Digital Commons Network^™

Prophetic Patents, Janet Freilich

Faculty Scholarship

In most contexts, making up data is forbidden - considered fraudulent or even immoral. Not so in patents. Patents often contain experimental data and it is perfectly acceptable for these experiments to be entirely fictional. These so-called "prophetic examples" are not only explicitly permitted by both the Patent and Trademark Office and federal courts, but are considered almost equivalent to factual data in patent doctrine. Though prophetic examples are thought to be common, there are no studies of these experiments, no explanation for why fictional data are allowed in patents, and no evaluation of the practice.

Here, I provide the …

The Case Against Expanding Defamation Law, Yonathan A. Arbel, Murat C. Mungan

Faculty Scholarship

It is considered axiomatic that defamation law protects reputation. This proposition—commonsensical, pervasive, and influential—is faulty. Underlying this fallacy is the failure to appreciate audience effects: the interaction between defamation law and members of the audience.

Defamation law seeks to affect the behavior of speakers by making them bear a cost for spreading untruthful information. Invariably, however, the law will also affect members of the audience, as statements made in a highly regulated environment tend to appear more reliable than statements made without accountability. Strict defamation law would tend to increase the perceived reliability of statements, which in some cases can …

A Natural Right To Copy, Glynn Lunney

Faculty Scholarship

In this symposium, we gather to celebrate the work of Wendy Gordon. In this essay, I revisit her article, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property. In the article, Professor Gordon first used the "no-harm" principle of John Locke to justify copyright as natural right and then used his “enough-and-as-good” proviso to limit that right. Her second step turned natural rights approaches to copyright on its head. Through it, she showed that even if we accept copyright as natural right, that acceptance does not necessarily lead to a copyright of undue breadth …

A Longitudinal Examination Of African American Adolescent Females Detained For Status Offense, Dexter R. Voisin

Faculty Scholarship

Introduction: Behaviors like truancy, running away, curfew violation, and alcohol possession fall under the status offense category and can have serious consequences for adolescents. The Juvenile Justice and Delinquency and Prevention Act prohibited detaining status offenders. We explored the degree to which African American adolescent girls were being detained for status offenses and the connections to their behavioral health risks and re-confinement. Methods: 188 African American girls (aged 13–17), recruited from detention facilities, were surveyed at baseline and 3-month follow-ups. Logistic regression models estimated the likelihood of longitudinal re-confinement, controlling for sexual and behavioral health risk factors. Results: One third …

Learned Hand And The Objective Theory Of Contract Interpretation, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

The Halo Mass Function Of Late-Type Galaxies From H I Kinematics, Pengfei Li, Stacy S. Mcgaugh

Faculty Scholarship

We present an empirical method to measure the halo mass function (HMF) of galaxies. We determine the relation between the H i line width from single-dish observations and the dark matter halo mass (M 200) inferred from rotation-curve fits in the Spitzer Photometry and Accurate Rotation Curves (SPARC) database, then we apply this relation to galaxies from the H i Parkes All Sky Survey (HIPASS) to derive the HMF. This empirical HMF is well fit by a Schechter function, and matches that expected in the Λ Cold Dark Matter (ΛCDM) model over the range 1010.5 < M 200 < 1012 M o˙. More massive halos must be poor in neutral gas to maintain consistency with the power law predicted by ΛCDM. We detect no discrepancy at low masses. The lowest halo mass probed by HIPASS, however, is just greater than the mass scale where the Local Group missing satellite problem sets in. The integrated mass density associated with the dark matter halos of H i-detected galaxies sums to Ωm,gal ≈ 0.03 over the probed mass range.

