Digital Commons Network^™

Legal Mechanic: Where Are We Going? The Generalist Vs. Specialist Challenge, Herbert M. Kritzer

Articles

This is a review essay considering two books: 'The Death of the American Trial' by Robert P. Burns and 'Specializing the Courts' by Lawrence Baum. The organizing theme of the essay is the lay jurors represent one end of the spectrum of potential adjudicators with specialized courts and tribunals represent the other end of the spectrum. While Burns does not develop his argument in terms of specialization, a significant aspect of his argument is that there is value to relying on nonspecialist, lay adjudicators. Burns is an advocate for the trials, particularly jury trials; as such, he glosses over evidence …

Why Didn't Subprime Investors Demand A (Much Larger) Lemons Premium?, Claire Hill

Articles

The subprime crisis would never have occurred had investors not been such enthusiastic consumers of subprime securities. The investors now say, somewhat self-servingly (but probably correctly), that they did not understand the securities - securities for which they were willing to pay very high prices. This essay seeks to explain investors’ readiness to pay premium prices for these novel and complex instruments. The most satisfactory explanation lies in the incentives for herding among agents who made investment decisions for others. Investors (and markets) compare investment managers to other investment managers. A manager’s best strategy, therefore, may be to do what …

Women, Vulnerability, And Humanitarian Emergencies, Fionnuala Ní Aoláin

Articles

The catastrophic dimensions of humanitarian emergencies are increasingly understood and more visible to states and international institutions. There is greater appreciation for the social, economic and political effects that follow in the short to long term from such catastrophes whatsoever their causes. Rhetorically too, there is some recognition of the gendered dimensions of humanitarian emergencies in policy and institutional contexts. It is generally acknowledged that women are more visible in the refugee and internally displaced communities that typically result from many humanitarian crises. Women, because of their acute care responsibilities in most societies, also disproportionately bear the brunt of familial …

Competitiveness In State Supreme Court Elections, 1945-2009, Herbert M. Kritzer

Articles

There has been much debate over changes in state supreme court elections. However, most of the research that debate refers to considers a relatively short time span. This paper reports an analysis of contestation and competitiveness in state supreme elections for the entire post-World War II period. The paper considers both primary and general elections (other than retention elections). The central finding of the paper is that outside the South there has in fact been surprising little change, either in whether incumbents are challenged for reelection or in the competitiveness of the elections that are contested (looking separately at open …

Unilateral Alteration Of Public Sector Collective Bargaining Agreements And The Contract Clause, Stephen F. Befort

Articles

As public sector budgets have waxed and waned in response to changes in the economic cycle over the past 30 years, public sector employers increasingly have sought to control personnel costs by resorting to measures such as wage freezes and furloughs. Not infrequently, those measures have pitted the viability of collective bargaining agreements against the ability of government to protect its coffers. This article examines those court decisions that have considered the reach of the contract clause in this setting over the past thirty years. Most of these courts properly have applied the principles established by the Supreme Court in …

Property Rights On The New Frontier: Climate Change, Natural Resource Development, And Renewable Energy, Alexandra B. Klass

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This Article explores the history of natural resources law and pollution control law to provide insights into current efforts by states to create wind easements, solar easements, and other property rights in the use of or access to renewable resources. Development of these resources is critical to current efforts to address climate change, which has a foot in both natural resources law and pollution control law. This creates challenges for developing theoretical and policy frameworks in this area, particularly surrounding the role of property rights. Property rights have played an important role in both natural resources law and pollution control …

Pro Se Litigation In Times Of Financial Hardship--A Legal Crisis And Its Solutions, Richard W. Painter

Articles

This article discusses recent ABA reports on pro se legal representation and changes to the Rules of Professional Conduct that give lawyers more flexibility in assisting pro se litigants. Because many pro se representations are in family law cases, the article emphasizes the difficulties of pro se litigants in family court. The article then proposes that unauthorized practice of law restrictions be liberalized to allow on-line providers to sell legal forms, assistance with completion of those forms and other law related services. The benefits of allowing such non-lawyer providers entry into the market for legal services outweigh the potential compromise …

State Attorneys General's Use Of Concurrent Public Enforcement Authority In Federal Consumer Protection Laws, Amy Widman, Prentiss Cox

