Digital Commons Network^™

Brown, Teneille, And Emily Murphy. "Through A Scanner Darkly: Functional Neuroimaging As Evidence Of A Criminal Defendant's Past Mental States, Emily R. Murphy, Teneille R. Brown

Faculty Scholarship

No abstract provided.

Eighth Circuit Trademark Opinions, Kenneth L. Port

Faculty Scholarship

The Eighth Circuit Court of Appeals’ trademark jurisprudence has been truly fair and balanced since the 1946 passage of the Lanham Act. The court has created this fair and balanced jurisprudence by creating firm standards and sticking to them. Although not the most popular circuit in which to find a trademark case, the Eighth Circuit has kept a constant vigil to assure that trademark plaintiffs do not dominate over trademark defendants. This balanced approach to trademark law is consistent with the Minnesota Supreme Court, which recently held that “advertising injury” included trademark infringement, and therefore the defendant’s insurance carrier had …

Annual Survey Of Periodical Literature, Nancy Ver Steegh

Faculty Scholarship

The Annual Review of Periodical Literature provides a sampling of law review articles published between November 1, 2008, and October 31, 2009. The survey highlights the variety and depth of family law scholarship produced during the year and calls attention to currently debated "hot topics." Readers are encouraged to read articles of interest in their entirety because the summaries included in the survey are necessarily abbreviated.

Before They Even Start: Hope And Incoming 1ls, Barbara Brunner

Faculty Scholarship

Newly-accepted law school 1Ls often express interest in how they should spend the summer before starting their fall courses in order to be best prepared for success in their first semester. This desire to have a "leg up" on law school success leads those of us teaching first-year courses to think more deeply about what constitutes a "good preparation" for the unique experiences that new law students will face, and what skills are really necessary to increase their possibilities of success, especially in the first semester.

Over the past few years, I have compiled a list of activities which I …

Decriminalizing Border Crossings, Victor C. Romero

Faculty Scholarship

An international border crosser should only be deemed a criminal if the United States government can prove that, with requisite criminal intent, she engaged in an act aside from crossing the border that would constitute a crime. No longer should crossing the border be a strict liability criminal offense. Doing so will restore balance to the civil immigration system, conserve scarce enforcement resources to target truly criminal behavior, enhance our standing abroad, and help heal our racially-polarized discourse on immigration policy.

An Introduction To The Financial Action Task Force And Its 2008 Lawyer Guidance, Laurel S. Terry

Faculty Scholarship

The Financial Action Task Force (FATF) is a thirty-eight-member intergovernmental organization whose mission is to fight money laundering and terrorism financing; the U.S. is a founding member of the FATF. The FATF is best known for its 40 Recommendations, many of which are directed towards various kinds of “gatekeepers” who are in a position to facilitate or inhibit money laundering and terrorism financing. (These were previously known as the 40+9 Recommendations). Lawyers are among those to whom the FATF’s recommendations apply. This article provides the introduction for the Journal of the Professional Lawyer’s Symposium about the application of the FATF …

Fictionalia As Modal Artifacts, Jeffrey C. Goodman

Faculty Scholarship

There is much controversy surrounding the nature of the relation between fictional individuals and possible individuals.  Some have argued that no fictional individual is a possible individual; others have argued that (some) fictional individuals just are (merely) possible individuals.  In this paper, I offer further grounds for believing the theory of fictional individuals defended by Amie Thomasson, viz., Artifactualism, by arguing that her view best allows one to make sense of this puzzling relation.  More specifically, when we realize that the view allows for an identification of merely possible individuals with fictional individuals, we see that the utility, and hence …

International Movement To Deter Corruption: Should China Join?, Paul D. Carrington

Faculty Scholarship

Global concerns over the corruption of weak governments by firms engaged in transnational business are the source of an international movement that emerged in 1997. Special concern is presently directed at the weakness of enforcement of laws enacted in recent times to deter corrupt business practices in international trade that were enacted in response to that movement. One cause of weakness in law enforcement is the failure of China to share actively in those concerns and the efforts to address them. This essay will briefly record steps taken in other nations to address the concerns and the limited effectiveness of …

Foreign Sovereign Immunity And Domestic Officer Suits, Curtis A. Bradley, Jack L. Goldsmith

Faculty Scholarship

Under international law, official-capacity suits brought against a foreign state’s officers are treated as suits against the state itself and thus as subject to the state’s immunity, even in suits alleging human rights abuses. This immunity regime differs from the immunity regime that applies in the United States in suits brought against state and federal officials for violations of federal law. Despite the federal government’s sovereign immunity and the immunity of state governments under Eleventh Amendment jurisprudence, courts often allow suits against federal and state officers for their official actions. This essay attempts to explain why the immunity rules differ …

