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2010

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Full-Text Articles in Law

The Pragmatic Incrementalism Of Common Law Intellectual Property, Shyamkrishna Balganesh Nov 2010

The Pragmatic Incrementalism Of Common Law Intellectual Property, Shyamkrishna Balganesh

Faculty Scholarship at Penn Law

‘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 ...


Slides: Assessing Opportunities And Barriers To Reducing The Environmental Footprint Of Oil And Gas Development In Utah, Douglas Jackson-Smith, Lorien Belton, Brian Gentry, Gene Theodori Oct 2010

Slides: Assessing Opportunities And Barriers To Reducing The Environmental Footprint Of Oil And Gas Development In Utah, Douglas Jackson-Smith, Lorien Belton, Brian Gentry, Gene Theodori

Opportunities and Obstacles to Reducing the Environmental Footprint of Natural Gas Development in Uintah Basin (October 14)

Presenter: Dr. Douglas Jackson-Smith, Utah State University--Logan Campus

37 slides


What Do We Mean By An Independent Judiciary, Michael P. Seng Oct 2010

What Do We Mean By An Independent Judiciary, Michael P. Seng

Michael P. Seng

Judicial independence has roots in separation of powers and in ethical standards that require judges to be competent and impartial. Judicial independence depends upon society having faith in the integrity of the courts. Accountability is thus the handmaid of an independent judiciary. This article defines both the structure and the ethical standards that insure an independent judiciary.


Racial Disproportionality In Child Welfare: False Logic And Dangerous Misunderstandings, Jesse Russell Oct 2010

Racial Disproportionality In Child Welfare: False Logic And Dangerous Misunderstandings, Jesse Russell

Jesse Russell

Disproportionality and disparities in child welfare appear to be widely recognized, if not fully understood, phenomena. There is often disagreement on how to interpret or find meaning in the empirical evidence that supports the existence of disproportionality and disparities—some the result of fertile and valuable discussion, some stemming from misunderstanding. Several potential paths of misinterpretation are examined here: the ecological fallacy concept, the fallacy of hidden assumptions, the lessons from different measures of disproportionality, the difficulty in understanding how probabilities relate to each other, and the effect that multicolinearity can have on statistical findings. Ultimately, better understanding of empirical ...


A Sword And A Shield: The Uses Of Law In The Bush Administration, Mary L. Dudziak Oct 2010

A Sword And A Shield: The Uses Of Law In The Bush Administration, Mary L. Dudziak

University of Southern California Legal Studies Working Paper Series

The Bush administration has been criticized for departures from the rule of law, but within the administration law was not ignored. Instead it was seen variously as a tool and as a potential threat to the operation of the executive branch. Two narratives compete for attention. In an era when the legality of torture was openly debated, the deployment of law in wartime seemed the most immediate issue. At the same time, however, a decades-long conservative movement to change American law was both significantly furthered and complicated, as Supreme Court appointments moved the Court to the right, but the lack ...


Does The Readability Of Your Brief Affect Your Chance Of Winning An Appeal?--An Analysis Of Readability In Appellate Briefs And Its Correlation With Success On Appeal, Lance N. Long, William F. Christensen Oct 2010

Does The Readability Of Your Brief Affect Your Chance Of Winning An Appeal?--An Analysis Of Readability In Appellate Briefs And Its Correlation With Success On Appeal, Lance N. Long, William F. Christensen

Lance N. Long

The study described in this article suggests that the length of sentences and words, which is “readability” for our purposes, probably does not make much difference in appellate brief writing. First, we found that most briefs are written at about the same level of readability; there simply is not much difference in how lawyers write appellate briefs when it comes to the length of sentences and words. Furthermore, the readability of most appellate briefs is well within the reading ability of the highly educated audience of appellate judges and justices. Second, the relatively small differences in readability are not related ...


The Exclusionary Rule In Immigration Proceedings: Where It Was, Where It Is, Where It May Be Going, Irene Scharf Oct 2010

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.