Articles

Recent scholarly and legislative interest in state enforcement of federal law has led to the need for an empirical understanding of how and when these enforcement powers are used. This article reports on an examination of the use by state attorneys general of sixteen federal consumer protection laws that expressly allow for state enforcement. The data are sorted and analyzed by both single state actions and multistate actions over time, and by the involvement of federal agencies in the state cases. The data reveal a measured use of such powers by state attorneys general and robust state and federal cooperation …

Modeling Same-Direction Two-Lane Traffic For Bridge Loading, Eugene J. Obrien, Bernard Enright

Articles

Many highway bridges carry traffic in two same-direction lanes, and modeling the traffic loading on such bridges has been the subject of numerous studies. Different assumptions have been used to model multiple-presence loading events, particularly those featuring one truck in each lane. Using a database of weigh-in-motion measurements collected at two European sites for over 1 million trucks, this paper examines the relationships between adjacent vehicles in both lanes in terms of vehicle weights, speeds and inter-vehicle gaps. It is shown that there are various patterns of correlation, some of which are significant for bridge loading. A novel approach to …

Hybrid Zirconium Sol-Gel Thin Films With High Refractive Index, Arnaud Gorin, Robert Copperwhite, Salem Elmaghrum, Colette Mcdonagh, Mohamed Oubaha

Articles

We describe the synthesis of optical quality thin film materials with high refractive index, employing zirconium based hybrid sol-gel precursors. As the zirconium propoxide precursor is unstable in the presence of a strong nucleophilic agent such as water, two synthesis routes have been performed employing a chelating agent and an organosilane precursor to avoid the formation of any undesired ZrO2 agglomerates, leading to organo-zirconate complexes and silicato-zirconate copolymers, respectively. The prepared hybrid sol-gel materials were deposited by spin-coating to form a transparent thin film on silicon substrates, and heat treated at 100 °C for the final stabilisation of the layer. …

Preventing The Unnecessary Entry Of Children Into Foster Care, Vivek Sankaran

Articles

A young mother of three endures abuse at the hands of the children's father. Her children repeatedly witness the violence in their home and describe it to a school teacher, who in turn places a call to Child Protective Services (CPS). A CPS investigator arrives at the home the next morning with a plethora of questions for the mother and her children. Have the children been hit? Did they observe the beatings? What steps has their mother taken to protect them? An adversarial conversation ensues. Unsatisfactory answers may lead to tragic consequences-the removal of the children from their home.

A Response To The Durham Statement Two Years Later, Margaret A. Leary

Articles

This response to The Durham Statement Two Years Later, published in the Winter 2011 issue of Law Library Journal, addresses that article's call for an end to print publication of law journals and its failure to sufficiently consider the national and international actors and developments that will determine the future of digital libraries.

The Supreme Court And The Push For Transparency In Lower Court Appointments In Japan, Daniel H. Foote

Articles

The theme of this symposium issue is ―Decision Making on the Japanese Supreme Court.‖ From that title, readers understandably might assume the focus is squarely on decisions in judicial cases. Yet, as Lawrence Repeta observes in his Article for this issue, the Japanese Supreme Court bears responsibility for another major category of decision making: judicial administration.1 One vitally important aspect of judicial administration for which the Supreme Court bears primary responsibility is the selection of lower court judges, together with personnel management of judges (including decisions on promotions and transfers, which are a standard element of Japan’s career judiciary).2 The …

The Once And Future Equal Protection Doctrine?, Mario L. Barnes, Erwin Chemerinsky

Articles

This Essay is the third in a series of pieces assessing Equal Protection Doctrine and jurisprudence. Here, we endeavor to do two things: (1) to utilize constitutional structure, text, and history to interrogate the concept of equality protected under the Fourteenth Amendment; and (2) to critique the Supreme Court's present approach to adjudicating constitutional discrimination claims. With regard to the meaning of equality, we assert that if the text of the Reconstruction Amendments and the stated goals of Reconstruction are used to inform constitutional analysis, then equality should be understood as a substantive rather than formalist concept. Reconstruction, however, was …

The History Of Intellectual Property Taxation: Promoting Innovations And Other Intellectual Property Goals, Xuan-Thao Nguyen, Jeffrey A. Maine

Articles

No abstract provided.

