Digital Commons Network^™

A Theory Of Claim Interpretation, Craig Allen Nard

Faculty Publications

This article explores the proper scope of judicial power in patent law by focusing on the Federal Circuit's theories of claim interpretation. A study of the court's claim interpretation jurisprudence reveals two schools of interpretation. I characterize these approaches as (1) hypertextualism, which is the predominant interpretative theory; and (2) pragmatic textualism, which is gradually asserting itself. The hypertextualist judge has an expansive view of judicial power, characterizing claim interpretation as a question of law subject to de novo review. This highly formalistic approach stresses textual fidelity and internal textual coherence, but eschews extrinsic evidence as an interpretive tool, portraying …

Antitrust Immunity, The First Amendment & Settlements: Defining The Boundaries Of The Right To Petition, Raymond Shih Ray Ku

Faculty Publications

Specifically, this Article examines whether settlement agreements and consent decrees resulting from what would otherwise be immunized litigation are protected from antitrust scrutiny and liability under Noerr. In order to conduct this analysis, this Article develops a methodology for determining immunity by focusing the immunity examination upon the means used to petition government and the source of the alleged injuries. Ultimately, private conduct is immune from antitrust scrutiny when it represents a valid attempt to persuade an independent governmental decision-maker in an effort to solicit government action, and the alleged injuries result from that persuasive effort. The validity of any …

Expert Qualifications: Traps For The Unwary, Paul C. Giannelli

Faculty Publications

No abstract provided.

More Sorry Than Safe: Assessing The Precautionary Principle And The Proposed International Biosafety Protocol, Jonathan H. Adler

Faculty Publications

Part I of this paper provides a brief overview of the development of biotechnology, its regulation and its use, with a particular emphasis on agricultural biotechnology. Part II outlines the United Nations Convention on Biological Diversity, which provides an international legal framework for a biosafety protocol and summarizes the results of recent protocol negotiations, such as those conducted in Cartagena, Colombia in February 1999, which continued in Montreal in January 2000. Part III explains why the proposed protocol embodies a variant of the precautionary principle and why such policies may do more harm than good. This paper concludes with some …

News Flash: The Income Tax Remains Constitutional, Erik M. Jensen

Faculty Publications

No abstract provided.

Y2k And The Income Tax, Erik M. Jensen

Faculty Publications

No abstract provided.

Office Rent Determinants During Market Decline And Recovery, Barrett A. Slade

Faculty Publications

This article empirically examines office rent determinants in distinct periods of a market cycle. The study uses a dataset of office properties located in a large metropolitan area and spanning a six-year period. During this period, office rents experienced a significant decline and recovery. A time-varying parameter rent index identifies three distinct periods of the cycle: decline, trough and recovery. Tests of structural change conclude that market participants value the determinants of office rents differently during the periods. A microexamination of each rent determinant over the periods of the market cycle provides a greater understanding of how rents vary over …

The Pathology Of Property Norms: Living Within Nature's Boundaries, Lynda L. Butler

Faculty Publications

No abstract provided.

Book Review Of Private Law And Social Inequality In The Industrial Age, Michael Ashley Stein

Faculty Publications

No abstract provided.

On The Evolution Of The Canonical Dissent, Anita S. Krishnakumar

Faculty Publications

Legal theorists increasingly have come to recognize and study the existence of a constitutional canon composed of highly authoritative legal texts that command special reverence in the law. Among these highly authoritative texts are a series of dissenting opinions—e.g., Justice Holmes's in Lochner v. New York, and Justice Harlan's in Plessy v. Ferguson—that ironically are more famous than the majority opinions in most other cases. This Article examines the evolution of the dissenting canon, seeking to explain both the methods by which various dissenting opinions became canonized and the motivating factors behind these canonizations.

Specifically, the Article argues that the …

Rich Kids, Poor Kids, And The Single-Sex Education Debate, Rosemary C. Salomone

Faculty Publications

(Excerpt)

Over the past decade, the subject of publicly supported, single-sex education has generated considerable debate in legal and policy circles. Since 1996, much of that debate has centered around the Supreme Court's decision in the Virginia Military Institute case and how that case intersects with Title IX of the Education Amendments of 1972. In VMI, Justice Ginsburg, speaking for the Court, stated that gender classifications must have "an exceedingly persuasive justification" in order to pass muster under the Fourteenth Amendment equal protection clause. That decision has become a key factor in recent efforts by school districts to establish …

