Law Commons^™

The Pragmatic Incrementalism Of Common Law Intellectual Property, Shyamkrishna Balganesh

All Faculty Scholarship

‘Common law intellectual property’ refers to a set of judge-made legal regimes that create exclusionary entitlements in different kinds of intangibles. Principally the creation of courts, many of these regimes are older than their statutory counterparts and continue to co-exist with them. Surprisingly though, intellectual property scholarship has paid scant attention to the nuanced law-making mechanisms and techniques that these regimes employ to navigate through several of intellectual property law’s substantive and structural problems. Common law intellectual property regimes employ a process of rule development that this Article calls ‘pragmatic incrementalism’. It involves the use of pragmatic and minimalist techniques …

The Exclusionary Rule In Immigration Proceedings: Where It Was, Where It Is, Where It May Be Going, Irene Scharf

San Diego International Law Journal

The piece examines the treatment of the Fourth Amendment in immigration courts by surveying its jurisprudential history in those courts and then analyzes the judicial responses thereto. Disparities among circuit court rulings add to the confusion and unpredictability typical of Immigration Court decisions. Finally, the article discusses the difficulties raised by the divergent circuit court opinions and offers suggestions as to how we may resolve these difficulties in accordance with the Constitution's requirement of fair play.

Inherent Jurisdiction And Its Application By Nova Scotiacourts: Metaphysical, Historical Or Pragmatic?, William H. Charles

Dalhousie Law Journal

The author explores the concept of inherent jurisdiction in the context of its use and application by the courts of Nova Scotia. A general in-depth discussion ofthe nature and source(s) of the concept is followed by an examination of three recent Court of Appeal decisions in an effort to determine that court's understanding of inherent jurisdiction. The Court of Appeal's understanding and sense of the concept is then contrasted with its use and application by the trial courts of Nova Scotia over a period of 150 years. The approach of the two levels of court to inherent jurisdiction is compared …

Forward: Symposium On Broke And Broken: Can We Fix Our State Indigent Defense System?, Rodney J. Uphoff

Faculty Publications

The Symposium presenters and commentators, most of whom had worked at some point in their career as a public defender, brought a wealth of experience to the discussion. While the presentations and comments made that day, together with the articles that follow in this Symposium issue, do not provide any quick fix or easy solution, they do offer some important lessons for lawmakers to consider as states struggle to improve the plight of indigent defenders and their clients.

Did The Madisonian Compromise Survive Detention At Guantanamo?, Lumen N. Mulligan

Faculty Works

In this essay, I take up the Court’s less heralded second holding in Boumediene v. Bush - that a federal habeas court must have the institutional capacity to find facts, which in Boumediene itself meant that a federal district court must be available to the petitioners. Although this has gone largely unnoticed, I contend that this holding is inconsistent with the Madisonian Compromise - the standard view that the Constitution does not require jurisdiction in any federal court, except the Supreme Court. In fact, it appears that the Court adopted Justice Story’s position that the Constitution requires vesting of jurisdiction …

The Restrictive Ethos In Civil Procedure, A. Benjamin Spencer

Faculty Publications

Those of us who study civil procedure are familiar with the notion that federal civil procedure under the 1938 Rules was generally characterized by a "liberal ethos," meaning that it was originally designed to promote open access to the courts and to facilitate a resolution of disputes on the merits. Most of us are also aware of the fact that the reality of procedure is not always access-promoting or fixated on merits- based resolutions as a priority. Indeed, I would say that a "restrictive ethos" prevails in procedure today, with many rules being developed, interpreted, and applied in a manner …

Sex Representation On The Bench: Legitimacy And International Criminal Courts, Nienke Grossman

All Faculty Scholarship

This essay examines the relationship between legitimacy and the presence of both male and female judges on international criminal court benches. It argues that sex representation – an approximate reflection of the ratio of the sexes in the general population – on the bench is an important contributor to legitimacy of international criminal courts. First, it proposes that sex representation affects normative legitimacy because men and women bring different perspectives to judging. Consequently, without both sexes, adjudication is inherently biased. Second, even if one rejects the proposition that men and women "think differently", sex representation affects sociological legitimacy because sex …

It's A Bird, It's A Plane, It's Jus Cogens!, Anthony D'Amato

Faculty Working Papers

What we require—like the third bowl of soup in the story of the three bears—is a theory of jus cogens that is Just Right. I do not know if such a theory is possible. I don't even know if one is conceivable. But if someone conceives it, that person deserves the very next International Oscar. To qualify for the award, the theory must answer the following questions:

Whales: Their Emerging Right To Life, Anthony D'Amato, Sudhir K. Chopra

Faculty Working Papers

We have contended in this article that the evolution of the opinio juris of nations has encompassed five, and perhaps six, inexorable qualitative stages: free resource, regulation, conservation, protection, preservation and entitlement. We have argued that assigning whales an entitlement to life is the consequence of an emerging humanist right in international law — an example of the merging of the "is" and the "ought" of the law in the process of legitimization

Defending A Person Charged With Genocide, Anthony D'Amato

Faculty Working Papers

I was asked to represent Dr. Milan Kovacevic who had been indicted by the International Criminal Tribunal for Yugoslavia ("ICTY") for complicity in genocide. Had he lived through it, his trial would have been the first by the ICTY for the crime of genocide. I would like to describe some of the tribulations of defending clients accused of grave humanitarian offenses in the ICTY.