Fame Law: Requiring Proof Of National Fame In Trademark Law, Xuan-Thao Nguyen

Articles

The public has always been infatuated with fame. Trademark law likewise has a long history of infatuation with fame. Protecting the fame embodied in a trademark against dilutive use by others has not been easy. The difficulty stems from the wording of the statute and judicial failure to understand the “fame” requirement. The fundamental question centers on what level of fame is required for the property-like protection against subsequent uses that dilute the famous trademark. This Article argues for national fame to be the requisite requirement for property-like anti-dilution protection under trademark law. The Article recommends that the proof of …

The China We Hardly Know: Revealing The New China’S Intellectual Property Regime, Xuan-Thao Nguyen

Articles

The long-held and virtually unquestioned view about China from the United States and other Western nations is that China has a total disregard for intellectual property rights. Recent empirical data and translated Chinese judicial decisions, however, offer a startling new picture of China that directly contradicts the dominant negative view of China’s approach to intellectual property rights. Specifically, quantitative studies of recent Chinese patent, copyright, and trademark infringements cases reveal that China has become a litigious society and that there are more intellectual property litigation cases in China than in the United States. Chinese intellectual property owners are not hesitant …

The Lavender Letter: Applying The Law Of Adultery To Same-Sex Couples And Same-Sex Conduct, Peter Nicolas

Articles

In this Article, I explore the division in the courts over the question of whether same-sex sexual conduct constitutes adultery in four contexts: (1) criminal adultery prosecutions, (2) fault-based divorce actions, (3) civil tort actions for interference with the marital relationship, and (4) murder cases raising a provocation defense based on a spouse's act of adultery.

In so doing, I arrive at the following conclusions. First, as illustrated in Part I, there is a significant overlap between states that recognize same-sex marriage and states where adulterous conduct is legally relevant, making this more than an interesting theoretical exercise. Second, Part …

Best Practices For Hiring And Retaining A Diverse Law Faculty, Kellye Y, Testy

Articles

As with all institutions, the history, character, identity, and accomplishments of each law school are the direct result of its people and their acts. For that simple reason, diversity is critical; it goes to the very core of what the institution is and what it does. With legal institutions, in particular, diversity plays a critical role in shaping the perception of the institution held by persons outside of it. In order for our system of law to function as the bedrock of our democratic society that it aims to be, legal institutions must be perceived as fair and just. If …

Tax Lawyers, Tax Defiance, And The Ethics Of Casual Conversation,, Michael Hatfield

Articles

This essay is to help tax lawyers decide how to handle casual conversations centered on denying, defying, or destroying the tax system. One option is to walk away, ending the conversation and silencing the dialogue. The next option is to engage. I want to persuade tax lawyers that they should usually engage in the conversation. I try to do this in Part III.

There are two kinds of legal ethics essays, and one must choose which kind to write, and it is useful to the reader to know upfront which kind the author chose to write. One kind begins with …

A Special Rule For Compound Protection For Dna-Sequences Impact Of The Ecj "Monsanto" Decision On Patent Practice, Jan B. Krauss, Toshiko Takenaka

Articles

This article will analyze the Monsanto decision, and criticize the European Court of Justice's interpretation of Article 9 as being incomplete, in particular for failing to take account of all articles and recitals in the Biotech Directive relating to the scope of protection. It will argue that applying the concept of a function-limited protection is unnecessary if a claim directed to an isolated DNA sequence is properly interpreted. It will also discuss the possible impact not only on the protection scope but also on the patentability of gene patents.

Surviving (And Thriving) In The First Year Of Trial Practice, Maureen A. Howard

Articles

The substance and procedure of trial practice may vary across different law firms and agencies, but there are certain challenges that all first-year trial lawyers face when starting out. No matter how brilliant and capable a newly minted attorney may be, there are some lessons more indelibly learned on the job than in law school; while these lessons are undoubtedly valuable, they can be painful and embarrassing. Although reading about the possible pitfalls of the first year of trial practice is not as educational as walking through the fire oneself, I have collected over the years a few tips and …

Effective Pre-Trial Motions: Persuading The Judge, Maureen A. Howard

Articles

Victories won in pre-trial motions can significantly affect the direction and outcome of a trial. For this reason, successful trial lawyers prepare for motions with the same thoroughness that they employ for the trial itself. Arguing a motion to a trial judge, however, is different from arguing your case to a jury; to be effective, an advocate needs to be mindful of the difference.

