Digital Commons Network^™

Rising Confusion About "Arising Under" Jurisdiction In Patent Cases, Paul Gugliuzza

Faculty Scholarship

By statute, all cases “arising under” patent law must be heard exclusively by the federal courts (not state courts) and, on appeal, by the Federal Circuit (not the twelve regional circuits). But not all cases involving patents “arise under” patent law. As recently as 2013, the Supreme Court ruled that the mere need to apply patent law in, for example, a malpractice case involving a patent lawyer, is insufficient to trigger exclusive jurisdiction. Rather, the Court held, for a case that does not involve claims of patent infringement to arise under patent law, the patent issue must be “important . …

Evaluating Constitutional Hardball: Two Fallacies And A Research Agenda, Joseph Fishkin, David E. Pozen

Faculty Scholarship

This Reply addresses the responses by Professors David Bernstein and Jed Shugerman to our essay Asymmetric Constitutional Hardball. Bernstein's response, we argue, commits the common fallacy of equating reciprocity with symmetry: assuming that because constitutional hardball often "takes two" to play, both sides must be playing it in a similar manner. Shugerman's response, on the other hand, helps combat the common fallacy of equating aggressiveness with wrongfulness: assuming that because all acts of constitutional hardball strain norms of governance, all are similarly damaging to democracy. We suggest that whereas Bernstein's approach would set back the burgeoning effort to study constitutional …

Immigrant Sanctuary As The 'Old Normal': A Brief History Of Police Federalism, Trevor George Gardner

Scholarship@WashULaw

Three successive presidential administrations have opposed immigrant sanctuary policy, at various intervals characterizing state and local government restrictions on police participation in federal immigration enforcement as reckless, aberrant, and unpatriotic. This Article finds these claims to be ahistorical in light of the long and singular history of a field this Article identifies as “police federalism.” For nearly all of U.S. history, Americans within and outside of the political and juridical fields flatly rejected federal policies that would make state and local police subordinate to the federal executive. Drawing from Bourdieusian social theory, this Article conceptualizes the sentiment driving this longstanding …

Originalism And The Law Of The Past, William Baude, Stephen E. Sachs

Faculty Scholarship

Originalism has long been criticized for its “law office history” and other historical sins. But a recent “positive turn” in originalist thought may help make peace between history and law. On this theory, originalism is best understood as a claim about our modern law — which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders’ law, unless lawfully changed.

This theory has three important implications for the role of history in law. First, whether and how past law matters today is a question of current law, not of …

A Controversial Transplant? Debate Over The Adaptation Of The Napoleonic Code On The Polish Territories In The Early 19th Century, Michał Gałędek, Anna Klimaszewska

Journal of Civil Law Studies

This article focuses on the attitude of the Polish legal elite regarding the adaptation of French civil law introduced on the Polish territories in the Duchy of Warsaw, established by Napoleon in 1807. While addressing the Polish example, it underscores the universal nature of problems engendered by legal transfer and by the social reactions to foreign solutions. It sheds light on the state of mind of Polish enlightened elites, on their approach toward new legal instruments and on the challenges of adapting them to the socioeconomic conditions of a semi-peripheral country. The Polish situation in the early 19th century provides …

Criminal Justice, Inc., John Rappaport

Articles

No abstract provided.

High-Energy Laser Weapons: Overpromising Readiness, Ash Rossiter

The US Army War College Quarterly: Parameters

No abstract provided.

Practicable And Justiciable: Why North Carolina’S Constitutional Vision Of Higher Education Is Judicially Enforceable, South A. Moore

Duke Law Journal

Two hundred and twenty-five years ago, North Carolina established the nation’s oldest public university, choosing as its home a particularly inviting poplar tree in present-day Chapel Hill. Today, UNC-Chapel Hill is part of a sixteen-campus university system known nationwide for its commitment to ensuring that public universities remain financially accessible to the citizens who support them.