International Law And Rawls' Theory Of Justice, Anthony D'Amato

Faculty Working Papers

The complexity of present-day international law stands in an uneasy relation to the scheme of justice propounded by Rawls. The problems facing international lawyers may pose a conceptual threat to some of the fundamental bases upon which Rawls builds his entire theoretical edifice.

Stories Told And Untold: Confidentiality Laws And The Master Narrative Of Child Welfare, Matthew I. Fraidin

Journal Articles

In most states, child welfare hearings and records are sealed or confidential. This means that by law, court hearings and records may not be observed. The same laws and court rules also preclude those who are authorized to enter and watch from discussing anything learned or observed in a closed courtroom or from a sealed court record with anyone not involved in the case. It is the restriction on speech—on telling stories about child welfare—with which this Article is concerned. I will argue in this Article that the insights of narrative theory and agenda-setting studies help us understand the damaging …

Restructuring Proposal For The Criminal Division Of The Circuit Court Of Cook County, Daniel T. Coyne

All Faculty Scholarship

No abstract provided.

The Supreme Court And The Sophisticated Use Of Digs, Rafael Gely, Michael E. Solimine

Faculty Publications

In this article, we extend this literature in several ways. In part II, we provide a brief overview of the certiorari and DIG process, and explore the possible motivations for the Court to DIG a case. In Part III we describe our data, and in Part IV we discuss our results. Part V concludes the paper.

The Greatest Legal Movie Of All Time: Proclaiming The Real Winner, Grant H. Morris

Grant H Morris

In August, 2008, the ABA Journal featured an article entitled: “The 25 Greatest Legal Movies.” A panel of experts, described in the article as “12 prominent lawyers who teach film or are connected to the business” selected “the best movies ever made about lawyers and the law.” This distinguished panel ranked its twenty-five top legal movies, choosing To Kill a Mockingbird as its number one legal movie. The panel also selected twenty-five films as “honorable mentions,” which were listed in alphabetical order. In my opinion, however, the real greatest legal movie of all time was not selected as the winner. …

Clear As Mud: How The Uncertain Precedential Status Of Unpublished Opinions Muddles Qualified Immunity Determinations, David R. Cleveland

David R. Cleveland

While unpublished opinions are now freely citeable under Federal Rule of Appellate Procedure 32.1, their precedential value remains uncertain. This ambiguity muddles the already unclear law surrounding qualified immunity and denies courts valuable precedents for making fair and consistent judgments on these critical civil rights issues. When faced with a claim that they have violated a person’s civil rights, government officials typically claim qualified immunity. The test is whether they have violated “clearly established law.” Unfortunately, the federal circuits differ on whether unpublished opinions may be used in determining clearly established law. This article, Clear as Mud: How the Uncertain …

All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies And The Rule Of Law, Keith J. Bybee

College of Law - Faculty Scholarship

This paper contains the introduction to the new book, All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies and the Rule of Law (Stanford University Press, 2010).

The book begins with the observation that Americans are divided in their beliefs about whether courts operate on the basis of unbiased legal principle or of political interest. This division in public opinion in turn breeds suspicion that judges do not actually mean what they say, that judicial professions of impartiality are just fig leaves used to hide the pursuit of partisan purposes.

Comparing law to the practice of common courtesy, the …

Efficient, Fair, And Incomprehensible: How The State 'Sells' Its Judiciary, Keith J. Bybee, Heather Pincock

College of Law - Faculty Scholarship

Sociolegal scholars often approach dispute resolution from the perspective of the disputants, emphasizing how the resources on each side shape the course of conflict. We suggest a different, “supply-side” perspective. Focusing on the state’s efforts to establish centralized courts in place of local justice systems, we consider the strategies that a supplier of dispute resolving services uses to attract disputes for resolution. We argue that state actors often attempt to “sell” centralized courts to potential litigants by insisting that the state’s services are more efficient and fair than local courts operating outside direct state control. Moreover, we argue that state …

Introductory Note To The Supreme Court Of The United States: Noriega V. Pastrana, Kenneth Anderson

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Defending The Majoritarian Court, Amanda Frost

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Hearings, Mark Spottswood

Faculty Working Papers

This article explores a constantly recurring procedural question: When is fact-finding improved by a live hearing, and when would it be better to rely on a written record? Unfortunately, when judges, lawyers, and rulemakers consider this issue, they are led astray by the widely shared—but false—assumption that a judge can best determine issues of credibility by viewing the demeanor of witnesses while they are testifying. In fact, a large body of scientific evidence indicates that judges are more likely to be deceived by lying or mistaken witnesses when observing their testimony in person than if the judges were to review …

Federal Circuit Patent Precedent: An Empirical Study Of Institutional Authority And Ip Ideology, David Pekarek-Krohn, Emerson H. Tiller

