Digital Commons Network^™

Nonmajority Opinions And Biconditional Rules, Adam N. Steinman

Faculty Scholarship

In Hughes v. United States, the Supreme Court will revisit a thorny question: how to determine the precedential effect of decisions with no majority opinion. For four decades, the clearest instruction from the Court has been the rule from Marks v. United States: the Court's holding is "the position taken by those Members who concurred in the judgments on the narrowest grounds." The Marks rule raises particular concerns, however, when it is applied to biconditional rules. Biconditionals are distinctive in that they set a standard that dictates both success and failure for a given issue. More formulaically, they combine an …

The Network For Justice: Pursuing A Latinx Civil Rights Agenda, Luz E. Herrera, Pilar M. Hernández-Escontrías

Faculty Scholarship

This article explores the need to develop a Latinx-focused network that advances law and policy. The Network for Justice is necessary to build upon the existing infrastructure in the legal sector to support the rapidly changing demographic profile of the United States. Latinxs are no longer a small or regionally concentrated population and cannot be discounted as a foreign population. Latinxs reside in every state in our nation and, in some communities, comprise a majority of the population. The goal of the Network for Justice is to facilitate and support local and statewide efforts to connect community advocates to formal …

Invisible Adjudication In The U.S. Courts Of Appeals, Michael Kagan, Rebecca Gill, Fatma Marouf

Faculty Scholarship

Non-precedent decisions are the norm in federal appellate courts, and are seen by judges as a practical necessity given the size of their dockets. Yet the system has always been plagued by doubts. If only some decisions are designated to be precedents, questions arise about whether courts might be acting arbitrarily in other cases. Such doubts have been overcome in part because nominally unpublished decisions are available through standard legal research databases. This creates the appearance of transparency, mitigating concerns that courts may be acting arbitrarily. But what if this appearance is an illusion? This Article reports empirical data drawn …

Adr And Access To Justice: Current Perspectives, Ellen E. Deason, Michael Z. Green, Donna Shestowsky, Rory Van Loo, Ellen Waldman

Faculty Scholarship

Extract:

I want to give you a roadmap for our program. We will not be delivering individual papers but, rather, hope to have a discussion. We are planning to spend thirty minutes on introductions for the purpose of allowing you to identify the source of each panelist's perspectives. We will then use an hour, more or less, for a discussion among the panel. That will leave fifteen minutes for audience questions and participation. Because we will be publishing an edited transcript, we ask that you hold your questions until the end.

Access to justice is a broad topic, and we …

Financial Regulation In The Bitcoin Era, William Magnuson

Faculty Scholarship

The recent decade has witnessed an extraordinary degree of innovation in the financial sector. Developments in financial technology, computing power, and networking theory have allowed decentralized online platforms such as Bitcoin to fundamentally change the way that financial services are provided. While these innovations have been applauded by many as bringing a welcome degree of competition to a sector long dominated by powerful incumbents, they also create a set of challenges for current financial regulation. How do fiduciary standards apply to algorithms? How does online finance affect the behavior of investors? And more generally, how can regulators monitor and constrain …

"Fake News," No News, And The Needs Of Local Communities, Carol Pauli

Faculty Scholarship

The Quaker authors had in mind an ancient truth - that "love endures and overcomes" - and they were convinced that this truth is accessible to all. This article addresses truth at a more immediate and mundane level. It is concerned with the accurate information that local communities need in order to thrive.

The article proceeds in three steps. Part I reviews one way community needs were addressed when the first large-scale electronic communication technology entered individual homes in the form of radio and television. In those days, broadcasters had an affirmative duty to ascertain the problems of the communities …

Exposing Secret Searches: A First Amendment Right Of Access To Electronic Surveillance Orders, Hannah Bloch-Wehba

Faculty Scholarship

Although, as a rule, court proceedings and judicial records are presumptively open to the public, electronic surveillance documents are exceptions. Like ordinary search warrants, surveillance applications are considered ex parte. But court orders frequently remain sealed indefinitely, even when there is no basis for continued secrecy. Indeed, secrecy — in the form of gag orders, local judicial rules, and even clerical filing and docketing practices — is built into the laws that regulate electronic surveillance.

