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Catalogs, Alex Stein, Gideon Parchomovsky 2015 SelectedWorks

Catalogs, Alex Stein, Gideon Parchomovsky

Alex Stein

It is a virtual axiom in the world of law that legal norms come in two prototypes: rules and standards. The accepted lore suggests that rules should be formulated to regulate recurrent and frequent behaviors, whose contours can be defined with sufficient precision. Standards, by contrast, should be employed to address complex, variegated, behaviors that require the weighing of multiple variables. Rules rely on an ex ante perspective and are therefore considered the domain of the legislator; standards embody a preference for ex post, ad-hoc, analysis and are therefore considered the domain of courts. The rules/standards dichotomy has become ...


The Anti-Patent: A Proposal For Startup Immunity, Amy L. Landers 2015 Drexel University Thomas R. Kline School of Law

The Anti-Patent: A Proposal For Startup Immunity, Amy L. Landers

Amy L. Landers

The controversy surrounding the current implementation of the patent system is well known. Some question whether the system has become entirely dysfunctional and disincentives innovation, particularly as the law operates within some industries. Moreover, early stage companies, particularly those just beginning to gain success, are particularly vulnerable targets for lawsuits. Notably, these same companies can be rich sources of important technological innovation.

Because the U.S. has always had a patent system, it is impossible to understand the intended and unintended consequences of eliminating this form of intellectual property protection even in a limited manner. As economist Fritz Machlup stated ...


Inside Agency Interpretation, Christopher J. Walker 2015 SelectedWorks

Inside Agency Interpretation, Christopher J. Walker

Christopher J. Walker

The Constitution vests all legislative powers in Congress, yet Congress grants expansive lawmaking authority to federal agencies. As positive political theorists have long explored, Congress intends for federal agencies to faithfully exercise their delegated authority, but ensuring fidelity to congressional wishes is difficult due to asymmetries in information, expertise, and preferences that complicate congressional control and oversight. Indeed, this principal-agent problem has a democratic and constitutional dimension, as the legitimacy of administrative governance may well depend on whether the unelected bureaucracy is a faithful agent of Congress. Despite the predominance of lawmaking by regulation and the decades-long application of principal-agent ...


Congressional Perspective On Multilateral Trade Negotiations, Edgar L. Jenkins 2014 University of Georgia School of Law

Congressional Perspective On Multilateral Trade Negotiations, Edgar L. Jenkins

Georgia Journal of International & Comparative Law

No abstract provided.


Time For Change: Bringing Massachusetts Homestead And Personal Property Exemptions Into The Twenty-First Century, Lee Harrington 2014 University of Massachusetts School of Law

Time For Change: Bringing Massachusetts Homestead And Personal Property Exemptions Into The Twenty-First Century, Lee Harrington

University of Massachusetts Law Review

There are presently two pieces of legislation pending on Beacon Hill that are intended to offer amendments to the Homestead Statute and Exemption Statute that would offer meaningful changes and real relief for the citizens of the Commonwealth. This article provides a brief history of the two statutory schemes, provides some comparisons to the schemes in other states, and highlights the changes sought by the proposed amendments.


Computer Programs Under The United States Intellectual Property System: Sui Generis Legislation Is Needed, Joseph Francis Agnelli, III 2014 University of Massachusetts School of Law

Computer Programs Under The United States Intellectual Property System: Sui Generis Legislation Is Needed, Joseph Francis Agnelli, Iii

University of Massachusetts Law Review

Section I of this article explores the different avenues of intellectual property protection presently available for computer software here in the United States. Section II then discusses how the European Community has resolved the computer program crisis under European intellectual property law. Lastly, section III will illustrate why sui generis legislation would be the paramount way for Congress to attack the intricacy that is created by computer programs under American intellectual property law.