Faculty Working Papers

In this paper, we aim to better understand the institutional authority of the Federal Circuit as a source of law as well as the influence of pro-patent and anti-patent ideological forces at play between the Supreme Court, Federal Circuit, and the district courts. Our specific focus is on the district courts and how they cite Federal Circuit precedent relative to Supreme Court precedent to support their decisions, whether they be pro-patent or anti-patent. Using a variety of citation approaches and statistical tests, we find that federal district courts treat the Federal Circuit as more authoritative (compared to the Supreme Court) …

The Macroeconomic Court: Rhetoric And Implications Of New Deal Decision-Making, Nancy Staudt, Yilei He

Faculty Working Papers

Supreme Court scholars have long discussed and debated the dramatic shift in constitutional decision-making that took place in the late 1930s—a shift that led the Justices to presume the constitutionality of any and all commercial statutes no matter how "preposterous" they might seem. The conventional wisdom holds that the Supreme Court altered its decision-making calculus to avoid the consequences of President Roosevelt's "court-packing plan," but various other explanations have also emerged in the literature over time. In this Article, Professor Staudt and Ms. He investigate an explanation that scholars and commentators have largely ignored: the role of the economy itself. …

Methodological Advances And Empirical Legal Scholarship: A Note On The Cox And Miles' Voting Rights Act Study, Nancy Staudt, Tyler Vanderweele

Faculty Working Papers

In this Response, we use Professors Cox and Miles' recent study of judicial decision-making to explore what is at stake when legal scholars present empirical findings without fully investigating the structural relationships of their data or without explicitly stating the assumptions being made to draw causal inferences. We then introduce a new methodology that is intuitive, easy to use, and, most importantly, allows scholars systematically to assess problems of bias and confounding. This methodology—known as causal directed acyclic graphs—will help empirical researchers to identify true cause and effect relationships when they exist and, at the same time, posit statistical models …

Economic Trends And Judicial Outcomes: A Macrotheory Of The Court, Thomas Brennan, Lee Epstein, Nancy Staudt

Faculty Working Papers

In this symposium essay, we investigate the effect of economic conditions on the voting behavior of U.S. Supreme Court Justices. We theorize that Justices are akin to voters in political elections; specifically, we posit that the Justices will view short-term and relatively minor economic downturns—recessions—as attributable to the failures of elected officials, but will consider long-term and extreme economic contractions—depressions—as the result of exogenous shocks largely beyond the control of the government. Accordingly, we predict two patterns of behavior in economic-related cases that come before the Court: (1) in typical times, when the economy cycles through both recessionary and prosperous …

"Controlling" Securities Fraud: Proposed Liability Standards For Controlling Persons Under The 1933 And 1934 Securities Acts, Nancy Staudt

Faculty Working Papers

This Student Note investigates the history and intent underlying the controlling person liability provisions of the 1933 and 1934 Securities Act. It notes that courts have adopted a ranges of standards for holding controlling persons liability, but whichever standard is chosen--that standard is applied to both Acts. This note argues that courts should impose unique liability standards for each statute in order to fully realize Congress' purpose in adopting the laws.

International Human Rights At The Close Of The Twentieth Century, Anthony D'Amato

Faculty Working Papers

Speculates as to why the human-rights revolution is increasingly likely to dominate our foreign-policy attentions in the decades to come. Ventures some predictions, of particular interest perhaps to international lawyers, about where the cause of international human rights is heading.

The Coerciveness Of International Law, Anthony D'Amato

Faculty Working Papers

This article shows that an important part of the deep structure of international law is its self-referential strategy of employing its own rules to protect its rules. International law tolerates a principled violation of its own rules when necessary to keep other rules from being broken. It extends a legal privilege to states to use coercion against any state that has selfishly attempted to transgress its international obligations. International law thus protects itself through the opportunistic deployment of its own rules.

The Concept Of Special Custom In International Law, Anthony D'Amato

Faculty Working Papers

General customary international law contains rules, norms, and principles that seem applicable to any state and not to a particular state or an exclusive grouping of states. For example, norms relating to the high seas, to airspace and outer space, to diplomatic immunities, to the rules of warfare, and so forth, apply equally to all states having occasion to be concerned with these areas. Similarly, the facts of a given case may suggest exclusively the application of general custom—such as cases concerning collision on the high seas between ships of different countries, cases involving general principles of international law, cases …

Reform In California's Immigration Enforcement And Immigration Court, Nelson E. Gil

CMC Senior Theses

According to the Department of Homeland Security, Office of Immigration Statistic, California accounts for approximately 2,600,000 illegal immigrants in 2009. This number represents about 25 percent of the entire estimated illegal immigrant population in the United States, which is roughly 10.8 million. Between 2003 and 2008, the U.S. government removed 1,446,338 noncitizens from the United States. This rise in deportation is a result o the changes that have been enacted by the federal government over the years that transformed the nature of immigration enforcement. This thesis explores the California Immigration Enforcement system from the programs established to apprehend illegal aliens …