Digital Commons Network^™

Administrating Patent Litigation, Jacob S. Sherkow

Articles & Chapters

Recent patent litigation reform efforts have focused on every branch of govemment-Congress, the President, and the federal courts-save the fourth: administrative agencies. Agencies, however, possess a variety of functions in patent litigation: they serve as "gatekeepers" to litigation in federal court; they provide scientific and technical expertise to patent disputes; they review patent litigation to fulfill their own mandates; and they serve, in several instances, as entirely alternative fora to federal litigation.

Understanding administrative agencies' functions in managing or directing, i.e., "administrating," patent litigation sheds both descriptive and normative insight on several aspects of patent reform. These include several problems …

Privacy As Trust: Sharing Personal Information In A Networked World, Ari Ezra Waldman

Articles & Chapters

This Article is the first in a series on the legal and sociological aspects of privacy, arguing that private contexts are defined by relationships of trust among individuals. The argument reorients privacy scholarship from an individual right to social relationships of disclosure. This has implications for a wide variety of vexing problems of modern privacy law, from limited disclosures to “revenge porn.”

The common everyday understanding is that privacy is about choice, autonomy, and individual freedom. It encompasses the individual’s right to determine what he will keep hidden and what, how, and when he will disclose to the public. Privacy …

One Significant Step: How Reforms To Prison Districts Begin To Address Political Inequality, Erika L. Wood

Articles & Chapters

No abstract provided.

I Expected It To Happen/I Knew He'd Lost Control: The Impact Of Ptsd On Criminal Sentencing After The Promulgation Of Dsm-5, Michael L. Perlin

Articles & Chapters

The adoption by the American Psychiatric Association of DSM-5 significantly changes (and in material ways, expands) the definition of post-traumatic stress disorder (PTSD), a change that raises multiple questions that need to be considered carefully by lawyers, mental health professionals, advocates and policy makers.

My thesis is that the expansion of the PTSD criteria in DSM-5 has the potential to make significant changes in legal practice in all aspects of criminal procedure, but none more so than in criminal sentencing. I believe that if courts treat DSM 5 with the same deference with which they have treated earlier versions of …

How Teaching About Therapeutic Jurisprudence Can Be A Tool Of Social Justice, And Lead Law Students To Personally And Socially Rewarding Careers: Sexuality And Disability As A Case Example, Michael L. Perlin, Alison Lynch

Articles & Chapters

Therapeutic jurisprudence (TJ) asks us to look at law as it actually impacts people’s lives and focuses on the law’s influence on emotional life and psychological well-being. It suggests that law should value psychological health, should strive to avoid imposing anti-therapeutic consequences whenever possible, and — when consistent with other values served by law — should attempt to bring about healing and wellness. The ultimate aim of TJ is to determine whether legal rules and procedures or lawyer roles can or should be reshaped to enhance their therapeutic potential while not subordinating due process principles. An inquiry into therapeutic outcomes …

Discussing Advocacy Skills In Traditional Doctrinal Courses, Stephen A. Newman

Articles & Chapters

Can teaching students in doctrinal courses, using traditional case-oriented materials, convey some of the skills lawyers need to practice law effectively? While the recent interest in and debate over training practice-ready lawyers makes this a timely question, my thinking about this harks back to the mid-1990s, when Harry Wellington, then dean of New York Law School, suggested that faculty members consider teaching law from the lawyer’s perspective rather than from the perspective of either the judge or the legal scholar.

In traditional doctrinal courses in law school, like my own in family law, coverage is broad and time is short. …

Creating A Building A Disability Rights Information Center For Asia And The Pacific Clinic: Of Pedagogy And Social Justice, Michael L. Perlin, Catherine Barreda, Katherine Davies, Mehgan Gallagher, Nicole Israel, Stephanie Mendelsohn

Articles & Chapters

No abstract provided.