This Article argues that this widespread secrecy violates the First Amendment right of access to court proceedings and documents. The history of search and seizure …

The Drug Debate: Data Exclusivity Is The New Way To Delay Generics, Srividhya Ragavan

Faculty Scholarship

The article discusses the protection regime for clinical trial data internationally and outlines the applicable protection regime. In doing so, this article outlines how the data exclusivity regime can operate in parallel with the patent regime to add a layer of protection for the data. Such protection operates at a regulatory level to delay the entry of generic medications. Internationally, the data exclusivity regime, which has become an important contemporary tool in trade negotiations with poorer nations, works to detrimentally affect access to medication

Anti-Innovation Norms, Stephanie Plamondon, Laura G. Pedraza-Fariña

Faculty Scholarship

Intellectual property (IP) scholars have recently turned their attention to social norms—informal rules that emerge from and are enforced by nonhierarchically organized social forces—as a promising way to spur innovation in communities as diverse as the fashion industry and the open-source software movement. The narrative that has emerged celebrates social norms’ ability to solve IP’s free-rider problem without incurring IP’s costs.

But this account does not fully consider the dark side of social norms. In fact, certain social norms, when overenforced, can create substantial barriers to the most socially beneficial creative pursuits. Because IP scholars have left unexplored how social …

Tracing Equity: Realizing And Allocating Value In Chapter 11, Edward J. Janger, Melissa B. Jacoby

Faculty Scholarship

No abstract provided.

Risk And Anxiety: A Theory Of Data Breach Harms, Daniel Solove, Danielle K. Citron

Faculty Scholarship

In lawsuits about data breaches, the issue of harm has confounded courts. Harm is central to whether plaintiffs have standing to sue in federal court and whether their claims are viable. Plaintiffs have argued that data breaches create a risk of future injury from identity theft or fraud and that breaches cause them to experience anxiety about this risk. Courts have been reaching wildly inconsistent conclusions on the issue of harm, with most courts dismissing data breach lawsuits for failure to allege harm. A sound and principled approach to harm has yet to emerge, resulting in a lack of consensus …

Quick Decisions In Patent Cases, Paul Gugliuzza

Faculty Scholarship

Patent litigation is notoriously expensive and time consuming. In the past decade, however, patent law has changed in many ways that expedite resolution of infringement disputes. This article identifies and evaluates this trend toward quick decisions in patent cases. Balancing the savings in litigation costs against the potential for error, the article defends many recent and controversial developments, including the Supreme Court’s invigoration of the patent eligible subject matter requirement, the new administrative proceedings created by the America Invents Act, and changes in the requirements for pleading patent infringement. These developments permit defendants to obtain rulings of invalidity or noninfringement …

Can Work Be Required In The Medicaid Program, Nicole Huberfeld

Faculty Scholarship

On January 11, 2018, a new policy encouraging states to develop work requirements in their Medicaid programs was issued by the Centers for Medicare and Medicaid Services (CMS).1 Under this policy, states can require nonelderly, nondisabled adults to work or engage in community service to qualify for Medicaid coverage, unless they are deemed medically frail or have a substance use disorder. States will be permitted to require detailed reporting on work status, decide who will be exempt from these requirements, and impose lockout periods for those who do not comply. For example, Kentucky’s newly approved program requires at least …

Response To Bruce Frohnen’S Review Of Fidelity To Our Imperfect Constitution: For Moral Readings And Against Originalisms, James E. Fleming, Bruce P. Frohnen

Faculty Scholarship

It is a privilege to participate in this exchange with Bruce Frohnen concerning our books. In my Fidelity to Our Imperfect Constitution, I observe that in recent years, many have assumed that originalists have a monopoly on concern for fidelity in constitutional interpretation. I reject all forms of originalism and defend a moral reading of the United States Constitution. Such a conception views the Constitution as embodying abstract moral and political principles, not codifying concrete historical rules or practices. It sees interpretation of those principles as requiring normative judgments about how they are best understood, not merely historical research to …

All Your Works Are Belong To Us: New Frontiers For The Derivative Work Right In Video Games, J. Remy Green

Faculty Scholarship

In copyright law, the author of an original work has the exclusive right to prepare further works derivative of that original. Video game developers’ works are protected by the Copyright Act. As video games take advantage of more advanced technology, however, players are doing more creative, interesting, and original things when they play games. Certain things players do create independent economic value and are the kinds of acts of original authorship our copyright system is designed to encourage. However, since the author of the video game is entitled to the full panoply of rights under the laws of the American …

