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Williams V. Lee And The Debate Over Indian Equality, Bethany Berger 2011 University of Connecticut School of Law

Williams V. Lee And The Debate Over Indian Equality, Bethany Berger

Faculty Articles and Papers

Williams v. Lee (1959) created a bridge between century-old affirmations of the immunity of Indian territories from state jurisdiction and the tribal self-determination policy of the twentieth century. It has been called the first case in the modern era of federal Indian law. Although no one has written a history of the case, it is generally assumed to be the product of a timeless and unquestioning struggle of Indian peoples for sovereignty. This Article, based on interviews with the still-living participants in the case and on examination of the congressional records, Navajo council minutes, and Supreme Court transcripts, records, and ...


Copyright And Social Movements In Late Nineteenth-Century America, Steven Wilf 2011 University of Connecticut School of Law

Copyright And Social Movements In Late Nineteenth-Century America, Steven Wilf

Faculty Articles and Papers

The cultural turn in copyright law identified authorship as a rhetorical construct employed by economic interests as a mechanism to establish claims to property rights. Grassroots intellectual property political movements have been seen as both a means of countering these interests’ ever-expanding proprietary control of knowledge and establishing a more public regarding copyright system. This Article examines one of the most notable intellectual property political movements, the emergence of late nineteenth-century agitation to provide copyright protection for foreign authors as a social movement. It places this political and legal activism within the larger framework of Progressive Era reform. During this ...


Law/Text/Past, Steven Wilf 2011 University of Connecticut School of Law

Law/Text/Past, Steven Wilf

Faculty Articles and Papers

How might legal historians read text? What is particular about their modes of reading as opposed to those employed by readers in other disciplines? This essay will analyze the distinctive features of legal texts such as those stemming from the pervasive reliance upon conventions or boilerplate as part of a bricolage construction, the focus upon legitimizing gestures to official authority, and the normative, almost instrumental nature of many legal texts. While other sorts of texts might be more expressive, statutes, for example, always include a sanction. Drawing upon numerous examples, the paper identifies an expansive array of texts, including extra-official ...


Non-Per Se Treatment Of Buyer Price-Fixing In Intellectual Property Settings, Hillary Greene 2011 University of Connecticut School of Law

Non-Per Se Treatment Of Buyer Price-Fixing In Intellectual Property Settings, Hillary Greene

Faculty Articles and Papers

The ability of intellectual property owners to earn monopoly rents and the inability of horizontal competitors to price fix legally are two propositions that are often taken as givens. This article challenges the wholesale adoption of either proposition within the context of buyer price-fixing in intellectual property markets. More specifically, it examines antitrust law’s role in protecting patent holders’ rents through its condemnation of otherwise ostensibly efficient buyer price fixing. Using basic economic analysis, this article refines the legal standards applicable at this point of intersection between antitrust and patent law. In particular, the author recommends the limited abandonment ...


Telling Tales In School: Storytelling For Self-Reflection And Pedagogical Improvement In Clinical Legal Education, Faith Mullen 2011 The Catholic University of America, Columbus School of Law

Telling Tales In School: Storytelling For Self-Reflection And Pedagogical Improvement In Clinical Legal Education, Faith Mullen

Scholarly Articles and Other Contributions

In the past twenty years, there has been a surge in legal scholarship that recognizes the value of story in law, and law schools are beginning to tap into the extraordinary power of story. Largely absent from this mix are stories told by law students about their own experiences with the law. The authors used class time formerly devoted to clinic rounds to offer students the opportunity to tell stories about their cases outside the presence of their supervising attorneys. Clinical faculty then compared their own, recorded version of the story of a case with the student’s version. This ...


Clarifying The Doctrine Of Inequitable Conduct, Elizabeth I. Winston 2011 The Catholic University of America, Columbus School of Law

Clarifying The Doctrine Of Inequitable Conduct, Elizabeth I. Winston

Scholarly Articles and Other Contributions

Addressing squarely the issue of the multiple standards of materiality in inequitable conduct litigation, Therasense v. Becton Dickinson raises many difficult issues that could be clarified through the lens of the analogous concept of fraud on the Trademark Office. The standards for finding fraud on the Trademark Office lack the ambiguity found in the doctrine of inequitable conduct, despite the parallel penalties of unenforceability and requirements of proof of materiality and intent. Informed by the many decisions of Judge Michel, this essay concludes that the standards for finding fraud before the Trademark Office, as set forth in In re Bose ...


Winning The Game Of Appellate Musical Shoes: When The Appeals Band Plays, Jump From The Client’S To The Judge’S Shoes To Write The Statement Of Facts Ballad, Laurie A. Lewis 2011 The Catholic University of America, Columbus School of Law

Winning The Game Of Appellate Musical Shoes: When The Appeals Band Plays, Jump From The Client’S To The Judge’S Shoes To Write The Statement Of Facts Ballad, Laurie A. Lewis

Scholarly Articles and Other Contributions

An appellate brief's Statement of Facts is critical to a successful appeal. The client trusts the attorney with his or her story. To fully hear it, the attorney must actively listen and demonstrate empathy in the initial interview. The attorney needs to step into the client's shoes to retell the story at trial. On appeal, however, the attorney needs to step into the appellate judge's shoes. The story must be recast for an audience knowing nothing about the client. It must be interesting, and appeal to the judge's spirit of justice. If the client suffered an ...