That commitment is codified in Article IX, Section 9 of the North Carolina Constitution, which requires that tuition at the State’s public universities be “as far as practicable . . . free of expense.” That clause was first introduced in North Carolina’s 1868 Constitution, …

Law, Autonomy, And Local Government: A Legal History Of Municipal Corporations In Canada West/Ontario, 1850-1880, Mary Margaret Pelton Stokes

PhD Dissertations

The historiography of local government in mid-nineteenth century Canada West/Ontario is divided on the question of municipal autonomy. The more dominant thesis asserts that the Municipal Corporations (Baldwin) Act of 1849 ushered in a period of freedom for municipalities. The second depicts the Act as oppressive of autonomy in the interests of economic development. Both interpretations are based largely on extrapolation from earlier and later periods; there have been no direct examinations of local governance in Canada West/Ontario for what may be considered its formative period, from 1850 to 1880. In addition, much that has been written has been conceptually …

Foreword: The Future Of Human Rights Scholarship, James Loeffler, Mila Versteeg

Law and Contemporary Problems

No abstract provided.

Lawyers In Africa: Brokers Of The State, Intermediaries Of Globalization - A Case Study Of The "Africa" Bar In Paris, Sara Dezalay

Indiana Journal of Global Legal Studies

Africa is the "Global Economy's Last Frontier"! Images of the African continent as a boon of mineral riches, and a new legal Far West pervade media and scholarly accounts. Yet, these images tend to reflect the protracted political and development dependency of African states, with lawyers involved in corporate dealings on the continent either denounced as mercenaries at the service of neo-colonial "looting" or idealized as missionaries of the rule of law. This article suggests a research strategy that moves away from these ideological and political accounts. It uses lawyers' trajectories and professional strategies as an entry-point to reglobalize the …

Forgotten Cases: Worthen V. Thomas, David F. Forte

Cleveland State Law Review

According to received opinion, the case of the Home Bldg. & Loan Ass’n v. Blaisdell, decided in 1934, laid to rest any force the Contract Clause of the United States Constitution had to limit state legislation that affected existing contracts. But the Supreme Court’s subsequent decisions belies that claim. In fact, a few months later, the Court unanimously decided Worthen v. Thomas, which reaffirmed the vitality of the Contract Clause. Over the next few years, in twenty cases, the Court limited the reach of Blaisdell and confirmed the limiting force of the Contract Clause on state legislation. Only …

Ain’T I…?: The Dehumanizing Effect Of The Regulation Of Slave Womanhood And Family Life, Dacia Green

Duke Journal of Gender Law & Policy

No abstract provided.

Perceptions Of Barriers To Leadership Appointment And Promotion Of African American Female Commissioned Officers In The United States Military, Beverly Henderson Davis

Doctoral Dissertations

The U.S. military is perceived by many to be the example of workplace meritocracy, but historical studies have shown that the perceptions of African American female commissioned officers run counter to that belief. The military has as its goal the movement from a diverse fighting force to one that is totally inclusive of all members. The purpose of this study was to gather insights into whether the military has moved toward full integration from the viewpoint of the demographic that has shown the least confidence in the accomplishment of that task.

This qualitative study involved 12 participants: active duty, retired, …

An Unseen Light, Aram Goudsouzian, Charles W. Mckinney, Jr.

Civil Rights

In An Unseen Light: Black Struggles for Freedom in Memphis, Tennessee, eminent and rising scholars present a multidisciplinary examination of African American activism in Memphis from the dawn of emancipation to the twenty-first century. Together, they investigate episodes such as the 1940 "Reign of Terror" when black Memphians experienced a prolonged campaign of harassment, mass arrests, and violence at the hands of police. They also examine topics including the relationship between the labor and civil rights movements, the fight for economic advancement in black communities, and the impact of music on the city's culture. Covering subjects as diverse as politics, …

1979 - The California Water Atlas

Miscellaneous Documents and Reports

The atlas was developed as an attempt to provide the average citizen with a single-volume point of access to understanding how water works in the State of California. It addressed treatments of every aspect of water supply, delivery, and use in California, the nature of the water environment, the changes mankind has made in that environment, the history of water development, the operation of the major natural and artificial water systems, the relationship of water pricing to water consumption, the uses of water in industry, recreation, and energy development, the problems of water quality, and the current (1979) and emerging …

Public Requitals: Corrective, Retributive, And Distributive Justice, Bailey Kuklin

Cleveland State Law Review

The currently predominant view of public requitals for criminal behavior draws on the deontic guidance provided rather sketchily by Kant’s writings. He offers a broad, formal framework for the mandate to respect others and punish those who criminally violate the mandate. As ethical beings, people have the duty to avoid invading the "autonomy space" of others that is delineated by maxims designed to reasonably and fairly balance everyone’s equal liberty and security interests. Once society settles on a complete and coherent set of maxims that determines the reach of one’s autonomy space, it must then turn to maxims that address …