Understanding The Role Of Complexation In The Charge-Transfer Kinetics Of The Cu2+ + E ↔ Cu1+ Redox Reaction In Ethaline Deep Eutectic Solvent, Dai Shen, Rohan Akolkar

Faculty Scholarship

Deep eutectic solvent (DES) based electrolytes are gaining attention for electrochemical applications. As such, knowledge of the charge transfer kinetics in DES and its dependence on electrolyte composition and temperature is important. Using Cu2+ + e ↔ Cu1+ as a model system, we demonstrate that metal redox reactions in chloride-containing DES media suffer from sluggish charge transfer kinetics. The exchange current density, i0, displayed a peculiar inverse relationship with the bulk chloride concentration, [Cl−]b. The i0 decreased from 7.9 to 3.0 mA/cm2 when [Cl−]b increased from 2.8 to 4.6 M at 30°C. Such dependence is shown to originate from Cl− …

Right Of Repair In The Digital Economy, Jessica Silbey

Faculty Scholarship

We have long understood that people have a right to repair what they own, but this right to repair is under siege. A new article by Leah Chan Grinvald and Ofer Tur-Sinai explains how IP rules are inhibiting these repair rights and why laws protecting the right to repair are necessary and justifiable. As I explain below, authors Grinvald and Tur-Sinai describe the growing right to repair movement pushing for legislation to protect the right to repair and show how intellectual property laws should facilitate not interfere with consumers rights to repair what they own. The authors also propose a …

Degradation Mechanism Detection In Photovoltaic Backsheets By Fully Convolutional Neural Network, Laura S. Bruckman

Faculty Scholarship

Materials and devices age with time. Material aging and degradation has important implications for lifetime performance of materials and systems. While consensus exists that materials should be studied and designed for degradation, materials inspection during operation is typically performed manually by technicians. The manual inspection makes studies prone to errors and uncertainties due to human subjectivity. In this work, we focus on automating the process of degradation mechanism detection through the use of a fully convolutional deep neural network architecture (F-CNN). We demonstrate that F-CNN architecture allows for automated inspection of cracks in polymer backsheets from photovoltaic (PV) modules. The …

Lt. Col. Vindman Is A Patriot, Joshua E. Kastenberg

Faculty Scholarship

Op-ed: Kastenberg discusses how it is the duty of a commissioned officer to report activity they consider legally questionable and it is within their duty to testify before Congress.

The Imprint Of Spiral Arms On The Galactic Rotation Curve, Stacy S. Mcgaugh

Faculty Scholarship

We discuss a model for the Milky Way obtained by fitting the observed terminal velocities with the radial acceleration relation. The resulting stellar surface density profile departs from a smooth exponential disk, having bumps and wiggles that correspond to massive spiral arms. These features are used to estimate the term for the logarithmic density gradient in the Jeans equation, which turn out to have exactly the right location and amplitude to reconcile the apparent discrepancy between the stellar rotation curve and that of the interstellar gas. This model also predicts a gradually declining rotation curve outside the solar circle with …

Privacy As Pretext, Susan Hazeldean

Faculty Scholarship

No abstract provided.

Data-Informed Duties In Ai Development, Frank Pasquale

Faculty Scholarship

No abstract provided.

Why Robert Mueller’S Appointment As Special Counsel Was Unlawful, Steven Calabresi, Gary S. Lawson

Faculty Scholarship

Since 1999, when the independent counsel provisions of the Ethics in Government Act expired, the Department of Justice (“DOJ”) has had in place regulations providing for the appointment of Special Counsels who possess “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” Appointments under these regulations, such as the May 17,2017 appointment of Robert S. Mueller to investigate the Trump campaign, are patently unlawful, for three distinct reasons.
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/="/">First, all federal offices must be “established by Law,” and there is no statute authorizing such an office in the DOJ. …

The Legal Design For Parenting Concussion Risk, Katharine B. Silbaugh

Faculty Scholarship

This Article addresses a question as yet unexplored in the emerging concussion risk literature: how does the statutorily assigned parental role in concussion risk management conceptualize the legal significance of the parent, and does it align with other areas of law that authorize and limit parental risk decision-making? Parents are the centerpiece of the “Lystedt” youth concussion legislation in all fifty states, and yet the extensive legal literature about that legislation contains no discussion of parents as legal actors and makes no effort to situate their statutory role into the larger legal framework of parental authority. This Article considers the …

Contractual Communication, Lawrence B. Solum

Faculty Scholarship

In Pseudo-Contract and Shared Meaning Analysis, Professors Robin Bradley Kar and Margaret Jane Radin develop an important theory of the nature of contract that draws on Paul Grice’s influential theory of meaning. That theory has significant implications for contract doctrine, in particular for questions about the enforceability of so-called “contracts of adhesion” in particular and for “boilerplate” in general. But at the most fundamental level, Kar and Radin’s work is about the nature of contractual communication. They answer the question, “How do contracts mean?,” by proposing a theoretical structure, which they name “Shared Meaning Analysis.” This Essay focuses on …