Korea's Patent Policy And Its Impact On Economic Development: A Model For Emerging Countries?, Jay Erstling

Faculty Scholarship

The purpose of this paper will be to examine Korean patent policy as exemplified by its patent legislation and the activities of Korean Intellectual Property Office (KIPO). Part II will take a brief look at the rationale underpinning Korea's confidence in the power of the patent system to stimulate economic growth. Part III of the paper will look at the Korean Patent Act as an example of strong, comprehensive patent legislation that fully complies with international standards and responds well to the perceived needs of patent applicants. In order to provide a basis of comparison, reference will be made wherever …

Foundations: The Public Domain And Natural Resources Law 1785 - 1960, Richard J. Finkmoore

Faculty Scholarship

No abstract provided.

Do Blind People See Race? Social, Legal, And Theoretical Considerations, Osagie K. Obasogie

Faculty Scholarship

No abstract provided.

It Taxes A Village: The Problem With Routinely Taxing Barter Transactions, Sergio Pareja

Faculty Scholarship

Under current law, all true barter transactions, such as babysitting cooperatives, create taxable income. Although the IRS often fails to catch unreported transactions, lawyers and accountants have an ethical duty to advise clients to report these taxable transactions on their income tax returns. This article proposes that Congress change the law to generally exclude barter transactions from income when they do not rise to the level of being a trade or business of the taxpayer. This simple change to the law will allow communities to work together without worrying about tax disincentives for doing so.

Seeking Educational Self-Determination: Raza Studies For Revolution, Margaret E. Montoya, Marcos Pizarro, Monica Nanez, Ray Chavez, Nadine Bermudez

Faculty Scholarship

This article is a multi-textured effort to explain the educational, social justice work of MAESTR@S, an innovative, organic group of educational activists fighting to address the needs of Latina/o youth. It is unlike anything we have ever written and probably unlike anything you are likely to read in an academic journal such as Equity & Excellence in Education.We do not have a well-defined result that we are reporting to you. Instead, we see ourselves on a quest, with a deep concern about the current educational choices facing most raza youth and their teachers, and a commitment to try to work …

Arizona's Notice Of Claim Statute: Guidance On Clearing This Procedural Hurdle And Suggestions For Its Improvement, Dawinder S. Sidhu

Faculty Scholarship

The Arizona Constitution empowers the legislature to establish rules for how and under what circumstances the State may be sued. Pursuant to this constitutional authority, the Arizona State Legislature enacted Arizona Revised Statutes Section 12-821.01, which requires those with claims against an Arizona public entity or employee to file notice of the claims prior to the initiation of legal action. This procedural prerequisite to initiate a suit may be prudent as a matter of public policy. In practice, however, the state courts have been unable to issue reliable decisions with respect to the statute’s requirements. The state courts’ evolving understanding …

The Future Of The United States Commission On Civil Rights, Dawinder S. Sidhu

Faculty Scholarship

In The Future of the U.S. Commission on Civil Rights, Professors Lisa Crooms and Dawinder Sidhu discuss the potential for expanding the mandate of the Commission. Professor Crooms opens by noting that suggestions to expand the Commission’s mandate to include human rights have been around for decades, and argues that such ideas are still worth adopting. She comments that the Commission would have to engage in extensive fact-finding in order to justify such an expansion. Professor Crooms raises further concerns over manipulation of the appointment process for commissioners, but that such manipulation has not necessarily jeopardized the Commission’s role. Indeed, …

First Korematsu And Now Ashcroft V. Iqbal: The Latest Chapter In The Wartime Supreme Court's Disregard For Claims Of Discrimination, Dawinder S. Sidhu

Faculty Scholarship

This Article is concerned with shedding light on Iqbal. It will argue that this relatively obscure legal opinion may be one of the most infamous and harmful to American jurisprudence and individual rights of this generation. In particular, it will argue that (1) the Iqbal Court misapplied the traditional pleading standards that govern motions to dismiss for failure to state a claim in finding Iqbal’s particular complaint deficient and, in doing so, functionally and needlessly heightened those standards;19 and (2) the Court erred in finding unremarkable Iqbal’s allegations that the government engaged in blanket racial profiling of Muslims and Arabs …

An Introduction To Islamic Law By Wael B. Hallaq, Jennifer Laws

Faculty Scholarship

This is a review of An introduction to Islamic law, by Wael B. Hallaq.