Analyzing The Differentiation Among State Medical Marijuana Policies By Examining State Policies & Trends, Richard Furlong

Political Science Theses and Capstones

Support for marijuana has been growing nationwide. This increased support has gained a lot of momentum since the late 1990s when California became the first state to legalize marijuana for medical use by enacting Proposition 215, or the Compassionate Use Act. Since the enactment of Proposition 215, 28 more states and the District of Columbia have legalized marijuana for medicinal use. I look into why states have begun to adopt these laws, and what makes these states differ throughout the country in the timeliness of their actions. I assembled data to examine a variety of state policies to attempt to …

A Fraction Of A Percent: A Call To Legal Service Providers To Increase Assistance To Community Nonprofits Using Biglaw Pro Bono, Rebecca Nieman

University of Arkansas at Little Rock Law Review

No abstract provided.

The Resilient Foundation Of Democracy: The Legal Deconstruction Of The Washington Posts's Condemnation Of Edward Snowden, Hanna Kim

Indiana Law Journal

On September 17, 2016, The Washington Post (“the Post”) made history by being the first paper to ever call for the criminal prosecution of its own source —Edward Snowden. Yet, two years prior to this editorial, the Post accepted the 2014 Pulitzer Prize in Public Service for its “revelation of widespread secret surveillance by the National Security Agency”—an honor which would not have been bestowed had Snowden not leaked the documents through this news outlet. The other three major media outlets that received and published Snowden’s documents and findings—The Guardian, The New York Times, and The Intercept—all have taken the …

The Thin Blue Line From Crime To Punishment, Alice Ristroph

Faculty Scholarship

No abstract provided.

E-Museletter: April 2018, William Taylor Muse Law Library

Museletter

This Issue:

Second Floor Renovation

Bridge the Gap

Hiring Law Library Research Assistants

Summer Access to Bloomberg, Lexis, and Westlaw

Bar Preparation

Print Credits

Study Aids

What's Next: Counter-Stories And Theorizing Resistance (Foreword), Tayyab Mahmud

Faculty Articles

No abstract provided.

Precedent And Disagreement, Glen Staszewski

Michigan Law Review

A review of Randy J. Kozel, Settled Versus Right: A Theory of Precedent.

The Dilemma Of Judicial Appointment In Egypt Questions Of Gender Equality, Elimination Of Political Opposition And Underprivileged Citizens, Shams Al Din Al Hajjaji

DePaul Journal for Social Justice

No abstract provided.

Natural Resources And Natural Law Part I: Prior Appropriation, Robert W. Adler

Utah Law Faculty Scholarship

In recent years there has been a resurgence of civil disobedience over public land policy in the West, sometimes characterized by armed confrontations between ranchers and federal officials. This trend reflects renewed assertions that applicable positive law violates the natural rights (sometimes of purportedly divine origin) of ranchers and other land users, particularly under the prior appropriation doctrine and grounded in Lockean theories of property. At the same time, Native Americans and environmental activists on the opposite side of the political-environmental spectrum have also relied on civil disobedience to assert natural rights to a healthy environment, based on public trust …

Zombie Religious Institutions, Elizabeth Sepper

Northwestern University Law Review

This Article uncovers and names a phenomenon of pressing importance for healthcare policy and religious liberty law: the rise of zombie religious institutions—organizations that have contractual commitments to religious identity but lack actual attachments to churches or associations of religious people. Contracts create religion—sometimes in perpetuity—for institutions that are not, or never have been, religious and for providers who do not share the institution’s religious precepts. This Article details religion’s spread across healthcare through affiliations, mergers, and—most surprisingly—sales of hospitals that continue religious practice after their connection to a church ends. These contracts require hospitals—secular and religious, public and private, …

A Non-Originalist Separation Of Powers, Eric J. Segall

University of Richmond Law Review

No abstract provided.

Foreword: What’S Next? Counter-Stories And Theorizing Resistance, Tayyab Mahmud

Seattle Journal for Social Justice

No abstract provided.

Prophesy, Public Theology, And Questions Of Justice: Some Modest Reflections, Barry Sullivan

Loyola University Chicago Law Journal

I must confess that over the past few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro’s great stumbling block in his stride toward freedom is not the White Citizen’s Council-er or the Ku Klux Klanner, but the white moderate, who is more devoted to “order” than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice . . . . Lukewarm acceptance is much more bewildering than outright rejection.1

[T]he Church has always had the …