State Sovereign Immunity And Intellectual Property: An Evaluation Of The Trademark Remedy Clarification Act’S Attempt To Subject States To Suit In Federal Courts For Trademark Infringements Under The Lanham Act, Jennifer L. Fessler 2014 University of Massachusetts School of Law

State Sovereign Immunity And Intellectual Property: An Evaluation Of The Trademark Remedy Clarification Act’S Attempt To Subject States To Suit In Federal Courts For Trademark Infringements Under The Lanham Act, Jennifer L. Fessler

University of Massachusetts Law Review

There are two things that can be learned from this paper. First, the analytical framework developed by the Court in City of Boerne is a stringent test that has considerably narrowed Congress’s ability to abrogate state’s Eleventh Amendment immunity through legislation. Second, only half of the battle was won when Congress enacted the Trademark Remedy Clarification Act. Although it met the new requirements the Court placed on legislative efforts in Atascadero, it is not able to meet the requirements that were later set forth in Seminole Tribe. The Rehnquist Court’s holdings indicate the Court’s active pursuit ...


Toward A Less Adversarial Relationship Between Chevron And Gardner, James D. Ridgway 2014 University of Massachusetts School of Law

Toward A Less Adversarial Relationship Between Chevron And Gardner, James D. Ridgway

University of Massachusetts Law Review

Veterans benefits are a creature of statute. As such, nearly every veterans benefits issue presented to the courts for resolution involves the interpretation of a statute, regulation, or sub-regulatory authority. Although veterans law has been subject to judicial review for over twenty-five years, the courts still have yet to develop a coherent doctrine regarding when to resolve ambiguity in favor of the veteran versus when to defer to the interpretations of the Department of Veterans Affairs. This Article explores three possible approaches to developing a coherent vision of how veteran friendliness and agency deference can coexist and provide more predictability ...


The Case For Extending Pretrial Diversion To Include Possession Of Child Pornography, Sarah J. Long 2014 University of Massachusetts School of Law

The Case For Extending Pretrial Diversion To Include Possession Of Child Pornography, Sarah J. Long

University of Massachusetts Law Review

Pretrial diversion removes offenders with a low-risk of reoffending from the penal system and instead sends them to supervised treatment programs. The result is lower cost to the state and a second chance for those who successfully complete the program. Typically, violent crimes, such as murder and attempted murder, are exempt from pretrial diversion. Notably, sex related crimes are also ineligible in all jurisdictions. By excluding all sex-related crimes from pretrial diversion, possession of child pornography is adjudicated by the courts. As a result, young, first-time offenders who may be candidates for treatment are bundled with physical offenders, members of ...


Judicial Review And Judicial Supremacy, Jeremy Waldron 2014 NELLCO

Judicial Review And Judicial Supremacy, Jeremy Waldron

New York University Public Law and Legal Theory Working Papers

This paper attempts to identify a particular constitutional evil -- namely, judicial supremacy -- and to distinguish the objection to judicial supremacy from the broader case that can be made against judicial review. Even if one supports judicial review, one ought to have misgivings about the prospect of judicial supremacy. The paper associates judicial supremacy with three distinct tendencies in constitutional politics: (1) the temptation of courts to develop and pursue a general program (of policy and principle of their own) rather than just to intervene on a piecemeal basis; (2) the tendency of the highest court to become not only supreme ...


Duty-Bearers For Positive Rights, Jeremy Waldron 2014 NELLCO

Duty-Bearers For Positive Rights, Jeremy Waldron

New York University Public Law and Legal Theory Working Papers

Claims about social and economic rights (as a kind of human right) are often criticized because they fail to specify who are the bearers of the corresponding duties. We usually say that states are the duty-bearers, but it may not be possible for a poor state to bear the burden of these rights. And anyway it may be a mistake to focus exclusively on states in an age of globalization. This paper uses some analytic ideas from the 1970s and 1980s to address this problem. Drawing on the work of Neil MacCormick and Joseph Raz, it argues that it is ...