Patent Clutter, Janet Freilich

Faculty Scholarship

Patent claims are supposed to clearly and succinctly describe the patented invention, and only the patented invention. This Article hypothesizes that a substantial amount of language in patent claims is in fact not about the core invention, which may contribute to well-documented problems with patent claims. I analyze the claims of 40,000 patents and applications, and document the proliferation of "clutter"-language in patent claims that is not about the invention. Although claims are supposed to be exclusively about the invention, clutter appears across industries and makes up approximately 25 % of claim language. Patent clutter may contribute several major problems …

Critical Dialogue, James E. Fleming, Bruce P. Frohnen

Faculty Scholarship

It is a privilege to participate in this exchange with Bruce Frohnen concerning our books. In my Fidelity to Our Imperfect Constitution, I observe that in recent years, many have assumed that originalists have a monopoly on concern for fidelity in constitutional interpretation. I reject all forms of originalism and defend a moral reading of the United States Constitution. Such a conception views the Constitution as embodying abstract moral and political principles, not codifying concrete historical rules or practices. It sees interpretation of those principles as requiring normative judgments about how they are best understood, not merely historical research to …

Demographic And Clinical Correlates Of Seizure Frequency: Findings From The Managing Epilepsy Well Network Database, Martha Sajatovic, Ashley Bukach, Curtis Tatsuoka

Faculty Scholarship

Background and Purpose Epilepsy is a chronic neurological disease that represents a tremendous burden on both patients and society in general. Studies have addressed how demographic variables, socioeconomic variables, and psychological comorbidity are related to the quality of life (QOL) of people with epilepsy (PWE). However, there has been less focus on how these factors may differ between patients who exhibit varying degrees of seizure control. This study utilized data from the Managing Epilepsy Well (MEW) Network of the Centers for Disease Control and Prevention with the aim of elucidating differences in demographic variables, depression, and QOL between adult PWE. …

Personal Strengths Reported By People With Chronic Illness: A Qualitative Study, Kurt C. Stange

Faculty Scholarship

Background: Self-management of chronic illness can be highly demanding and people need to mobilize their personal strengths to live well with their condition. More knowledge is needed about how people with chronic illness perceive and use their personal strengths as a basis for better integrating empowering person-centred approaches into health care. Objective: To explore what people with chronic illness describe as their strengths relevant to their health and well-being. Setting and Participants: Thirty-nine participants (11 men) from 4 outpatient self-management programmes were recruited to individual or group interviews. Participants included patients with chronic respiratory disease (n = 7), chronic pain …

Customizing Fair Use Transplants, Peter K. Yu

Faculty Scholarship

In the past decade, policymakers and commentators across the world have called for the introduction of copyright reform based on the fair use model in the United States. Thus far, Israel, Liberia, Malaysia, the Philippines, Singapore, South Korea, Sri Lanka and Taiwan have adopted the fair use regime or its close variants. Other jurisdictions such as Australia, Hong Kong and Ireland have also advanced proposals to facilitate such adoption.

Written for a special issue on "Intellectual Property Law in the New Technological Age: Rising to the Challenge of Change?", this article examines the increasing efforts to transplant fair use into …

Implantation Of Neural Probes In The Brain Elicits Oxidative Stress, Evon S. Ereifej, Griffin M. Rial, John K. Hermann, Cara S. Smith, Seth M. Meade, Jacob M. Rayyan, Keying Chen, He Feng, Jeffrey R. Capadona

Faculty Scholarship

Clinical implantation of intracortical microelectrodes has been hindered, at least in part, by the perpetual inflammatory response occurring after device implantation. The neuroinflammatory response observed after device implantation has been correlated to oxidative stress that occurs due to neurological injury and disease. However, there has yet to be a definitive link of oxidative stress to intracortical microelectrode implantation. Thus, the objective of this study is to give direct evidence of oxidative stress following intracortical microelectrode implantation. This study also aims to identify potential molecular targets to attenuate oxidative stress observed postimplantation. Here, we implanted adult rats with silicon non-functional microelectrode …