Iqbal, Twombly, And The Lessons Of The Celotex Trilogy, Hillel Y. Levin Oct 2010

Iqbal, Twombly, And The Lessons Of The Celotex Trilogy, Hillel Y. Levin

Scholarly Works

This Essay compares the Twombly/Iqbal line of cases to the Celotex trilogy and suggests that developments since the latter offer lessons for the former. Some of the comparisons are obvious: decreased access and increased judicial discretion. However, one important similarity has not been well understood: that the driving force in both contexts has been the lower courts rather than the Supreme Court. Further, while we can expect additional access barriers to be erected in the future, our focus should be on lower courts, rather than other institutional players, as the likely source of those barriers.


International Law And Domestic Judicial Procedure: Implementing The Hague Convention On Choice Of Court Agreements In The American Federal System, Carolyn Dubay Sep 2010

International Law And Domestic Judicial Procedure: Implementing The Hague Convention On Choice Of Court Agreements In The American Federal System, Carolyn Dubay

Carolyn Dubay

In 2009, the United States became a signatory to the Convention on Choice of Court Agreements (COCCA), drafted under the auspices of the Hague Conference on Private International Law. The stated objective of the Convention was to "promote international trade and investment through enhanced judicial co-operation." Despite these broad goals, COCCA is narrowly drawn to relate only to international commercial disputes subject to a negotiated choice of court agreement. With respect to forum selection clauses in international business-to-business contracts, COCCA creates uniform procedural rules for the enforcement of such clauses in both the courts designated in such clauses (“chosen courts ...


Executing Foster V. Neilson: Enforcing Treaties Against The States, David Sloss Sep 2010

Executing Foster V. Neilson: Enforcing Treaties Against The States, David Sloss

David Sloss

In Medellin v. Texas, the Supreme Court held that Article 94 of the United Nations Charter is non-self-executing. In so holding, the Court applied the “intent-based” doctrine of self-execution. Conventional wisdom traces that doctrine to an 1829 opinion by Chief Justice Marshall in Foster v. Neilson. The conventional wisdom is wrong. Marshall applied the “two-step” approach to self-execution, not the modern intent-based doctrine. The two-step approach distinguishes clearly between questions of international and domestic law. International law governs the content and scope of the United States’ treaty obligations. Domestic law determines which government officers are responsible for domestic treaty implementation ...


An Empirical Study Of Settlement Conference Nuts And Bolts: Settlement Judges Facilitating Communication, Compromise And Fear, Peter R. Robinson Sep 2010

An Empirical Study Of Settlement Conference Nuts And Bolts: Settlement Judges Facilitating Communication, Compromise And Fear, Peter R. Robinson

Peter R. Robinson

No abstract provided.


Iqbal's Retro Revolution, Benjamin P. Cooper Sep 2010

Iqbal's Retro Revolution, Benjamin P. Cooper

Benjamin P Cooper

The U.S. Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ascroft v. Iqbal have revolutionized the law on pleading, by shifting from a liberal notice pleading standard to a new heightened “plausibility” regime. The abundant scholarship about these cases consistently posits that Iqbal’s plausibility standard is completely novel with no historical precedent in the modern era. This Article argues that, contrary to this conventional wisdom, although Iqbal is revolutionary (in the sense that it marks a sharp break with what immediately preceded it), the post-Iqbal era is not entirely new. Rather, the current pleading regime ...


Pleading Their Case: How Ashcroft V. Iqbal Extinguishes Prisoners’ Rights, Maureen Brocco Sep 2010

Pleading Their Case: How Ashcroft V. Iqbal Extinguishes Prisoners’ Rights, Maureen Brocco

Maureen Brocco

Ashcroft v. Iqbal, decided on May 18, 2009, increased the evidentiary burden required to survive a Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) motion to dismiss to a strict plausibility standard. While this decision affects almost all civil claims in the federal court system, its impact is particularly troublesome in the realm of prisoners’ rights litigation. For a prisoner, such onerous pre-litigation fact-finding requirements can turn the administration of justice into an unattainable goal. Since prisoners’ claims are often against their captors, government officials, this heightened pleading burden may leave victims of egregious unconstitutional actions ...