Data First, Tax Next: How Fiji’S Technology Can Improve New Zealand’S ‘Netflix Tax’ (Part 4), Richard Thompson Ainsworth

Faculty Scholarship

This is the fourth paper examining the recent amendments to the New Zealand Goods and Services Tax (GST); amendments that are collectively known as the Netflix Tax. These papers assess the effectiveness of the Netflix provisions, and how they could be enhanced if New Zealand adopted the technology and vision of Fiji’s VAT Monitoring System (VMS). The Netflix provisions were effective, July 1, 2017.

This final paper considers: (a) the treatment of domestic agents when they are used by remote service providers to facilitate sales to New Zealand customers; (b) how New Zealand intends to respond to resident consumers who …

The Second International Conference On Climate, Nature, And Society: Selected Conference Excerpts, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Nutrient Status And Perceptions Of Energy And Macronutrient Intake In A Group Of Collegiate Female Lacrosse Athletes, Andrew R. Jagim, Hannah Zabriskie, Brad Currier, Patrick S. Harty, Richard Stecker, Chad M. Kerksick

Faculty Scholarship

Background

The purpose of this study was to compare nutritional intakes against recommended values as well as between the perceived intake and needs of female lacrosse players.

Methods

Twenty female NCAA Division II lacrosse players (20.0 ± 1.7 yrs., 169.7 ± 6.4 cm; 69.9 ± 10.7 kg; 27.5 ± 3.3% fat) completed a four-day monitoring period during in-season. Athletes were outfitted with an activity monitor over four consecutive days and completed four-day food records to assess total daily energy expenditure (TDEE) and dietary intake. Body composition was assessed and used to calculate recommended dietary intakes. Actual intake was self-reported using …

Employer Losses And Deferred Compensation, David I. Walker

Faculty Scholarship

Most large public companies offer their executives the opportunity to defer the receipt and taxation of their salary or other current compensation until retirement or some other future date, and equity compensation, which also entails deferral of pay and taxation, constitutes a large fraction of the typical executive pay package. Conventional wisdom holds that employer net operating losses (NOLs) improve the joint economics of deferred and equity compensation (henceforth together "deferred compensation") for the parties. However, empirical studies provide little evidence of an association between employer NOLs and deferred compensation use. This paper focuses on two potential explanations for this …

The Virtue Of Vulnerability: Mindfulness And Well-Being In Law Schools And The Legal Profession, Nathalie Martin

Faculty Scholarship

This article examines the role of vulnerability in transforming individual relationships, particularly the attorney-client relationship. In this essay, Martin argues that broadening our expressions can improve our client relations and decrease the likelihood that when that inevitable mistake occurs, we will be sued for it. Also, based upon virtue ethics, that practicing vulnerability is also virtuous and thus worthwhile in and of itself.

This essay starts by describing the traits people look for in lawyers as well as evidence that clients often feel that their lawyers are less than human. Then examines how legal education contributes to this problem by …

Dr. Jekyll & Mr. Holmes: A Tale Of Two Testaments, Stephen R. Alton

Faculty Scholarship

Author's Note: This Article takes the form of an epistolary exchange across the centuries, comparing and contrasting two noted wills in Victorian literature. To preserve verisimilitude, the author lets these letters and emails speak for themselves, without any formal introduction, just as would have occurred in Victorian epistolary fiction. It is the author's hope that the relevant testaments and the legal issues they present will make themselves clear as these exchanges proceed. Any reader desiring a more formal introduction to this Article is directed to the first email (below) written by the author to Mr. Utterson and Mr. Holmes; this …

Online Legal Document Providers And The Public Interest: Using A Certification Approach To Balance Access To Justice And Public Protection, Susan Saab Fortney

Faculty Scholarship

The Internet and electronic communications have revolutionized how consumers obtain legal information and assistance. The availability of legal forms and services has developed at lightning speed and countless consumers are using these forms, rather than consulting attorneys. At the same time, many regulators of the legal profession appear to be frozen in time. Some take the position that the provision of interactive forms amounts to the unauthorized practice of law and others question arrangements that appear to involve the sharing of legal fees with non-lawyers. Even for those interested in regulating the provision of on-line services, one complication to doing …

