Law Commons^™

Scope Of The Second Amendment Right – Post-Heller Standard Of Review, Ivan E. Bodensteiner

Law Faculty Publications

This article addresses an important issue not decided by the Court in Heller, i.e., the size or scope of the Second Amendment right identified in that case. Heller is a victory for those opposed to gun control legislation, but it could turn out to be a limited victory, depending on the standard of review adopted to decide Second Amendment challenges to gun control laws. I argue the Court should adopt a heightened rational basis standard that rewards an enlightened legislative process and gives deference to the laws that result from this process. Gun control laws serve an important governmental function, …

Improving Legal Competencies For Obesity Prevention And Control, Wendy Collins Perdue

Law Faculty Publications

Our purpose is to offer action options that will help to improve the legal competencies of public health practitioners and policy decision makers with respect to drafting, interpreting, implementing, and enforcing laws and regulations that are relevant to the effective prevention and control of obesity. The accompanying assessment paper provided a foundation for this agenda by first establishing that legal competence for obesity prevention and control is important for both health professionals, who with proper training can effectively interject health considerations into decision- making processes, and non-health professionals involved with relevant policy and legal work, who with proper training can …

Assessing Legal Competencies For Obesity Prevention And Control, Wendy Collins Perdue

Law Faculty Publications

Obesity is the result of people consistently consuming more calories than they expend. A complex interaction of social and environmental conditions affects both energy consumption and physical activity levels. Health professionals who understand the social and environmental factors related to obesity risk may find it challenging to identify, understand, or develop a strategy to improve the vast array of laws that play a role in shaping our environment and behaviors.

Competency in the use of laws and legal authorities is one of the four core elements of public health legal preparedness. Legal competency" is a particularly important component of a …

Lessons From The Laboratory: The Polar Opposites On The Public Sector Labor Law Spectrum, Ann C. Hodges

Law Faculty Publications

Section I analyzes the legal framework and history of collective bargaining in Illinois, and Section II follows with a similar analysis for Virginia. Each section includes current data about public sector employees and union activity in the two states. Section III follows with a discussion of possible explanations for the differences in the law of the two states. Section IV looks at the lessons from this analysis for state and federal lawmakers, unions, employers, and labor relations advocacy groups.

Should You Use It? Tips On Authenticating Online Legal Sources, Emily M. Janoski-Haehlen

Law Faculty Publications

No abstract provided.

One Person's Junk, Another Person's Treasures: Dissolving A Small Law Book Collection, Gail F. Zwirner

Law Faculty Publications

Decisions to eliminate a book collection occur for various reasons, including retirement, downsizing a home library, or a sweet deal from an online vendor. Law librarians regularly receive inquiries about the purchase or donation of used law books. Many times these calls originate in a law school’s development office after an attorney school seeks his or her law school’s advice on eliminating a significant career investment. An attorney may turn to a law firm librarian for advice as well.

Why Animal Law Matters: Establishing Animal Law Section In Era Of Emerging Issues, Rebecca J. Huss

Law Faculty Publications

"This article defines animal law and discusses some of the areas of practice that deal with animal law issues."

Preserving And Ensuring Long-Term Access To Digitally Born Legal Information, Sarah Rhodes, Dana Neacsu

Law Faculty Publications

Written laws, records and legal materials form the very foundation of a democratic society. Lawmakers, legal scholars and everyday citizens alike need, and are entitled, to access the current and historic materials that comprise, explain, define, critique and contextualize their laws and legal institutions. The preservation of legal information in all formats is imperative. Thus far, the twenty-first century has witnessed unprecedented mass-scale acceptance and adoption of digital culture, which has resulted in an explosion in digital information. However, digitally born materials, especially those that are published directly and independently to the Web, are presently at an extremely high risk …

The Unexceptionalism Of Evolving Standards, Corinna Barrett Lain

Law Faculty Publications

Conventional wisdom is that outside the Eighth Amendment, the Supreme Court does not engage in the sort of explicitly majoritarian state nose-counting for which the "evolving standards of decency" doctrine is famous. Yet this impression is simply inaccurate. Across a stunning variety of civil liberties contexts, the Court routinely-and explicitly--determines constitutional protection based on whether a majority of states agree with it. This Article examines the Supreme Court's reliance on the majority position of the states to identify and apply constitutional norms, and then turns to the qualifications, explanations, and implications of state polling as a larger doctrinal phenomenon. While …

Amazon's Kindle 2: The Copyright Ghost In The Machine, James Gibson

Law Faculty Publications

A number of copyright controversies have caught the public’s eye this year — e.g., the lawsuit over the AP photo of Barak Obama, the feud between Coldplay and Joe Satriani, the debate about Facebook’s policies toward the intellectual property of its users. Yet these disputes, fascinating though they are, involve the application of well-known legal principles. The facts are interesting, but the law is straightforward.

