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A Material World: Using Trademark Law To Override Copyright's First Sale Rule For Imported Copies, Mary LaFrance 2015 William S. Boyd School of Law, UNLV

A Material World: Using Trademark Law To Override Copyright's First Sale Rule For Imported Copies, Mary Lafrance

Michigan Telecommunications and Technology Law Review

When the Supreme Court held that the first sale rule of copyright law permits the unauthorized importation and domestic sale of lawfully made copies of copyrighted works, regardless of where those copies were made, copyright owners lost much of their ability to engage in territorial price discrimination. Publishers, film and record producers, and software and videogame makers could no longer use copyright law to prevent the importation and domestic resale of gray market copies, and therefore could no longer protect their domestic distributors against competition from cheaper imported copies. However, many of these copyright owners can take advantage of a ...


After Myriad: Reconsidering The Incentives For Innovation In The Biotech Industry, Daniel K. Yarbrough 2015 University of Michigan

After Myriad: Reconsidering The Incentives For Innovation In The Biotech Industry, Daniel K. Yarbrough

Michigan Telecommunications and Technology Law Review

35 U.S.C. § 101 allows a patent for “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” Recently, the Supreme Court issued several key decisions affecting the doctrine of patentable subject matter under § 101. Starting with Bilski v. Kappos (2011), and continuing with Mayo Collaborative Services, Inc. v. Prometheus Laboratories (2012), Association for Molecular Pathology v. Myriad Genetics (2013) and, most recently, Alice Corporation Pty. Ltd. v. CLS Bank International (2014), every year has brought another major change to the way in which the Court assesses patentability. In Myriad, the ...


District Courts Versus The Usitc: Considering Exclusionary Relief For F/Rand-Encumbered Standard-Essential Patents, Helen H. Ji 2015 University of Michigan

District Courts Versus The Usitc: Considering Exclusionary Relief For F/Rand-Encumbered Standard-Essential Patents, Helen H. Ji

Michigan Telecommunications and Technology Law Review

Technological standards allow manufacturers and consumers to rely upon these agreed-upon basic systems to facilitate sales and further invention. However, where these standards involved patented technology, the process of standard-setting raises many concerns at the intersection of antitrust and patent law. As patent holders advocate for their patents to become part of technological standards, how should courts police this activity to prevent patent holdup and other anti-competitive practices? This Note explores the differing approaches to remedies employed by the United States International Trade Commission and the United States District Courts where standard-essential patents are infringed. This Note further proposes that ...


Vetoing Wetland Permits Under Section 404(C) Of The Clean Water Act: A History Of Inter-Federal Agency Controversy And Reform, Michael Blumm, Elisabeth D. Mering 2015 Lewis & Clark Law School

Vetoing Wetland Permits Under Section 404(C) Of The Clean Water Act: A History Of Inter-Federal Agency Controversy And Reform, Michael Blumm, Elisabeth D. Mering

Michael Blumm

For most of its four-decade history, section 404(c) of the Clean Water Act could have been considered to be a sleeper provision of environmental law. The proviso authorizes the U.S. Environmental Protection Agency (EPA) overrule permits for discharges of dredged or fill material issued by the U.S. Army Corps of Engineers (Corps) where necessary to ensure protection of fish and wildlife habitat, municipal water supplies, and recreational areas against unacceptable adverse effects. This authority of one federal agency to veto the decisions of another federal agency is quite unusual, perhaps unprecedented in environmental law. The exceptional nature ...


A New And Old Theory For Adjudicating Standardized Contracts, Eric Mills Holmes, Dagmar Thürmann 2015 University of Georgia School of Law

A New And Old Theory For Adjudicating Standardized Contracts, Eric Mills Holmes, Dagmar Thürmann

Georgia Journal of International & Comparative Law

No abstract provided.


Forum: American Acceptance Of The Jurisdiction Of The International Court Of Justice: Experiences And Prospects, Louis B. Sohn, Dean Rusk, Gabriel M. Wilner 2015 University of Georgia School of Law

Forum: American Acceptance Of The Jurisdiction Of The International Court Of Justice: Experiences And Prospects, Louis B. Sohn, Dean Rusk, Gabriel M. Wilner

Georgia Journal of International & Comparative Law

No abstract provided.


The Chief Justice, The Appointment Of Inferior Officers, And The "Court Of Law" Requirement, James E. Pfander 2015 Northwestern University School of Law

The Chief Justice, The Appointment Of Inferior Officers, And The "Court Of Law" Requirement, James E. Pfander

Northwestern University Law Review

No abstract provided.


A Typology Of Judging Styles, Corey Rayburn Yung 2015 Northwestern University School of Law

A Typology Of Judging Styles, Corey Rayburn Yung

Northwestern University Law Review

No abstract provided.


