Jurisprudence Commons^™

Look Back At The Rehnquist Era And An Overview Of The 2004 Supreme Court Term, Erwin Chemerinsky

Touro Law Review

No abstract provided.

License To Discriminate: How A Washington Florist Is Making The Case For Applying Intermediary Scrutiny To Sexual Orientation, Kendra Lacour

Seattle University Law Review

Over the past few decades, the debate over sexual orientation has risen to the forefront of civil rights issues. Though the focus has generally been on the right to marriage, peripheral issues associated with the right to marriage—and with sexual orientation generally—have become more common in recent years. As the number of states permitting same-sex marriage—along with states prohibiting discrimination on the basis of sexual orientation—increases, so too does the conflict between providers of public accommodations and those seeking their services. Never is this situation more problematic than when religious beliefs are cited as the basis for denying services to …

The Confusing Standards For Discretionary Review In Washington And A Proposed Framework For Clarity, Judge Stephen Dwyer

Seattle University Law Review

It has now been more than thirty-five years since the Washington Rules of Appellate Procedure (RAP) became effective in 1976 and replaced all prior rules governing appellate procedure. One significant change that those rules made was to clearly describe and delineate a procedural mechanism for seeking interlocutory review of trial court decisions. The ultimate effect on practitioners is both obvious and unavoidable. Many lawyers, rather than stake out a clear position regarding the applicability of the various considerations governing discretionary review, simply argue that any and every consideration that is even arguably applicable is satisfied by the trial court’s determination. …

Vladimir Putin And The Rule Of Law In Russia, Jeffrey Kahn

Georgia Journal of International & Comparative Law

No abstract provided.

Weeds, Seeds, & Deeds Redux: Natural And Legal Evolution In The U.S. Seed Wars, Rebecca Stewart

Rebecca K Stewart

Ever since the U.S. Patent and Trademark Office began issuing utility patents for plants, the United States has sat squarely on the frontlines of what have come to be known as the “seed wars.” In the last two decades, the majority of battles in the U.S. seed wars have been waged in the form of patent infringement lawsuits. Typically these suits are filed by biotechnology corporations such as Monsanto against farmers accused of saving and planting patented seed that self-replicates to produce progeny embodying—and thus infringing—the biotech corporations’ patented inventions.

Yet in recent years, the seed wars have begun to …

City Of Arlington V. Fcc: Jurisdictional Or Nonjurisdictional, Where To Draw The Line?, Whitney Ruijuan Hao

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Contribution Of The International Tribunal For The Law Of The Sea To The Development Of The Current International Law Of The Sea, With Special Reference To The Polar Regions, Gabriela A. Oanta Associate Professor Of Public International Law

Gabriela A. Oanta Associate professor of public international law

This article analyzes the contribution of the International Tribunal for the Law of the Sea (ITLOS) to the development of the international law of the sea. On the hand, the mechanism of dispute settlement provided by UNCLOS and other international agreements adopted in the last thirty years approximately over the oceans and seas will be studied. And on the other hand, this article presents an analysis of the past, present and future activity of the International Tribunal for the Law of the Sea with regard to the two polar regions, the Arctic and the Antarctica. Antarctica lato sensu has received …

Historical Antecedents Of Challenges Facing The Georgia Appellate Courts, Michael B. Terry

Georgia State University Law Review

The Georgia appellate courts face challenges common to many courts in these days of reduced governmental resources. At the same time, the Georgia appellate courts face unusual challenges that can be traced to their historical antecedents and one unique constitutional provision: the “Two-Term Rule.” Just as “[t]he law embodies the story of a nation’s development through many centuries,” the current rules and practices of both the Supreme Court of Georgia and the Court of Appeals of Georgia embody the story of the development of those courts since their founding.

Several aspects of the history of the courts directly impact the …

Division Of Labor: The Modernization Of The Supreme Court Of Georgia And Concomitant Workload Reduction Measures In The Court Of Appeals, Kyle G.A. Wallace, Andrew J. Tuck, Max Marks

Georgia State University Law Review

This article addresses two distinct yet interrelated topics: the arcane and unnecessarily complex jurisdictional division between the Georgia Supreme Court and Georgia Court of Appeals, and the excessive caseload at the Georgia Court of Appeals.