Free Trade In Electric Power, Joel B. Eisen, Felix Mormann

Faculty Scholarship

This Article develops the core legal framework of a new electricity-trading ecosystem in which anyone, anytime, anywhere, can trade electricity in any amount with anyone else. The proliferation of solar and other distributed energy resources, business model innovation in the sharing economy, and climate change present enormous challenges — and opportunities — for America’s energy economy. But the electricity industry is ill equipped to adapt to and benefit from these transformative forces, with much of its physical infrastructure, regulatory institutions, and business models a relic of the early days of electrification. We suggest a systematic rethinking to usher in a …

"They're Digging In The Wrong Place." How Learning Outcomes Can Improve Bar Exams And Ensure Practice Ready Attorneys, Debra Curtis

Faculty Scholarship

No abstract provided.

Editorial For Special Issue Of Queen Mary Journal Of Intellectual Property, Peter K. Yu

Faculty Scholarship

Editorial Extract:

On 24 October 2017, the 19th Chinese Communist Party Congress concluded in Beijing. Held every five years, this historical and highly anticipated event has not only ushered in leadership and policy changes, but has also sent a strong message to the outside world that China is eager to assume greater world leadership. Today, no country can attain leadership without strengthening its economic development and technological capacity. Although China was backward when it was re-opened to the outside world in the late 1970s, the past three decades have seen the country making breathtaking progress.

When The Chinese Intellectual Property System Hits 35, Peter K. Yu

Faculty Scholarship

This article explores what it means for the Chinese intellectual property system to hit 35. It begins by briefly recapturing the system’s three phases of development. It discusses the system’s evolution from its birth all the way to the present. The article then explores three different meanings of a middle-aged Chinese intellectual property system – one for intellectual property reform, one for China, and one for the TRIPS Agreement and the global intellectual property community.

Improving Pneumococcal Vaccine Uptake In Veterans With Chronic Lymphocytic Leukemia Through A Virtual Clinic, Brigid M. Wilson, L. Arfons, Federico Perez, Robin L.P. Jump

Faculty Scholarship

Through a “virtual clinic,” we used the electronic medical record to identify and intervene upon patients with chronic lymphocytic leukemia (CLL) who were not current for pneumococcal vaccines. Within 180 days, 100/160 patients (62%) received the recommended pneumococcal vaccine. A virtual clinic may improve vaccination rates among high-risk patient populations.

Contract, Promise, And The Right Of Redress, Andrew S. Gold

Faculty Scholarship

No abstract provided.

Taming Title Ix Tensions, Naomi M. Mann

Faculty Scholarship

The appropriate parameters for sexual assault disciplinary proceedings in public colleges and universities have historically been hotly contested. In recent years, the debate has focused on two competing sets of rights—the more established Title IX rights of the victim and the evolving constitutionally-based procedural due process rights of the accused. This debate over whose rights should be prioritized—those of the victim or those of the accused—is a classic civil rights enforcement dynamic. How can educational institutions effectuate the equality mandate of Title IX while not infringing on the constitutionally-based procedural due process rights of the accused? The Executive Branch, through …

Beyond Intermediary Liability: The Future Of Information Platforms - Workshop Report, Tiffany Li

Faculty Scholarship

On February 13, 2018, WIII hosted the workshop, “Beyond Intermediary Liability: The Future of Information Platforms.” Leading experts from industry, civil society, and academia convened at Yale Law School for a series of non-public, guided discussions. The roundtable of experts considered pressing questions related to intermediary liability and the rights, roles, and responsibilities of information platforms in society. Based on conversations from the workshop, WIII published a free, publicly available report detailing the most critical issues necessary for understanding the role of information platforms, such as Facebook and Google, in law and society today. The report highlights insights and questions …

Making Innovation More Competitive: The Case Of Fintech, Rory Van Loo

Faculty Scholarship

Finance startups are offering automated advice, touchless payments, and other products that could bring great societal benefits, including lower prices and expanded access to credit. Yet unlike in other digital arenas in which American companies were global leaders, such as search engines and ride hailing, the U.S. has lagged in consumer finance. This Article posits that the current competition framework is holding back consumer financial innovation. It then identifies a contributor that has yet to be articulated: the organizational design of administrative agencies. Competition authority—including antitrust and the extension of business licenses—is spread across at least five regulators. Each is …