Proportionality And The Social Benefits Of Discovery: Out Of Sight And Out Of Mind?, Stephen B. Burbank 2015 University of Pennsylvania Law School

Proportionality And The Social Benefits Of Discovery: Out Of Sight And Out Of Mind?, Stephen B. Burbank

Faculty Scholarship

In this short essay, based on remarks delivered at the 2015 meeting of the AALS Section of Litigation, I use a recent paper by Gelbach and Kobayashi to highlight the risk that, in assessing the proportionality of proposed discovery under the 2015 amendments to Rule 26 of the Federal Rules of Civil Procedure, federal judges will privilege costs over benefits, and private over public interests. The risk arises from the temptation to focus on (1) the interests of those who are present to the detriment of the interests of those who are absent (“the availability heuristic”), and (2) variables that ...


Procedure And Pragmatism, Stephen B. Burbank 2015 University of Pennsylvania Law School

Procedure And Pragmatism, Stephen B. Burbank

Faculty Scholarship

In this essay, prepared as part of a festschrift for the Italian scholar, Michele Taruffo, I portray him as a pragmatic realist of the sort described by Richard Posner in his book, Reflections on Judging. Viewing him as such, I salute Taruffo for challenging the established order in domestic and comparative law thinking about civil law systems, the role of lawyers, courts and precedent in those systems, and also for casting the light of the comparative enterprise on common law systems, particularly that in the United States. Speaking as one iconoclast of another, however, I also raise questions about Taruffo ...


Stiffing The Arbitrators: The Problem Of Nonpayment In Commercial Arbitration, Brian Farkas, Neal M. Eiseman 2015 Goetz Fitzpatrick LLP / Brooklyn Law School

Stiffing The Arbitrators: The Problem Of Nonpayment In Commercial Arbitration, Brian Farkas, Neal M. Eiseman

Brian Farkas

Commercial arbitration is a creature of contract; the parties are there because they choose to be, either including an arbitration clause in their written agreement or, after a dispute developed, electing to avoid litigation all together. Arbitration also comes with an up-front cost non-existent in litigation: the arbitrators. Taxpayers pay for their state and federal judges, but the parties themselves pay for their arbitrators.

But what happens if one party refuses (or is otherwise unable) to pay the arbitrator? If the arbitrator then refuses to proceed, as is likely, should the dispute revert to court, in derogation of the prior ...


Morris V. Allen And The Lost History Of The Anti-Injunction Act Of 1793, James E. Pfander, Nassim Nazemi 2015 Northwestern University School of Law

Morris V. Allen And The Lost History Of The Anti-Injunction Act Of 1793, James E. Pfander, Nassim Nazemi

Northwestern University Law Review

No abstract provided.


Unreasonable Doubt: Warren Hill, Aedpa, And The Unconstitutionality Of Georgia's Reasonable Doubt Standard, Adam Lamparello 2015 Indiana Tech Law School

Unreasonable Doubt: Warren Hill, Aedpa, And The Unconstitutionality Of Georgia's Reasonable Doubt Standard, Adam Lamparello

Adam Lamparello

Georgia’s “beyond a reasonable doubt” standard for determining intellectual disability has led to an absurd—and arbitrary—result. A Georgia state court held that defendant Warren Hill was intellectually disabled, yet still sentenced Hill to death. Seven experts—and the court—deemed Hill disabled under a preponderance of the evidence standard. He remains on death row, however, because Georgia’s “preposterous burden of proof” requires that intellectual disability be proved beyond a reasonable doubt, a standard experts have said is nearly impossible to satisfy. It “effectively limits the constitutional right protected in Atkins,” and creates a conditional, not categorical ...


Talking Points, Alex Stein, Jef De Mot 2015 Cardozo Law School

Talking Points, Alex Stein, Jef De Mot

Alex Stein

Our civil liability system affords numerous defenses against every single violation of the law. Against every single claim raised by the plaintiff, the defendant can assert two or more defenses each of which gives him an opportunity to win the case. As a result, when a court erroneously strikes out a meritorious defense, it might still keep the defendant out of harm’s way by granting him another defense. Rightful plaintiffs, on the other hand, must convince the court to deny each and every defense asserted by the defendant. Any rate of adjudicative errors—random and completely unbiased—consequently increases ...


