Pepperdine University
NELLCO
Maurer School of Law: Indiana University
University of Missouri School of Law
American University Washington College of Law
University of Kentucky College of Law
Yale Law School
Holding Up And Holding Out,
2015
Santa Clara University
Holding Up And Holding Out, Colleen V. Chien
Michigan Telecommunications and Technology Law Review
Patent “hold-up” and patent “hold-out” present important, alternative theories for what ails the patent system. Patent “hold-up” occurs when a patent owner sues a company when it is most vulnerable—after it has implemented a technology—and is able wrest a settlement because it is too late for the company to change course. Patent “hold-out” is the practice of companies routinely ignoring patents and resisting patent owner demands because the odds of getting caught are small. Hold-up has arguably predicted the current patent crises, and the ex ante assertion of technology patents whether in the smartphone war, standards, or patent ...
Proportionality And The Social Benefits Of Discovery: Out Of Sight And Out Of Mind?,
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,
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 ...
Everything Is Presumed In Texas,
2015
Shook, Hardy & Bacon L.L.P.
Everything Is Presumed In Texas, Benjamin Walther
Benjamin Walther
As this Article will reveal, the Fifth Circuit has traditionally been loath to apply the presumption against preemption in most cases. Texas courts, on the other hand, have consistently employed a particularly strong application of the presumption to all types of preemption cases. This inconsistency between these two jurisdictions creates an incentive for forum shopping. Generally, the courts rely on a defendant’s ability to remove a case to the federal courts to counteract the plaintiff’s exclusive power to decide the forum. This ability, however, is not available to a defendant within the context of preemption cases. As such ...
All Together Now: Using Principles Of Group Dynamics To Train Better Jurors,
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 ...
Work Made For Hire – Analyzing The Multifactor Balancing Test,
2015
University of Akron School of Law
Work Made For Hire – Analyzing The Multifactor Balancing Test, Ryan G. Vacca
Akron Law Publications
Authorship, and hence, initial ownership of copyrighted works is oftentimes controlled by the 1976 Copyright Act’s work made for hire doctrine. This doctrine states that works created by employees within the scope of their employment result in the employer owning the copyright. One key determination in this analysis is whether the hired party is an employee or independent contractor. In 1989, the U.S. Supreme Court, in CCNV v. Reid, answered the question of how employees are distinguished from independent contractors by setting forth a list of factors courts should consider. Unfortunately, the Supreme Court did not give further ...
Work Made For Hire – Analyzing The Multifactor Balancing Test,
2015
University of Akron School of Law
Work Made For Hire – Analyzing The Multifactor Balancing Test, Ryan G. Vacca
Ryan G. Vacca
Authorship, and hence, initial ownership of copyrighted works is oftentimes controlled by the 1976 Copyright Act’s work made for hire doctrine. This doctrine states that works created by employees within the scope of their employment result in the employer owning the copyright. One key determination in this analysis is whether the hired party is an employee or independent contractor. In 1989, the U.S. Supreme Court, in CCNV v. Reid, answered the question of how employees are distinguished from independent contractors by setting forth a list of factors courts should consider. Unfortunately, the Supreme Court did not give further ...
Free Expression, In-Group Bias, And The Court's Conservatives: A Critique Of The Epstein-Parker-Segal Study,
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,
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 ...
New York Residential Landlord-Tenant Law And Procedure—2014-2015 (7th Ed. 2015),
2015
Columbia, Fordham & NYU Law Schools
New York Residential Landlord-Tenant Law And Procedure—2014-2015 (7th Ed. 2015), Gerald Lebovits
Gerald Lebovits
No abstract provided.
Court Of Appeals Of New York, Watson V. State Commission On Judicial Conduct,
2014
Touro College Jacob D. Fuchsberg Law Center
Court Of Appeals Of New York, Watson V. State Commission On Judicial Conduct, Denise Shanley
Touro Law Review
No abstract provided.