In Part I.A., this article discusses Georgia’s appellate system—its history, the jurisdictional division that arose, the confusion the current jurisdictional framework creates, and the limitations and burdens it places on Georgia’s highest court. In Part I.B., the article discusses the current caseload at the Court of Appeals and the burden any jurisdictional reforms would have on the Court of Appeals. In Part II, the article …

The Federal Rules At 75: Dispute Resolution, Private Enforcement Or Decisions According To Law?, James R. Maxeiner

Georgia State University Law Review

This essay is a critical response to the 2013 commemorations of the75th anniversary of the Federal Rules of Civil Procedure.The Federal Rules of Civil Procedure were introduced in 1938 to provide procedure to decide cases on their merits. The Rules were designed to replace decisions under the “sporting theory of justice”with decisions according to law.

By 1976, at midlife, it was clear that they were not achieving their goal. America’s proceduralists split into two sides about what to do. One side promotes rules that control and conclude litigation: e.g.,plausibility pleading, case management, limited discovery, cost indemnity for discovery, and summary …

Gully And The Failure To Stake A 28 U.S.C. § 1331 'Claim', Lumen N. Mulligan

Faculty Works

In this piece, I argue that a return to Gully v. First National Bank in Meridian as an approach to 28 U.S.C. § 1331 jurisdiction is ill-conceived. In a recent thoughtful article, Professor Simona Grossi draws heavily upon the traditions of the legal process school’s approach to federal courts jurisprudence to support just such a resurrection of Gully as the lodestar for § 1331 doctrine. While embracing a return to the legal process school, I argue first that the Gully view — read as a call for judges simply to select sufficiently important matters, in relation to plaintiff’s case in …

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

Through Our Glass Darkly: Does Comparative Law Counsel The Use Of Foreign Law In U.S. Constitutional Adjudication?, Kenneth Anderson

Articles in Law Reviews & Other Academic Journals

This (35 pp.) essay appears as a contribution to a law review symposium on the work of Harvard Law School professor Mary Ann Glendon in comparative law. The essay begins by asking what comparative law as a scholarly discipline might suggest about the use of foreign (or unratified or nationally "unaccepted" international law) by US courts in US constitutional adjudication. The trend seemed to be gathering steam in US courts between the early-1990s and mid-2000s, but by the late-2000s, it appeared to be stalled as a practice, notwithstanding the intense scholarly interest throughout this period.

Practical politics within the US …

Patent Dialogue, Jonas Anderson

Articles in Law Reviews & Other Academic Journals

This Article examines the unique dialogic relationship that exists between the Supreme Court and Congress concerning patent law. In most areas of the law, Congress and the Supreme Court engage directly with each other to craft legal rules. When it comes to patent law, however, Congress and the Court often interact via an intermediary institution: the U.S. Court of Appeals for the Federal Circuit. In patent law, dialogue often begins when Congress or the Supreme Court acts as a dialogic catalyst, signaling reform priorities to which the Federal Circuit often responds.

Appreciating the unique nature of patent dialogue has important …

Congress As A Catalyst Of Patent Reform At The Federal Circuit, Jonas Anderson

Articles in Law Reviews & Other Academic Journals

The U.S. Court of Appeals for the Federal Circuit is the dominant institution in patent law. The court’s control over patent law and policy has led to a host of academic proposals to shift power away from the court and towards other institutions, including the U.S. Supreme Court, the U.S. Patent and Trademark Office, and federal district courts. Surprisingly, however, academics have largely dismissed Congress as a potential institutional check on the Federal Circuit. Congress, it is felt, is too slow, too divided, and too beholden to special interests to effectively monitor changes in innovation and respond with appropriate reforms. …

The Jurisprudence Of Union, Gil Seinfeld

Articles

The primary goal of this Article is to demonstrate that the interest in national unity does important, independent work in the law of vertical federalism. We have long been accustomed to treating union as a constitutionally operative value in cases involving the duties states owe one another (i.e. horizontal federalism cases), but in cases involving the relationship between the federal government and the states, the interest in union is routinely ignored. This Article shows that, across a wide range of cases relating to the allocation of power between the federal government and the states, the states are constrained by a …