All Together Now: Using Principles Of Group Dynamics To Train Better Jurors, Sara G. Gordon 2015 University of Nevada, Las Vegas -- William S. Boyd School of Law

All Together Now: Using Principles Of Group Dynamics To Train Better Jurors, Sara G. Gordon

Scholarly Works

We ask juries to make important decisions that have a profound impact on people’s lives. We leave these decisions in the hands of groups of laypeople because we hope that the diverse range of experiences and knowledge in the group will lead to more thoughtful and informed decisionmaking. Studies suggest that diverse groups of jurors have different perspectives on evidence, engage in more thorough debate, and more closely evaluate facts. At the same time, there are a variety of problems associated with group decisionmaking, from the loss of individual motivation in group settings, to the vulnerability of groups to ...


The Corporate Conspiracy Vacuum (Formerly "Corporate Conspiracy: How Not Calling A Conspiracy A Conspiracy Is Warping The Law On Corporate Wrongdoing"), Josephine Sandler Nelson 2015 Harvard Law School Affiliates

The Corporate Conspiracy Vacuum (Formerly "Corporate Conspiracy: How Not Calling A Conspiracy A Conspiracy Is Warping The Law On Corporate Wrongdoing"), Josephine Sandler Nelson

J.S. Nelson

The intracorporate conspiracy doctrine immunizes an enterprise and its agents from conspiracy prosecution based on the legal fiction that an enterprise and its agents are a single actor incapable of the meeting of two minds to form a conspiracy. The doctrine, however, misplaces incentives in contravention of agency law, criminal law, tort law, and public policy. As a result of this absence of accountability, harmful behavior is ordered and performed without consequences, and the victims of the behavior suffer without appropriate remedy.

The vacuum at the center of American conspiracy law has now warped the doctrines around it. Especially in ...


The Supreme Court's New Approach To Personal Jurisdiction, Bernadette Bollas Genetin 2015 University of Akron School of Law

The Supreme Court's New Approach To Personal Jurisdiction, Bernadette Bollas Genetin

Bernadette Bollas Genetin

In the Supreme Court’s recent general jurisdiction cases, it narrowed general jurisdiction in accord with a “reasonableness” approach to jurisdiction that is consistent with International Shoe’s so-called “forward-looking” face. In the Court’s most recent specific jurisdiction case, Walden v. Fiore, the Court took steps toward assessing specific jurisdiction under a reasonableness analysis, but it ultimately reunited the antagonistic “reasonableness” and territorial power theories to impose artificial limits on specific jurisdiction. The newly narrowed general jurisdiction will not often be available as a “safety valve” to provide jurisdiction in some cases in which jurisdiction would be reasonable under ...


The Supreme Court's New Approach To Personal Jurisdiction, Bernadette Bollas Genetin 2015 University of Akron School of Law

The Supreme Court's New Approach To Personal Jurisdiction, Bernadette Bollas Genetin

Akron Law Publications

In the Supreme Court’s recent general jurisdiction cases, it narrowed general jurisdiction in accord with a “reasonableness” approach to jurisdiction that is consistent with International Shoe’s so-called “forward-looking” face. In the Court’s most recent specific jurisdiction case, Walden v. Fiore, the Court took steps toward assessing specific jurisdiction under a reasonableness analysis, but it ultimately reunited the antagonistic “reasonableness” and territorial power theories to impose artificial limits on specific jurisdiction. The newly narrowed general jurisdiction will not often be available as a “safety valve” to provide jurisdiction in some cases in which jurisdiction would be reasonable under ...


Free Expression, In-Group Bias, And The Court's Conservatives: A Critique Of The Epstein-Parker-Segal Study, Todd E. Pettys 2015 University of Iowa College of Law

Free Expression, In-Group Bias, And The Court's Conservatives: A Critique Of The Epstein-Parker-Segal Study, Todd E. Pettys

Todd E. Pettys

In a recent, widely publicized study, a prestigious team of political scientists concluded that there is strong evidence of ideological in-group bias among the Supreme Court’s members in First Amendment free-expression cases, with the current four most conservative justices being the Roberts Court’s worst offenders. Beneath the surface of the authors’ conclusions, however, one finds a surprisingly sizable combination of coding errors, superficial case readings, and questionable judgments about litigants’ ideological affiliations. Many of those problems likely flow either from shortcomings that reportedly afflict the Supreme Court Database (the data set that nearly always provides the starting point ...


Disappearing Claims And The Erosion Of Public Law, J. Maria Glover 2015 Georgetown University Law Center

Disappearing Claims And The Erosion Of Public Law, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

The Supreme Court’s arbitration jurisprudence in the last five years represents the culmination of a three-decade long expansion of the use of private arbitration as an alternative to court adjudication in the resolution of disputes of virtually every type of justiciable claim. As scholars have traced, privatizing disputes that would otherwise be public may well erode public confidence in public institutions and the judicial process. Accordingly, many observers have linked this decades-long privatization of dispute resolution to an erosion of the public realm. In this piece I argue that the Court’s recent arbitration jurisprudence undermines the public law ...


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