven N. Sampat Jan 2012

Accountability In Patenting Of Federally Funded Research, Arti K. Rai, Bhaven N. Sampat

Faculty Scholarship

Bayh-Dole allows academic grantees to patent federally-funded research for purposes of promoting the commercialization of this research. To ensure commercialization goals are achieved, the Act requires grantees to report to funding agencies not only the existence of federally-funded patents but also utilization efforts they and their licensees/assignees are making.

Although reporting is a cornerstone of accountability under Bayh-Dole, information about grantee compliance with reporting requirements is incomplete and dated. In fact, the last significant study of the question dates back to the late 1990s and analyzes only 633 patents. Since that time, concerns have emerged that federally-funded university patents ...


The Emperor Has No Clothes: Confronting The Dc Circuit’S Usurpation Of Sec Rulemaking Authority, James D. Cox, Benjamin J.C. Baucom Jan 2012

The Emperor Has No Clothes: Confronting The Dc Circuit’S Usurpation Of Sec Rulemaking Authority, James D. Cox, Benjamin J.C. Baucom

Faculty Scholarship

In The Emperor Has No Clothes: Confronting the D.C. Circuit’s Usurpation of SEC Rulemaking Authority, Professor James D. Cox of Duke University School of Law & Benjamin J.C. Baucom, recent law clerk to Justice Don R. Willett of the Supreme Court of Texas, argue “that the level of review invoked by the D.C. Circuit in Business Roundtable and its earlier decisions is dramatically inconsistent with the standard enacted by Congress.” They conclude “that the D.C. Circuit has assumed for itself a role opposed to the one Congress prescribed for courts reviewing SEC rules.”


The Liberty Of Free Riders: The Minimum Coverage Provision, Mill’S “Harm Principle,” And American Social Morality, Jedediah Purdy, Neil S. Siegel Jan 2012

The Liberty Of Free Riders: The Minimum Coverage Provision, Mill’S “Harm Principle,” And American Social Morality, Jedediah Purdy, Neil S. Siegel

Faculty Scholarship

In this Article, the authors show that cost-shifting and adverse selection problems link the federalism dimension of the debate over the Affordable Care Act to the doctrinally separate and suppressed individual rights dimension. As the scope of these free-rider problems justifies federal power to require individuals to obtain health insurance coverage, so the very existence of the free-rider problems illuminates the difficulty of arguing directly — as opposed to indirectly through the Commerce Clause — that the minimum coverage provision infringes individual liberty. The interdependence between some people’s decisions to forgo insurance and the well-being of other people means that refusing ...


The Great American Tax Novel, Lawrence A. Zelenak Jan 2012

The Great American Tax Novel, Lawrence A. Zelenak

Faculty Scholarship

Reviewing, David Foster Wallace. The Pale King (Michael Pietsch ed., 2011)


“Early-Bird Special” Indeed!: Why The Tax Anti-Injunction Act Permits The Present Challenges To The Minimum Coverage Provision, Neil S. Siegel, Michael C. Dorf Jan 2012

“Early-Bird Special” Indeed!: Why The Tax Anti-Injunction Act Permits The Present Challenges To The Minimum Coverage Provision, Neil S. Siegel, Michael C. Dorf

Faculty Scholarship

In view of the billions of dollars and enormous effort that might otherwise be wasted, the public interest will be best served if the Supreme Court of the United States decides the present challenges to the Patient Protection and Affordable Care Act (ACA) during its October 2011 Term. Potentially standing in the way, however, is the federal Tax Anti-Injunction Act (TAIA), which bars any “suit for the purpose of restraining the assessment or collection of any tax.” The dispute to date has turned on the fraught and complex question of whether the ACA's exaction for being uninsured qualifies as ...


Regulating Shadow Banking, Steven L. Schwarcz Jan 2012

Regulating Shadow Banking, Steven L. Schwarcz

Faculty Scholarship

Inaugural Address for Boston University Review of Banking & Financial Law's Inaugural Symposium: “Shadow Banking” February 24, 2012.

Although shadow banking is said to be huge, estimated at over $60 trillion, it is not well defined. This short and accessible paper attempts to define shadow banking by identifying its overall scope and its basic characteristics. Based on the definition derived, the paper also conceptually examines how shadow banking can be regulated to try to maximize its efficiencies while minimizing its risks.


Sorrell V. Ims Health And The End Of The Constitutional Double Standard, Ernest A. Young Jan 2012

Sorrell V. Ims Health And The End Of The Constitutional Double Standard, Ernest A. Young

Faculty Scholarship

No abstract provided.


Responses To The Five Questions, Charles J. Dunlap Jr. Jan 2012

Responses To The Five Questions, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.


American Natures: The Shape Of Conflict In Environmental Law, Jedediah Purdy Jan 2012

American Natures: The Shape Of Conflict In Environmental Law, Jedediah Purdy

Faculty Scholarship

There is a firestorm of political and cultural conflict around environmental issues,including but running well beyond climate change. Legal scholarship is in a bad position to make sense of this conflict because the field has concentrated on making sound policy recommendations to an idealized lawmaker, neglecting the deeply held and sharply clashing values that drive, or block, environmental lawmaking. This Article sets out a framework for understanding and engaging the clash of values in environmental law and, by extension,approaching the field more generally. Americans have held, and legislated based upon, four distinct ideas about why the natural world ...