Advocacy Revalued, Geoffrey C. Hazard Jr., Dana A. Remus 2011 University of Pennsylvania Law School

Advocacy Revalued, Geoffrey C. Hazard Jr., Dana A. Remus

Faculty Scholarship

A central and ongoing debate among legal ethics scholars addresses the moral positioning of adversarial advocacy. Most participants in this debate focus on the structure of our legal system and the constituent role of the lawyer-advocate. Many are highly critical, arguing that the core structure of adversarial advocacy is the root cause of many instances of lawyer misconduct. In this Article, we argue that these scholars’ focuses are misguided. Through reflection on Aristotle’s treatise, Rhetoric, we defend advocacy in our legal system’s litigation process as ethically positive and as pivotal to fair and effective dispute resolution. We recognize ...


Two Cheers, Not Three For Sixth Amendment Originalism, Stephanos Bibas 2011 University of Pennsylvania

Two Cheers, Not Three For Sixth Amendment Originalism, Stephanos Bibas

Faculty Scholarship

No abstract provided.


"Hot News": The Enduring Myth Of Property In News, Shyamkrishna Balganesh 2011 University of Pennsylvania

"Hot News": The Enduring Myth Of Property In News, Shyamkrishna Balganesh

Faculty Scholarship

No abstract provided.


Inside-Out Corporate Governance, David A. Skeel Jr., Vijit Chahar, Alexander Clark, Mia Howard, Bijun Huang, Federico Lasconi, A.G. Leventhal, Matthew Makover, Randi Milgrim, David Payne, Romy Rahme, Nikki Sachdeva, Zachary Scott 2011 University of Pennsylvania Law School

Inside-Out Corporate Governance, David A. Skeel Jr., Vijit Chahar, Alexander Clark, Mia Howard, Bijun Huang, Federico Lasconi, A.G. Leventhal, Matthew Makover, Randi Milgrim, David Payne, Romy Rahme, Nikki Sachdeva, Zachary Scott

Faculty Scholarship

Until late in the twentieth century, internal corporate governance—that is, decision making by the principal constituencies of the firm—was clearly distinct from outside oversight by regulators, auditors and credit rating agencies, and markets. With the 1980s takeover wave and hedge funds’ and equity funds’ more recent involvement in corporate governance, the distinction between inside and outside governance has eroded. The tools of inside governance are now routinely employed by governance outsiders, intertwining the two traditional modes of governance. We argue in this Article that the shift has created a new governance paradigm, which we call inside-out corporate governance ...


The Firm As Cartel Manager, Herbert J. Hovenkamp, Christopher R. Leslie 2011 University of Pennsylvania Law School

The Firm As Cartel Manager, Herbert J. Hovenkamp, Christopher R. Leslie

Faculty Scholarship

Antitrust law is the primary legal obstacle to price fixing, which is condemned by Section 1 of the Sherman Act. Firms that engage in price fixing may try to reduce their probability of antitrust liability in a number of ways. First, members of a price-fixing conspiracy go to great lengths to conceal their illegal activities from antitrust enforcers. Second, because Section 1 condemns only concerted action, firms may structure their relationship to appear to be the action of a single entity that is beyond the reach of Section One.

In its American Needle decision the Supreme Court held that the ...


The Logic And Limits Of Environmental Criminal Law In The Global Setting: Brazil And The United States--Comparisons, Contrasts, And Questions In Search Of A Robust Theory, Robert F. Blomquist 2011 Valparaiso University School of Law

The Logic And Limits Of Environmental Criminal Law In The Global Setting: Brazil And The United States--Comparisons, Contrasts, And Questions In Search Of A Robust Theory, Robert F. Blomquist

Law Faculty Publications

Strict but arguably unfair and counterproductive systems of criminal environmental law and enforcement exist in both the United States and Brazll in the twenty-first century. In order to create a sovereignty dividend encompassing the rule of law and evenhanded administrative control in the competitive global setting, both countries should rethink and reform their respective systems of environmental criminal law by seeking answers to several questions of legal philosophy in search of a robust theory.


Is The Quest For Corporate Responsibility A Wild Goose Chase? The Story Of Lovenheim V. Iroquois Brands, Ltd., D. A. Jeremy Telman 2011 Valparaiso University School of Law

Is The Quest For Corporate Responsibility A Wild Goose Chase? The Story Of Lovenheim V. Iroquois Brands, Ltd., D. A. Jeremy Telman

Law Faculty Publications

Peter Lovenheim owned a small stake in Iroquois Brands, Ltd (Iroquois). He proposed that the corporation discontinue its distribution of one product, pâté de foie gras, because he objected to the treatment of the geese necessary to the production of the product. Under federal regulations, Iroquois was required to include such proposals in the proxy materials it sent out in advance of its annual shareholder meeting unless an exception applied. Iroquois Brands thought it could exclude the proposal because the product in question constituted a trivial part of its business. Lovenheim went to the District Court seeking an order requiring ...