Therapeutic Jurisprudence,
2014
College of Law, University of Arizona
Lawrence V. Texas: The Decision And Its Implications For The Future,
2014
Touro Law Center
Lawrence V. Texas: The Decision And Its Implications For The Future, Martin A. Schwartz
Touro Law Review
No abstract provided.
Qualified Immunity: The Constitutional Analysis And Its Application,
2014
Suffolk University Law School
Qualified Immunity: The Constitutional Analysis And Its Application, Karen Blum
Touro Law Review
No abstract provided.
Popular Culture's Portrayal Of Attorney Decision-Making And It's Consequences- An Analysis Of An Attorney's Internal Ethical Conflict In Film,
2014
Barry University
Popular Culture's Portrayal Of Attorney Decision-Making And It's Consequences- An Analysis Of An Attorney's Internal Ethical Conflict In Film, Tara M. Parente
Tara M. Parente
This paper explores how popular culture portrays attorney decision-making and its consequences. This paper compares and contrasts two films in order to exemplify how attorneys are portrayed throughout film and how this carries over into real life. Attorneys are faced with ethical dilemmas at all times, especially throughout career advancement and the decisions made tend to affect every aspect of an attorney's life.
Forum Selling,
2014
USC Law School
Forum Selling, Daniel M. Klerman, Greg Reilly
University of Southern California Legal Studies Working Paper Series
Forum shopping is problematic because it may lead to forum selling. For diverse motives, such as prestige, local benefits, or re-election, some judges want to hear more cases. When plaintiffs have wide choice of forum, such judges have incentives to make the law more pro-plaintiff, because plaintiffs choose the court. While only a few judges may be motivated to attract more cases, their actions can have large effects, because their courts will attract a disproportionate share of cases. For example, judges in the Eastern District of Texas have distorted the rules and practices relating to case assignment, joinder, discovery, transfer ...
The Priest-Klein Hypotheses: Proofs, Generality And Extensions,
2014
USC Gould School of Law
The Priest-Klein Hypotheses: Proofs, Generality And Extensions, Yoon-Ho Alex Lee, Daniel M. Klerman
University of Southern California Legal Studies Working Paper Series
Priest and Klein’s 1984 article, “The Selection of Disputes for Litigation,” famously hypothesized a “tendency toward 50 percent plaintiff victories” among litigated cases. Despite the article’s enduring influence, its results have never been formally proved, and doubts remain about their meaning, validity, and generality. This article makes five contributions. First, it distinguishes six distinct hypotheses plausibly attributable to Priest and Klein. Second, it mathematically proves or disproves them under the original model. Third, it raises a novel critique of the model—that it is non-Bayesian—and shows that most of the hypotheses remain valid under a modified model ...
European Economic Community - The Use Of Article 173(2) Of The Eec Treaty To Contest Actions Of The European Parliament, Partie Ecologiste 'Les Verts' (The Greens) V. European Parliament, [1987] 2 Comm. Mkt. L.R. 343 (1986).,
2014
University of Georgia School of Law
European Economic Community - The Use Of Article 173(2) Of The Eec Treaty To Contest Actions Of The European Parliament, Partie Ecologiste 'Les Verts' (The Greens) V. European Parliament, [1987] 2 Comm. Mkt. L.R. 343 (1986)., Scott N. Carlson
Georgia Journal of International & Comparative Law
No abstract provided.
Class Actions Suits Vs. Arbitration Clause (Mexico),
2014
Universidad Autonoma de Baja California
Class Actions Suits Vs. Arbitration Clause (Mexico), Jorge E. De Hoyos Walther
Jorge E De Hoyos Walther
On September 24, 2014, the Mexican Supreme Court (SCJN) issued a landmark decision in the world of arbitration and class action suits. In summary, SCJN upheld that it is possible to file a class action suit, even though an arbitration clause is included in the agreement that governs the business relationship
Ethos, Pathos, And Logos: The Benefits Of Aristotelian Rhetoric In The Courtroom,
2014
Washington University School of Law
Ethos, Pathos, And Logos: The Benefits Of Aristotelian Rhetoric In The Courtroom, Krista C. Mccormack
Washington University Jurisprudence Review
No abstract provided.