Ending Erie's Third Phase: Why The Supreme Court Should Stop Freelancing And Go Back To Drawing Lines Between Substance And Procedure, Jennifer Hendricks Sep 2010

Ending Erie's Third Phase: Why The Supreme Court Should Stop Freelancing And Go Back To Drawing Lines Between Substance And Procedure, Jennifer Hendricks

Jennifer S. Hendricks

John Hart Ely famously observed, “We were all brought up on sophisticated talk about the fluidity of the line between substance and procedure,” but for most of Erie’s history, the Supreme Court has answered the question “Does this state law govern in federal court?” with a “yes” or a “no.” Beginning, however, with Gasperini v. Center for Humanities, and continuing with Semtek v. Lockheed and Shady Grove v. Allstate, a shifting coalition of justices has pursued a third path. Instead of declaring state law applicable or inapplicable, they have claimed for themselves the prerogative to fashion law that purportedly ...


Statutory Interpretation & The Presidency: The Hierarchy Of “Executive History”, Faye Jones, Alvan Balent Sep 2010

Statutory Interpretation & The Presidency: The Hierarchy Of “Executive History”, Faye Jones, Alvan Balent

Faye E Jones

It is common knowledge that the New Deal fundamentally remade America because after the New Deal, Americans began looking to the federal government to solve their problems. This increased public interest in the national government prompted major changes in each branch of the government. The Executive branch, for instance, became the most prominent branch of the federal government, and the President consequently began exerting himself in all aspects of the government including lawmaking. Congress began to pass more legislation, and thus the federal judiciary’s docket became filled with statutory interpretation cases. However, when interpreting statutes, the judiciary has largely ...


Deferring To The Assertion Of National Security: The Creation Of A National Security Exemption Under The National Environmental Policy Act Of 1969, Emily Donovan Sep 2010

Deferring To The Assertion Of National Security: The Creation Of A National Security Exemption Under The National Environmental Policy Act Of 1969, Emily Donovan

Emily Donovan

The National Environmental Policy Act of 1969 (NEPA) aims to ensure that agencies consider the potential environmental impacts of their actions before engaging in them. In contrast to other major environmental legislation, Congress did not include a national security exemption under NEPA, meaning that, in theory, agencies in the business of national security must comply with NEPA just as any other agency, by considering mitigation measures and alternatives, and preparing environmental impact statements when necessary. The courts, however, in deciding NEPA noncompliance cases, have created a national security exemption that the legislature never intended. They have done so by failing ...


The Pinkerton Problem, Bruce A. Antkowiak Sep 2010

The Pinkerton Problem, Bruce A. Antkowiak

Bruce A Antkowiak

Pinkerton is a longstanding principle of criminal law that holds a conspirator liable for the substantive crimes of his confederates as long as they were committed during the course of and in furtherance of the conspiracy, and as long as they were objectively and reasonably foreseeable to a defendant. This leads to liability being imposed on individuals who did not personally have the mens rea required to commit the crime for which they are sentenced. The article argues that the use of such conspirator liability rules in many jurisdictions (federal and state) violates both due process and separation of powers ...


Live Hearings And Paper Trials, Mark Spottswood Sep 2010

Live Hearings And Paper Trials, Mark Spottswood

Mark Spottswood

This article explores a constantly recurring procedural question: When is fact-finding improved by a live hearing or trial, 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 live testimony than if the judges were ...


Constitutional Pathology, The War On Terror, And United States V. Klein, Howard M. Wasserman Aug 2010

Constitutional Pathology, The War On Terror, And United States V. Klein, Howard M. Wasserman

Howard M Wasserman

In The Irrepressible Myth of Klein (UNIVERSITY OF CINCINNATI LAW REVIEW, 2010) I discuss the meaning, scope, and continued relevance of the Supreme Court's historic decision in United States v. Klein (1871), arguing that Klein is not the judicially powerful a precedent many believe it to be. In this follow-up essay, I apply the insights of my analysis and exposure of Klein’s myths to two major pieces of legislation enacted as part of the ongoing War on Terror: The FISA Amendments Act of 2008 (granting retroactive immunity to telecommunications companies involved in warrantless domestic surveillance) and the Military ...