Should Black Immigrants Be Favored Over Black Hispanics And Black Multiracials In The Admissions Processes Of Selective Higher Education Programs?, Kevin D. Brown 2011 Indiana University Maurer School of Law

Should Black Immigrants Be Favored Over Black Hispanics And Black Multiracials In The Admissions Processes Of Selective Higher Education Programs?, Kevin D. Brown

Articles by Maurer Faculty

Since the origin of affirmative action, selective higher education institutions' have generally lumped all blacks into a unified Black/ African/African American category. However, this practice of treating all blacks alike has now changed. The Department of Education ("DOE") issued the Final Guidance on Maintaining, Collecting, and Reporting Racial and Ethnic Data to the United States Department of Education ("Guidance") in October 2007, which had a final implementation date for the reporting school year of 2010-2011. The Guidance marked the first time that the federal government dictated the procedures that educational institutions, including selective higher education programs, must follow when ...


Special Education, Poverty, And The Limits Of Private Enforcement, Eloise Pasachoff 2011 Georgetown University Law Center

Special Education, Poverty, And The Limits Of Private Enforcement, Eloise Pasachoff

Georgetown Law Faculty Publications and Other Works

This Article examines the appropriate balance between public and private enforcement of statutes seeking to distribute resources or social services to a socioeconomically diverse set of beneficiaries through a case study of the federal special education law, the Individuals with Disabilities Education Act (IDEA). It focuses particularly on the extent to which the Act’s enforcement regime sufficiently enforces the law for the poor. The Article responds to the frequent contention that private enforcement of statutory regimes is necessary to compensate for the shortcomings of public enforcement. Public enforcement, the story goes, is inefficient and relies on underfunded, captured, or ...


Regulating Morality Through The Common Law And Exclusionary Zoning, George P. Smith II, Gregory P. Bailey 2011 The Catholic University of America, Columbus School of Law

Regulating Morality Through The Common Law And Exclusionary Zoning, George P. Smith Ii, Gregory P. Bailey

Scholarly Articles and Other Contributions

The extent to which a free society seeks to regulate sexual expression is problematic. What was defined as immoral or contra bonos mores in the 20th century, has become less of an issue in today’s liberal society. Freedom of sexual intimacy and expression are, to be sure, 1st Amendment and 14th Amendment rights. But, with every assertion of a fundamental right or liberty must come a concomitant understanding that there is a co-ordinate responsibility to exercise that right reasonably. Determining the reasonableness of any conduct grounded in these two amendments must be fact sensitive and guided by community standards ...


Refractory Pain, Existential Suffering, And Palliative Care: Releasing An Unbearable Lightness Of Being, George P. Smith II 2011 The Catholic University of America, Columbus School of Law

Refractory Pain, Existential Suffering, And Palliative Care: Releasing An Unbearable Lightness Of Being, George P. Smith Ii

Scholarly Articles and Other Contributions

Since the beginning of the hospice movement in 1967, “total pain management” has been the declared goal of hospice care. Palliating the whole person’s physical, psycho-social, and spiritual states or conditions is central to managing the pain which induces suffering. At the end-stage of life, an inextricable component of the ethics of adjusted care requires recognition of a fundamental right to avoid cruel and unusual suffering from terminal illness. This Article urges wider consideration and use of terminal sedation, or sedation until death, as an efficacious palliative treatment and as a reasonable medical procedure in order to safeguard the ...


Reconceptualizing The Law Of Nuisance Through A Theory Of Economic Captivity, George P. Smith II, Matthew Saunig 2011 The Catholic University of America, Columbus School of Law

Reconceptualizing The Law Of Nuisance Through A Theory Of Economic Captivity, George P. Smith Ii, Matthew Saunig

Scholarly Articles and Other Contributions

Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative defenses are — although not often allowed in practice by the courts — found in contributory negligence and assumption of the risk.

This Article seeks to develop a theory of economic captivity which embraces the notion that a plaintiff may be constrained, socio-economically, in making choices ...


The Constitutional Right Not To Participate In Abortions: Roe, Casey, And The Fourteenth Amendment Rights Of Healthcare Providers, Mark L. Rienzi 2011 The Catholic University of America, Columbus School of Law

The Constitutional Right Not To Participate In Abortions: Roe, Casey, And The Fourteenth Amendment Rights Of Healthcare Providers, Mark L. Rienzi

Scholarly Articles and Other Contributions

The Fourteenth Amendment rights of various parties in the abortion context – the pregnant woman, the fetus, the fetus’ father, the state – have been discussed at length by commentators and the courts. Surprisingly, the Fourteenth Amendment rights of the healthcare provider asked to provide the abortion have not. Roe and Casey establish a pregnant woman’s Fourteenth Amendment right to decide for herself whether to have an abortion. Do those same precedents also protect her doctor’s right to decide whether to participate in abortion procedures?

The Court’s substantive due process analysis typically looks for rights that are “deeply rooted ...


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