A somewhat less prominent controversy, however, offers a nice example of the frequent collision between copyright law, established business models, and new technologies. In February, Amazon introduced the Kindle 2 — the latest model of …

Describing Patents As Real Options, Christopher A. Cotropia

Law Faculty Publications

This Article continues the use of real options in patent law by taking a step back. The Article proceeds in three parts. Part II describes the concept of real options and catalogs the existing economics and law literature discussing patents as real options. The Article then lays a foundation for previous and future discussions by describing in detail how patents are like real options. Specifically, Part III. identifies the particular patent doctrines that make up the common components of a real option-the option price, the exercise price, the expiration date, and the value of the underlying asset. This descriptive analysis …

The Unreasonableness Of The Patent Office's 'Broadest Reasonable Interpretation' Standard, Christopher A. Cotropia

Law Faculty Publications

This article does what is long overdue: it fully explores the validity of the BRI standard. The previously articulated rationales behind the BRI standard are severely lacking. Not only does the BRI standard fail to provide the advantages touted by the courts that created the standard, the standard is contrary to both the patent statutes and the concept of a unitary patent system. It allows examiners to avoid difficult claim interpretation issues; it leads to improper and uncorrectable denials of patent protection; and it is incurably ambiguous. Given that the BRI standard is severely lacking, the courts and the USPTO …

Constitutional Enforcement By Proxy, John F. Preis

Law Faculty Publications

Americans love their Constitution. But love, as we all know, is blind. This may explain why we often look to constitutional law to vindicate our civil rights while ignoring the potential of sub-constitutional law. Federal courts have not ignored this possibility, however, and have increasingly forced civil rights plaintiffs to seek relief using sub-constitutional law where it is available. A victim of discrimination, for example, might be denied the chance to invoke the Equal Protection Clause and told instead to rely on a federal antidiscrimination statute. In this and other cases, courts seem to believe that constitutional rights can be …

The Case For (Considering) Regulation Of Technology, James Gibson

Law Faculty Publications

Given a choice, which would you prefer: A world in which it is easier to encrypt information than to decrypt it? A world in which decryption is easier than encryption? A world in which the two stand in a cost/benefit equipoise?

When the question is put like that, the answer seems to depend on how we weigh certain core values. For example, if we prefer privacy over order, we might prefer the first world. If we value order more than privacy, perhaps the second world is more to our liking.

As it happens, we live in the first world. Modern …

Is The Family A Federal Question?, Meredith Johnson Harbach

Law Faculty Publications

There has long been conflict over the relationship between the states and the federal system vis-i-vis the family. The traditional account of domestic relations describes family law as the exclusive domain of the states, and federal courts have credited this account in the "domestic relations exception." Although scholars have analyzed and critiqued the exception's applicability to diversity jurisdiction, the intersection of federal question jurisdiction and this exception remains largely unexplored. This Article describes and critiques, on both instrumental and deeper normative terms, federal courts' willingness to expand the "domestic relations exception" to include federal question cases. The Article proceeds in …

Modernizing Patent Law's Inequitable Conduct Doctrine, Christopher A. Cotropia

Law Faculty Publications

This Article's main finding is that the inequitable conduct doctrine has the ability to improve patent quality as long as the inherent tendency to overcomply with the doctrine by overloading the USPTO with information is kept in check. The Article reaches this conclusion by proceeding in five parts. Part II describes the current thinking on the inequitable conduct doctrine, with particular focus on the major critiques of the doctrine and proposed legislative and administrative responses. Part III of the Article begins the construction of a fundamental, conceptual framework for the doctrine by explaining how it impacts both patent quality and …

Book Review: The Cambridge History Of Law In America Vol. 1: Early American (1580-1815), William Hamilton Bryson

Law Faculty Publications

The book under review is a survey of the influence of law on mainland British North America up to about 1815.

Beyond Incorporation, Kurt T. Lash

Law Faculty Publications

Incorporation as a theory of constitutional interpretation is dying. Incorporationist scholars are killing it. In this paper, I argue that they are right to do so, whether they mean to or not. The current incorporation debate bears so little resemblance to the theory of incorporation as it originally emerged at the time of the New Deal that I argue it is time to abandon the metaphor of incorporation altogether and admit that what we are after has nothing to do with incorporated texts from 1787. Our search is for the public understanding of texts added to the Constitution in 1868. …

Book Review: Henry J. Richardson Iii, The Origins Of African-American Interests In International Law, D. A. Jeremy Telman

Law Faculty Publications

This short review evaluates Professor Richardson's book both as a contribution to the history of the Atlantic slave trade and as contribution to critical race theory.