Saving Stare Decisis: Preclusion, Precedent, And Procedural Due Process, Max J. Minzner

Faculty Scholarship

Judgments do not bind nonparties. This core due process constraint on issue preclusion means that courts can only adjudicate questions of fact and law with respect to those individuals appearing in court. However, the operation of stare decisis routinely extinguishes the rights of nonparties without notice or an opportunity to be heard. This Article examines the due process challenge to the operation of precedent. The traditional justifications for applying a due process analysis only to preclusion and not to precedent are inadequate. Instead of excepting stare decisis from the operation of procedural due process, we should see it as meeting …

A Tale Of Election Day 2008: Teaching Storytelling Through Repeated Experiences, Serge A. Martinez, Stefan H. Krieger

Faculty Scholarship

In Part I, we describe our experience supervising our clinic students on Election Day 2008 and our observations of their learning through the repetitive experiences they had representing several clients in rapid succession. In Part II, we discuss cognitive science research into skills learning, including several necessary elements for optimal learning. In Part III, we review existing legal scholarship on teaching storytelling to lawyers and compare it with cognitive science findings. Finally, in Part IV, we apply cognitive science principles to teaching storytelling through experiential learning and describe the necessary elements for creating effective learning situations. We also suggest some …

Stories In Mexico And The United States About The Border: The Rhetoric And The Realities, Gloria Valencia-Weber, Antoinette Sedillo Lopez

Faculty Scholarship

Our goal in this article is to demonstrate how perspective, political agenda, and personal experiences affect how stories about the Mexico-U.S. Border are framed. The framing is shaped by audience and emotional appeal, as well as political agenda. Stories framed and portrayed as personal experiences and stock narratives about a group or country can shape the attitude, experience, and behavior of others. Our discussion will: 1) examine the concept of using word choices and metaphors as devices in storytelling to frame political, economic and social issues, which are meant to evoke certain emotional responses among specific audiences in the immigration …

Double Down-And-Out: The Connection Between Payday Loans And Bankruptcy, Nathalie Martin, Koo Im Tong

Faculty Scholarship

This Article reviews the literature on the debate regarding the causal relationship between filing for bankruptcy and the use of payday loans but does not weigh in on the subject. Rather, it uses these studies, as well as a general discussion of bankruptcy filing and payday loans, as a backdrop for analyzing new data regarding the correlation between bankruptcy filing and the use of payday loans. This Article reports on an empirical study conducted in the state of New Mexico that measures rates of payday loan use among bankruptcy debtors from a large sample of publicly available bankruptcy data. Part …

The Next Great Generation Of American Indian Law Judges, Kevin Washburn

Faculty Scholarship

This short essay, which was the keynote address at a conference of the same title in 2010, argues that the best predictors of good Indian law judging are education, familiarity and experience. People who have been raised believing that there are only two orders of government in the United States are often surprised when they encounter the legal existence of Indian tribes. Most judges become more comfortable with notions of tribal sovereignty after prolonged exposure to cases discussing those principles. Thus, educating all Americans about Indian tribes in primary and secondary education would produce better policy-makers in general and better …

Mr. Pendleton's Rainbows On The Value Of Teaching Abroad, Kate Bloch

Faculty Scholarship

No abstract provided.

Reviving Lenity And Honest Belief At The Boundaries Of Criminal Law, John L. Diamond

Faculty Scholarship

No abstract provided.

The Role Of The Subconscious In Intellectual Property Law, Robin Feldman

Faculty Scholarship

No abstract provided.

Crimes Without Punishment: Violence Against Women In Guatemala, Karen Musalo, Elisabeth Pellegrin, S. Shawn Roberts

Faculty Scholarship

No abstract provided.

Sentencing Reform In California, Aaron J. Rappaport

Faculty Scholarship

No abstract provided.

State Liability, Giuseppe Dari-Mattiacci, Nuno Garoupa, Fernando Gomez-Pomar

Faculty Scholarship

Should states be liable towards individuals for failure to provide justice, good roads, or timely administrative decisions? In this article, we show that state liability can serve three different purposes, none of which implies that the state should be liable in tort, unless other specific conditions are met. One purpose is to provide incentives for state agencies and private individuals to act efficiently. Here, the effectiveness of liability depends on the channelling of incentives down the chain of command to the acting state employee. The second purpose of state liability is to remove incentives for private parties, when these incentives …

Reconciling Fair Use And Trademark Use, Margreth Barrett

Faculty Scholarship

No abstract provided.