Elementary Statutory Interpretation: Rethinking Legislative Intent And History , Victoria F. Nourse 2014 Boston College Law School

Elementary Statutory Interpretation: Rethinking Legislative Intent And History , Victoria F. Nourse

Boston College Law Review

This Article argues that theorists and practitioners of statutory interpretation should rethink two very basic concepts—legislative intent and legislative history. Textualists urge that to look to legislative history is to seek an intent that does not exist. This Article argues we should put this objection to bed because, even if groups do not have minds, they have the functional equivalent of intent: they plan by using internal sequential procedures allowing them to project their collective actions forward in time. What we should mean by legislative “intent” is legislative “context.” For a group, context includes how groups act—their procedures ...


Will It Really Save You? Analyzing The Campus Sexual Violence Elimination Act, Rachel Marshall 2014 American University Washington College of Law

Will It Really Save You? Analyzing The Campus Sexual Violence Elimination Act, Rachel Marshall

Legislation and Policy Brief

No abstract provided.


Passing The Torch But Sailing Too Close To The Wind: Congress’S Role In Authorizing Administrative Branches To Promulgate Regulations That Contemplate Criminal Sanctions, Reem Sadik 2014 American University Washington College of Law

Passing The Torch But Sailing Too Close To The Wind: Congress’S Role In Authorizing Administrative Branches To Promulgate Regulations That Contemplate Criminal Sanctions, Reem Sadik

Legislation and Policy Brief

The Supreme Court has stated that Congress must simply “lay down by legislative act an intelligible principle” to which the agency must conform. If this is done, a court will find the delegation of broad authority to the agency to be constitutional. There is, however, an open issue regarding whether the “intelligible principle” standard applies to delegations of authority that allow for the promulgation of both civil and criminal penalties. In Touby v. United States, the Supreme Court was asked whether “something more than an ‘intelligible principle’ is required” when Congress authorizes an agency to issue regulations that contemplate criminal ...


Suppuration Of Powers: Abscam, Entrapment And The Politics Of Expulsion, Henry Biggs 2014 American University Washington College of Law

Suppuration Of Powers: Abscam, Entrapment And The Politics Of Expulsion, Henry Biggs

Legislation and Policy Brief

No abstract provided.


Editor's Welcome, Zachary I. Gold 2014 American University Washington College of Law

Editor's Welcome, Zachary I. Gold

Legislation and Policy Brief

No abstract provided.


General Discussion, Third Comparative Labor Law Roundtable 2014 University of Georgia School of Law

General Discussion, Third Comparative Labor Law Roundtable

Georgia Journal of International & Comparative Law

No abstract provided.


Workshop Democracy: Making Policy In Cote D'Ivoire, Max Levin 2014 SelectedWorks

Workshop Democracy: Making Policy In Cote D'Ivoire, Max Levin

Max Levin

Development experts would benefit from a better understanding of how policy is made in developing countries. In this article, I describe how health policy is made in Cote d’Ivoire, from the perspective of a Westerner embedded in the Ministry of Health for 10 months. I provide a narrative of how one health system reform—performance-based financing—moved from policy idea to enacted reform. I describe the origins of the reform in Cote d’Ivoire, how the government came to support the reform, and then the mechanics of how the reform was enacted. I then present observations on how policymaking ...


The Accidental Terrorists: Excludable Aliens Who Slip Across U.S. Borders, Susan M. Schreck 2014 University of Georgia School of Law

The Accidental Terrorists: Excludable Aliens Who Slip Across U.S. Borders, Susan M. Schreck

Georgia Journal of International & Comparative Law

No abstract provided.


The Rise And Fall And Resurrection Of American Criminal Codes, Paul H. Robinson 2014 University of Pennsylvania Law School

The Rise And Fall And Resurrection Of American Criminal Codes, Paul H. Robinson

Faculty Scholarship

This brief essay summarizes the virtues of the modern American codification movement of the 1960s and 70s, putting it in a larger global context, then describes how these once-enviable codes have been systematically degraded with thoughtless amendments, a process of degradation that is accelerating each year. After exploring the political dynamics that promote such degradation, the essay suggests the principles and procedures for fixing the current codes and, more importantly, structural changes to the process that could avoid the restart of degradation in the future.


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