The Florida Beach Case And The Road To Judicial Takings, Michael Blumm Aug 2010

The Florida Beach Case And The Road To Judicial Takings, Michael Blumm

Michael Blumm

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, the U.S. Supreme Court unanimously upheld a state beach restoration project against landowner claims of an unconstitutional taking of the property. This result was not nearly as surprising as the fact that the Court granted certiorari on a case that turned on an obscure aspect of Florida property law: whether landowners adjacent to a beach had the right to maintain contact with the water and the right to future accretions of sand.

The Court’s curious interest in the case was piqued by the landowners’ recasting the case ...


Rationing Justice?: The Effect Of Caseload Pressures On The U.S. Courts Of Appeals In Immigration Cases, Anna O. Law Aug 2010

Rationing Justice?: The Effect Of Caseload Pressures On The U.S. Courts Of Appeals In Immigration Cases, Anna O. Law

Anna O. Law

Beginning in late 2003, the U.S. Courts of Appeals for the Second and Ninth Circuits experienced a deluge of immigration cases caused by changes in another part of the immigration bureaucracy. How did these two circuits, especially the Ninth circuit and its personnel, which handle more than 50% of all immigration appeals nationwide, respond to the "immigration surge" as it came to be called? Using interview data from 25% of the active judges on the court and some central staff, the article examines the series of internal experiments in case management that the Ninth Circuit was forced to undertake ...


War Courts: Terror's Distorting Effects On Federal Courts, Collin P. Wedel Aug 2010

War Courts: Terror's Distorting Effects On Federal Courts, Collin P. Wedel

Collin P Wedel

In recent years, federal courts have tried an increasing number of suspected terrorists. In fact, since 2001, federal courts have convicted over 403 people for terrorism-related crimes. Although much has been written about the normative question of where terrorists should be tried, scant research exists about the impact these recent trials have had upon the Article III court system. The debate, rather, has focused almost exclusively upon the proper venue for these trials and the hypothetical problems and advantages that might inhere in each venue. The war in Afghanistan, presenting a host of thorny legal issues, is now the longest ...


May It Please The Senate: An Empirical Analysis Of The Senate Judiciary Committee Hearings Of Supreme Court Nominees, 1939-2009, Lori A. Ringhand, Paul M. Collins Aug 2010

May It Please The Senate: An Empirical Analysis Of The Senate Judiciary Committee Hearings Of Supreme Court Nominees, 1939-2009, Lori A. Ringhand, Paul M. Collins

Lori A. Ringhand

This paper examines the questions asked and answers given by every Supreme Court nominee who has appeared to testify before the Senate Judiciary Committee since 1939. In doing so, it uses a new dataset developed by the authors. This dataset, which provides a much-needed empirical foundation for scholarship in emerging areas of constitutional law and political science, captures all of the statements made at the hearings and codes these comments by issue area, subissue area, party of the appointing president, and party of the questioning senator. The dataset allows us to quantify for the fist time such things as which ...


The Path Of Posner's Pragmatism, Edward Cantu Aug 2010

The Path Of Posner's Pragmatism, Edward Cantu

Edward Cantu

It is no secret that formalist methodologies like originalism are not nearly as scientific as they pretend to be. Banking on this fact, pragmatism offers a prescriptive alternative: instead of expending intellectual energy attempting “fidelity” to antecedent “authority” (precedent, Framers’ intent, etc.) judges should embrace their inevitable roles as de facto policy makers, and focus on producing the best social results they can through the cases they decide. The article discusses the current state of legal pragmatism in the form espoused by its chief proponent Judge Richard Posner, and asks whether it has proven itself capable of contributing anything useful ...


Perpetuating Ageism Via Adoption Standards And Practices, Sara C. Mills Aug 2010

Perpetuating Ageism Via Adoption Standards And Practices, Sara C. Mills

Sara C Mills

More than a quarter of Americans consider adoption at some point in their lives. During the adoption process, courts strive to promote and foster the children’s best interests, but this often involves discriminatory decisions that deprive older adoptive parents of the same opportunities as younger adoptive parents. Discrimination in adoption proceedings is nothing new, and legislators, courts, and scholars have explored how it impacts minorities, same-sex couples, single parents, and divorcees. However, age discrimination in adoption also exists, and courts condone it by approving placements that are dictated by private agencies’ discriminatory ideologies. This article thus provides the first ...