The State Of Exactions, Timothy M. Mulvaney

Faculty Scholarship

In Koontz v. St. Johns River Water Management District, the Supreme Court slightly expanded the range of circumstances involving conditional land use permits in which heightened judicial scrutiny is appropriate in a constitutional “exaction” takings case. In crafting a vision of regulators as strategic extortionists of private property interests, though, Koontz prompted many takings observers to predict that the case would provide momentum for a more significant expansion of such scrutiny in takings cases involving land use permit conditions moving forward, and perhaps even an extension into other regulatory contexts, as well.

Five years on, this Article evaluates the extent …

Disguised Patent Policymaking, Saurabh Vishnubhakat

Faculty Scholarship

Patent Office power has grown immensely in this decade, and the agency is wielding its power in predictably troubling ways. Like other agencies, it injects politics into its decisions while relying on technocratic justifications. It also reads grants of authority expansively to aggrandize its power, especially to the detriment of judicial checks on agency action. However, this story of Patent Office ascendancy differs from that of other agencies in two important respects. One is that the U.S. patent system still remains primarily a means for allocating property rights, not a comprehensive regime of industrial regulation. Thus, the Patent Office cannot …

Access To Law Or Access To Lawyers? Master's Programs In The Public Educational Mission Of Law Schools, Mark Burge

Faculty Scholarship

The general decline in juris doctor (“J.D.”) law school applicants and enrollment over the last decade has coincided with the rise of a new breed of law degree. Whether known as a master of jurisprudence, juris master, master of legal studies, or other names, these graduate degrees all have a target audience in common: adult professionals who neither are nor seek to become practicing attorneys. Inside legal academia and among the practicing bar, these degrees have been accompanied by expressed concerns that they detract from the traditional core public mission of law schools—educating lawyers. This Article argues that non-lawyer master’s …

Righting The Ship: What Courts Are Still Getting Wrong About Electronic Discovery, Tanya Pierce

Faculty Scholarship

What happens when law changes but courts and lawyers ignore the changes? On December 1, 2015, amendments to the Federal Rules of Civil Procedure went into effect. One of those amendments includes a sweeping change to Rule 37(e), dealing with the availability of sanctions in federal courts for lost or destroyed electronically stored information (ESI). In the last few years, however, a number of courts have interpreted the amended rule in ways at odds with its plain language and underlying policies, and a surprising number of courts continue to ignore the amended rule altogether. This article examines those trends and …

Data First, Tax Next: How Fiji’S Technology Can Improve New Zealand’S 'Netflix Tax' Part 3 (Electronic Marketplaces), Richard Thompson Ainsworth, Chang Che

Faculty Scholarship

This is the third paper examining the recent amendments to the New Zealand Goods and Services Tax (GST) that are commonly known as the Netflix Tax. A fourth paper will follow.

The importance and complexity of dealing with electronic marketplaces has made an independent paper on electronic marketplaces necessary. Taken together this set of four papers assess the effectiveness of the Netflix provisions, and how they can be enhanced by adopting the technology and vision of Fiji’s VAT Monitoring System (VMS). The Netflix provisions were effective, July 1, 2017.

This paper considers rules that allocate the responsibility for collecting, reporting …

Peace In The Home, Peace In The Nation: Conceptions Of Justice For Rural Women Of Northern Uganda, Jennifer Moore

Faculty Scholarship

UNM International Studies Institute Fall Lecture Series 2019 "Peacemaking In Africa"

Humanizing Work Requirements For Safety Net Programs, Mary Leto Pareja

Faculty Scholarship

This Article explores the political and policy appeal of work requirements for public benefit programs and concludes that inclusion of such requirements can be a reasonable design choice, but not in their current form. This Article’s proposals attempt to humanize these highly controversial work requirements while acknowledging the equity concerns they are designed to address. Drawing on expansive definitions of “work” found in guidance published by the Centers for Medicare and Medicaid (“CMS”) and in various state waiver applications, this Article proposes that work requirements be approved for Medicaid (as well as other benefit programs) only if they encompass various …