Prosecutorial Discretion And Prosecution Guidelines: A Case Study In Controlling Federalization, Michael A. Simons

Faculty Publications

In this Article Michael Simons examines the ways in which the federalization of crime can be controlled. Simons argues that prosecutorial discretion is the most important variable in the federalization process and that controlling prosecutorial discretion is the key to controlling federalization. He presents the Child Support Recovery Act as a model for how prosecution guidelines for federal criminal statutes can provide such control Federalization of criminal child support enforcement has been successful because federal prosecutors have exercised discretion in a manner consistent with the concerns expressed by the bench and the academy about federalization. Simons concludes by exploring how …

The World Trade Constitution, John O. Mcginnis, Mark L. Movsesian

Faculty Publications

Conventional wisdom holds that the World Trade Organization (WTO) necessarily poses a threat to sovereignty and representative government within its member nations. Professors McGinnis and Movsesian refute this view. They argue that the WTO can be understood as a constitutive structure that, by reducing the power of protectionist interest groups, can simultaneously promote international trade and domestic democracy. Indeed, in promoting both free trade and accountable government, the WTO reflects many of the insights that inform our own Madisonian Constitution. Professors McGinnis and Movsesian reject recent proposals to grant the WTO regulatory authority, endorsing instead the WTO's limited adjudicative power …

Exercising The Right To Public Accommodations: The Debate Over Single-Sex Health Clubs, Miriam A. Cherry

Faculty Publications

(Excerpt)

Recently, the debate over single-sex health clubs gained national attention when a patent attorney, James Foster, sued for admission to Healthworks, a Massachusetts all-women's health club. One day in 1996, Foster entered the club, which was located close to his Boston condominium, and asked for a tour and an application for membership. The club employees, however, refused him a tour, informing him that Healthworks did not admit men. Shortly thereafter, Foster filed a discrimination claim with the Massachusetts Commission Against Discrimination contending that Healthworks had violated the Massachusetts public accommodations statute. He won at the administrative hearing, and Healthworks …

"Trapped" In Sing Sing: Transgendered Prisoners Caught In The Gender Binarism, Darren Rosenblum

Faculty Publications

(Excerpt)

A transgendered woman, who has undergone extensive hormonal therapy and cosmetic surgery, is convicted and imprisoned. Because she still has a penis, albeit a nonfunctioning one, prison officials categorize her as a male, and place her in a men's prison. "You were born a boy, and you're going to stay a boy," the prison doctor says, rejecting continuation of her long-term estrogen treatment. Her body begins to regain the masculinity she had largely escaped. Bruised by the changes, her body no longer feels like her own, but one imposed on her by the criminal justice system. Her femininity stands …

Ninth Amendment Adjudication: An Alternative To Substantive Due Process Analysis Of Personal Autonomy Rights, Mark C. Niles

Faculty Publications

Notwithstanding decades of significant legal scholarship focusing on the Ninth Amendment to the U.S. Constitution, a large portion of the practicing legal community, and even a substantial percentage of legal scholars, are unfamiliar with the provision. The primary reason for this phenomenon is the striking absence of an identifiable body of Ninth Amendment adjudication. In this Article, Mark Niles focuses on this phenomenon and endeavors to develop an interpretative theory of the amendment upon which an adjudicative role can be founded.

In Part I of this Article, Niles outlines the traditional judicial treatment of the Ninth Amendment, or more precisely, …

American Lawyers And International Competence, Charlotte Ku, Christopher J. Borgen

Faculty Publications

Just over ten years ago, Germans tore down a wall that divided their country and the whole of Europe. Stepping through the hole in the Berlin Wall, they took the first steps towards the reunification of West and East Germany and the end of the Cold War. Today another wall is being torn down—that between purely domestic law and international law. Companies are engaged in international trade at ever increasing rates. Environmental degradation has proved to be a global problem that cannot be solved with uncoordinated local measures. Individuals worldwide are pressing their governments for the recognition of a common …

Special Division Agonistes, John Q. Barrett

Faculty Publications

When the independent counsel law sank, the casualties included a special "division" of the United States Court of Appeals for the District of Columbia Circuit. This division was the special court that Congress had created "for the purpose of appointing independent counsels." The now-expired 1994 independent counsel statute had, like its three predecessors, directed the Chief Justice of the United States to appoint three judges from the Supreme Court and/or the federal Courts of Appeals to serve on the special court for two-year terms. This independent counsel court, which was located for administrative purposes in the United States Court of …

Regret And Contract "Science", Peter A. Alces

Faculty Publications

No abstract provided.