Lessons In Price Stability From The U.S. Real Estate Market Collapse, Andrea J. Boyack Aug 2010

Lessons In Price Stability From The U.S. Real Estate Market Collapse, Andrea J. Boyack

Andrea J Boyack

The U.S. residential housing market collapse illustrates the consequences of ignoring risk while funding mortgage borrowing. Collateral over-valuation was a foundational piece of the crisis. Over the past few decades, secondary markets, securitization, policy and psychology increased the flow of funds into real estate. At the same time, financial market segmentation divorced risk from reward. Increased mortgage capital availability, unmitigated by proper risk allocation, led to real estate price inflation. Social trends and government policies exacerbated both the mortgage capital over-supply and the risk-valuation disconnect.

The Dodd-Frank Act inadequately addresses the underlying asset valuation problem. Federal regulation may support ...


Resurrecting The Argument For Judicial Empathy: Can A Dead Duck Be Successfully Repackaged For Sale To A Skeptical Public?, Tobin Sparling Aug 2010

Resurrecting The Argument For Judicial Empathy: Can A Dead Duck Be Successfully Repackaged For Sale To A Skeptical Public?, Tobin Sparling

Tobin Sparling

President Obama's campaign to promote judicial empathy has proved a failure, rejected by his own judicial nominees and the public at large. Based on an examination of current popular conceptions of justice and a survey of scientific understanding of what empathy is and how it works, this article examines whether judicial empathy is a cause worth saving and, if so, whether it can, indeed, be saved. It argues that the advocacy of judicial empathy can and should be revived and suggests a strategy for politicians, judges, and others who desire to promote it. This strategy operates from two basic ...


Linguistic Colonialism: Law, Independence, And Language Rights In Puerto Rico, Andrea Freeman Aug 2010

Linguistic Colonialism: Law, Independence, And Language Rights In Puerto Rico, Andrea Freeman

Andrea Freeman

Events surrounding Puerto Rico’s 2004 and 2008 gubernatorial elections highlight two of the problems that exemplify the current state of linguistic colonialism that characterizes the relationship between the United States and Puerto Rico. One arose from the requirement that federal jurors be proficient in English, a mandate that conflicts with the Sixth Amendment’s guarantee of a jury representing a fair cross-section of the community. The other stemmed from a lack of anticipation of the existence of an English-speaking minority in a territory ruled by the United States, compelling the district court to struggle for authority to order bilingual ...


Ending The Korematsu Era: A Modern Approach, Craig Green Aug 2010

Ending The Korematsu Era: A Modern Approach, Craig Green

Roger Craig Green

This Article seeks to transform how readers think of Korematsu v. United States, thereby offering a more accurate view of the past and stronger barriers against presidential abuse. Korematsu is conventionally listed among the worst cases in American law, but its wrongness is understood far too narrowly. If Korematsu were just a case about racist internments, it would be a truly unique blot in Supreme Court history: powerfully mistaken but almost completely irrelevant to modern legal disputes.

Despite Korematsu’s extraordinary facts, the case stands in a thematic cluster of cases from World War II that I will call the ...


A Kind Of Judgment: Searching For Judicial Narratives After Death, Timothy W. Waters Aug 2010

A Kind Of Judgment: Searching For Judicial Narratives After Death, Timothy W. Waters

Timothy W Waters

This Article is a work of original research interrogating the relationship between international criminal law and post-conflict reconciliation. Much of international criminal law’s attraction rests on the authoritative narrative theory: the claim that law’s authoritative judgments create incontestable narratives, which form the foundation for reconciliation in divided societies. So what happens when there is no judgment? By turning scholarship’s attention towards a terminated trial, this Article develops an indirect but powerful challenge to one of the dominant views about what international criminal law is for, with interdisciplinary implications for international law, international relations, diplomacy and political science ...