Judges generally resist what they perceive as emotional manipulation, theatrics, or excessive rhetoric. Many judges expect lawyers to cleanly and succinctly argue the facts and the law without employing any appeal to emotion. That being said, …

The Boundaries Of Privacy Harm, M. Ryan Calo

Articles

Just as a burn is an injury caused by heat, so is privacy harm a unique injury with specific boundaries and characteristics. This Essay describes privacy harm as falling into two related categories. The subjective category of privacy harm is the perception of unwanted observation. This category describes unwelcome mental states—anxiety, embarrassment, fear—that stem from the belief that one is being watched or monitored. Examples of subjective privacy harms include everything from a landlord eavesdropping on his tenants to generalized government surveillance.

The objective category of privacy harm is the unanticipated or coerced use of information concerning a person against …

Getting The "Story" Out: Teaching Admiralty At The University Of Washington, Craig H. Allen

Articles

I count myself fortunate indeed to be a law teacher and to have the privilege of teaching admiralty to the next generation of attorneys. My good fortune is compounded by the fact that I teach admiralty (and several other maritime law courses) at the University of Washington, a major research university with a complementary graduate level School of Marine Affairs. There is no finer venue for studying maritime law than the state of Washington. By any measure, Washington is among the most “marine” and most trade-dependent states in the nation, and it has long been home to a distinguished maritime …

Post-Racial Proxies: Resurgent State And Local Anti-"Alien" Laws And Unity-Rebuilding Frames For Antidiscrimination Values, Mary D. Fan

Articles

Though unauthorized migration into the United States has diminished substantially since 2007, anti-“illegal alien” state and local laws and furor are flaring again. While one of the biggest worries regarding such “anti-alien” laws is the risk of racialized harm, courts invalidating overreaching statutes are relying on structural or procedural grounds, such as preemption and due process doctrines. [PARA] This Article examines how these political and legal trends point to how proxies are used in a post-racial era to dance around race, in constructive, national unity-rebuilding as well as divisive, inflammatory ways. Anti-alien legislation is a proxy way to vent resurgent …

The Aftermath Of Stanford V. Roche: Which Law Of Assignments Governs?, Sean M. O'Connor

Articles

The discovery and commercialization of biotechnology innovations often rely on collaborations between universities and for-profit firms. In the United States, the federal government funds much of university life sciences research and, under the Bayh-Dole Act, has some rights to research arising from that funding.

Two important strands of invention ownership issues in this web of collaboration arose under litigation that culminated in the recent United States Supreme Court decision Board of Trustees of Leland Stanford Junior University v. Roche Molecular Systems, Inc. (“Stanford v. Roche” or “Stanford”). The first is the question of whether Bayh-Dole …

Stranger Than Fiction: An "Inside" Look At Environmental Liability And Defense Strategy In The Deepwater Horizon Aftermath, William H. Rodgers, Jr., Jason Derosa, Sarah Reyneveld

Articles

The Deepwater Horizon oil spill of April 20, 2010 initiated an environmental disaster that presented attorneys on both sides of the legal action with monumental challenges. Using the satirical format of a memo written by the corporate defense counsel to BP America four days after the spill began, this article investigates BP’s potential liability and strategic defense positions available in criminal and civil proceedings. Major federal environmental laws, including the Oil Pollution Act, the Clean Water Act and major wildlife protection statutes, are implicated by the Spill. The memo provides a clear picture of the existing opportunities for a responsible …

The Environmental Laws Of The 1970s: They Looked Good On Paper, William H. Rodgers, Jr.

Articles

This article looks at the "top ten" environmental laws enacted in the 1970s, including the Clean Air Act, the Endangered Species Act, the National Environmental Policy Act, and the Resource Conservation and Recovery Act. It asks: What were the pin-up qualities that made these laws look good on paper? What were the features sponsors bragged about or critics deplored? How were they understood and described at the time of legislative birth? What was thought to be new, different, and better?

We know some of these things about all of these laws. I’ll exercise editorial judgment and declare four common features …

Revising Harmless Error: Making Innocence Relevant To Direct Appeals, Helen A. Anderson

Articles

In most jurisdictions, convicted defendants have the right to an appeal at public expense, and to the assistance of counsel with that appeal. But the direct appeal is almost never concerned with actual innocence. On direct appeal, courts will look at claims of trial error, and evaluate those claims and their "harmlessness" based only on the trial record. Thus, the chances of a reversal on direct appeal bear no relation to the chances that the wrong person has been convicted.

While the current appeal system may encourage proper trial procedures, it does not provide a check against wrongful conviction. The …