The Special Constitutional Structure Of The Federal Impeachment Process, Michael J. Gerhardt

Faculty Publications

No abstract provided.

The Historical And Constitutional Significance Of The Impeachment And Trial Of President Clinton, Michael J. Gerhardt

Faculty Publications

No abstract provided.

State Immunity, Political Accountability, And Alden V. Maine, William P. Marshall, Jason S. Cowart

Faculty Publications

No abstract provided.

Geographic Alliance Of Iowa. Lesson Plans, Kay E. Weller, Nancy Howe-Ford

Faculty Publications

This collection of five lesson plans in geography can be adapted for use with K-12 students. Each lesson plan explains the lesson and provides basic instructions. The lesson plans are titled: "Teaching Geography Using Literature in K-University Classrooms" (Kay Weller); "Geography and a Mystery Novel" (Kay Weller); "Understanding Latitude and Longitude" (Kay Weller); "Mississippi River Cruise" (Kay Weller); and "Create a Magazine Project" (Nancy Howe-Ford). (BT)

Reinvigorating Chapter 11: The Case For Reinstating The Stock-For-Debt Exception In Bankruptcy, Michelle A. Cecil

Faculty Publications

This Article suggests that such a proposal will harmonize the bankruptcy policy of rehabilitating financially distressed corporations with the tax policy of ensuring that true economic income is subject to federal income taxation.27 Parts II and III of this Article will trace the common law evolution of the stock-for-debt exception and its statutory codification in 1980, with particular emphasis on the stated policy justifications for the exception. Part IV will then examine the history of the repeal of the stock-for-debt exception, demonstrating that the repeal was the result of hasty political maneuvering rather than reasoned legislative decision-making. In Part V, …

Silencing John Doe: Defamation And Discourse In Cyberspace, Lyrissa Lidsky

Faculty Publications

John Doe has become a popular defamation defendant as corporations and their officers bring defamation suits for statements made about them in Internet discussion fora. These new suits are not even arguably about recovering money damages but instead are brought for symbolic reasons — some worthy, some not so worthy. If the only consequence of these suits were that Internet users were held accountable for their speech, the suits would be an unalloyed good. However, these suits threaten to suppress legitimate criticism along with intentional and reckless falsehoods, and existing First Amendment law doctrines are not responsive to the threat …

Two Degrees Of Speech Protection: Free Speech Through The Prism Of Agricultural Disparagement Laws, Howard M. Wasserman

Faculty Publications

In the wake of a 1989 national television broadcast reporting the alleged cancer risk of a chemical applied to apples on trees, many states passed agricultural product disparagement (APD) statutes. These statutes grant civil causes of action to the growers and sellers of perishable food products, against anyone who speaks negatively or disparagingly, without basis in scientific evidence, about the product's safety. In this Article, Howard M Wasserman explores the interplay between the APD statutes and the First Amendment. First, Mr. Wasserman discusses the three categories of restrictions on the freedom of speech, focusing primarily on private civil tort actions …

The "Tutor" In Rabbinic Parables And In Paul, Robert M. Johnston

Faculty Publications

No abstract provided.

A Generation Spent Studying The U.S. Courts Of Appeals: A Chronology, Thomas E. Baker

Faculty Publications

No abstract provided.

Cultural Values And Happiness, Timothy B. Smith

Faculty Publications

Csikszentmihalyi (1999) has reminded us that social scientists cannot shrink from challenging the validity of our most cherished values, including the fundamental nature of happiness. He cites research affirming that material wealth does not correlate with happiness and then presents data correlating happiness with the experience of flow. However, in making this leap Csikszentmihalyi confuses correlation with causation. Because losing oneself in a project, relationship, or dream is followed by a very positive condition does not mean that the experience itself caused happiness. It is equally likely that losing one self is the causative factor. In looking at his data …

Ethnic Representation In A Sample Of The Literature Of Applied Psychology, Leslie Case, Timothy B. Smith

Faculty Publications

A number of authors have raised concerns over the external validity of psychological research. This study examined the extent to which empirical articles include human participants from diverse ethnic backgrounds. Articles published over a 5-year period in 14 selected journals representing 3 applied subdisciplines of psychology were examined. Of the 2,536 articles coded, only 61% indicated the ethnicity of the participants. For those articles, the ethnic compositions approximated U.S. Census estimates, with the exception of an over representation of African Americans and an under representation of Hispanic Americans. The results imply that although the field is apparently adequately recruiting English …