Professor Richardson has read innumerable historical monographs, works of legal and sociological theory, international law and critical race theory. Armed with this store of knowledge, he is able to recount a detailed narrative of African-American claims to, interests in and appeals to international law over approximately two centuries spanning, with occasional peeks both forward and backward in time, from the landing of the first African slaves at Jamestown in 1619 to the 1815 Treaty …

Medellin And Originalism, D. A. Jeremy Telman

Law Faculty Publications

In Medellín v. Texas, the Supreme Court permitted Texas to proceed with the execution of a Mexican national who had not been given timely notice of his right of consular notification and consultation in violation of the United States’ obligations under the Vienna Convention on Consular Relations. It did so despite its finding that the United States had an obligation under treaty law to comply with an order of the International Court of Justice that Medellín’s case be granted review and reconsideration. The international obligation, the Court found, was not domestically enforceable because the treaties at issue were not self-executing. …

The Supreme Court As The Major Barrier To Racial Equality, Ivan E. Bodensteiner

Law Faculty Publications

This Article suggests that the U.S. Supreme Court, through its decisions in cases alleging race discrimination, stands as a major barrier to racial equality in the United States. There are several aspects of its decisions that lead to this result. Between 1868 and 1954, the Equal Protection Clause of the Fourteenth Amendment, while it had been interpreted to strike down a few blatant forms of de jure discrimination, allowed government to separate the races based on the “separate but equal” fiction. Beginning in 1954, Brown and a series of subsequent decisions attacked this fiction, and for a period of nearly …

The Pervasive Nature Of Animal Law: How The Law Impacts The Lives Of People And Their Animal Companions, Rebecca J. Huss

Law Faculty Publications

Faculty members at Valparaiso University School of Law who attain the rank of full professor are expected to deliver an inaugural lecture to the University community and the public at large. This article is based on that lecture, delivered on September 25, 2008. This Article begins by distinguishing between “animal law,” “animal rights,” and “animal welfare” and discussing the growth of the field of animal law. It continues by setting forth the statistics on the number of companion animals in the United States (“U.S.”) and information about the households who have companion animals. The remainder of the article analyzes some …

Helpful Resources For Handling A Domestic Relations Case, Emily M. Janoski-Haehlen

Law Faculty Publications

No abstract provided.

Annoyancetech Vigilante Torts And Policy, Robert F. Blomquist

Law Faculty Publications

The twenty-first century has ushered in demand by some Americans for annoyancetech devices—novel electronic gadgets that secretly fend off, punish, or comment upon perceived antisocial and annoying behaviors of others. Manufacturers, marketers, and users of certain annoyancetech devices, however, face potential tort liability for personal and property damages suffered by the targets of this “revenge by gadget.” Federal, state, and local policymakers should start the process of coming to pragmatic terms with the troubling rise in the popularity of annoyancetech devices. This is an area of social policy that cries out for thoughtful and creative legislative solutions.

The Pragmatically Virtuous Lawyer?, Robert F. Blomquist

Law Faculty Publications

No abstract provided.

The Trouble With Negligence Per Se, Robert F. Blomquist

Law Faculty Publications

No abstract provided.

Draining The Morass: Ending The Jurisprudentially Unsound Unpublication System, David R. Cleveland

Law Faculty Publications

No abstract provided.

Medellin And Originalism, D. A. Jeremy Telman

Law Faculty Publications

In Medellin v. Texas, the Supreme Court permitted Texas to proceed with the execution of a Mexican national who, in violation of the United States’ obligations under the Vienna Convention on Consular Relations, had not been given timely notice of his rights of consular notification and consultation. It did so despite its finding that the United States had an obligation under treaty law to comply with an order of the International Court of Justice that Medellin’s case be granted review and reconsideration. The international obligation, the Court found, was not domestically enforceable because the treaties at issue were not self-executing. …

Overturning The Last Stone: The Final Step In Returning Precedential Status To All Opinions, David R. Cleveland

Law Faculty Publications

No abstract provided.

Revisiting The Regulation Debate: The Effect Of Food Marketing On Childhood Obesity, Nicole E. Negowetti

Law Faculty Publications

No abstract provided.