Tilting At Stratification: Against A Divide In Legal Education, Rebecca Roiphe

Articles & Chapters

Critics suggest we divide law schools into an elite tier whose graduates serve global business clients and a lower tier, which would prepare lawyers for simple disputes. This idea is not new. A similar proposal emerged in the early twentieth century. This article draws on the historical debate to argue that this simplistic approach cannot solve the myriad problems facing the legal profession and legal education. Supporters of separate tiers of law school rely on a caricature of the early history to argue that the Bar is acting in a protectionist way to ensure its own monopoly and keep newcomers …

Scholarship Against Desire, Shari Motro

Law Faculty Publications

This article uses my own experience navigating the law review placement process to reflect on the dynamics that shape intellectual life at American law schools. My recent work focuses on the legal relationship between unmarried lovers who conceive. At its heart, it is about the law’s role in shaping the precursor to pregnancy—heterosexual sex. When I began researching this topic what I was most curious about was how law and culture might conspire to foster connections that are more loving and less violent, more authentic and less alienated. Pursuing this topic—which would entail exploring big existential questions to which I …

Restorative Justice For Multinational Corporations, Andrew B. Spalding

Law Faculty Publications

Deterrence theory, rooted in the methodology of law and economics, continues to dominate both the theory and practice of white-collar crime. By manipulating the disincentives of prospective wrongdoers, deterrence aims to efficiently reduce crime and maximize taxpayers’ utility. However, the rise of international commerce presents a challenge it cannot meet. Using a combination of empirical evidence and quantitative modeling, this Article shows that deterrence will tend to increase, rather than decrease, net levels of corporate crime in developing countries. The ever-increasing power of multinational corporations thus calls for a new theory of punishment, one that uses criminal enforcement to address …

Temporal Arbitrariness: A Back To The Future Look At A Twenty-Five-Year-Old Death Penalty Trial, Mary Kelly Tate

Law Faculty Publications

his essay grapples with a previously unexamined feature of the death penalty: temporal arbitrariness. How does the circumstance of time affect capital defendants? What might this mean for the stability of our notions of justice? I explore these questions using a 25-year-old death penalty trial as a case study, examining the procedural and factual highlights of the case and situating it in its temporal milieu. I then explore how the roles of doctrine, policy, and cultural attitudes would dramatically alter the nature and probable outcome of the case today, illustrating how temporal arbitrariness further exposes the death penalty’s unsteady administration …

The Civil Rights Of Sexually Exploited Youth In Foster Care, Dale Margolin Cecka

Law Faculty Publications

This paper examines the civil rights of youth who are missing or discharged from foster care and become victims of sexual exploitation. It also addresses future implications of this epidemic, given demographic patterns of the United States, if we do not address this issue now. Section II describes the demographics of adolescents in foster care. Next, Section III addresses the sexual exploitation of this population. Section IV describes the legal framework of the foster care system and legislation pertaining to sexually exploited youth. Section V analyzes the constitutional rights of foster youth who become victims of sexual exploitation and draws …

Death As A Bargaining Chip: Plea Bargaining And The Future Of Virginia's Death Penalty, John G. Douglass

Law Faculty Publications

Virginia now averages less than a single death sentence each year, a far cry from its not-too-distant history as the second most active death penalty state in the nation. The numbers alone tempt us to forecast the death of Virginia's death penalty: a death by disuse. But those numbers leave much of the story untold. The plummeting number of death sentences is only the diminishing tip of a larger, more stable iceberg of capital case litigation. That iceberg is melting very slowly, if at all.

Filling The Federal Appellate Court Vacancies, Carl W. Tobias

Law Faculty Publications

Multiple observers have criticized President Barack Obama’s discharge of his Article II constitutional responsibility to nominate and confirm federal judges. Senators have blamed the administration for slowly making nominations, liberals have contended that the executive appointed myriad candidates who are not sufficiently centrist, and conservatives have alleged that President Obama proffered many nominees who could become liberal judicial activists. Despite the sharp criticisms, the President has actually realized much success when nominating and confirming well qualified moderate jurists. President Obama has named more judges than Presidents George W. Bush and Bill Clinton had at this juncture in their tenure, while …

Picturing Moral Arguments In A Fraught Legal Arena: Fetuses, Photographic Phantoms And Ultrasounds, Jessica Silbey

Faculty Scholarship

This article investigates the movement in the U.S. that seeks to regulate the abortion decision by mandating ultrasounds prior to the procedure. The article argues that this reform effort is misguided not only because it is ineffective, but also because ultrasounds provide misleading information and are part of shaming practices that degrade the dignity of women. Both of these problems violate the main tenets of Planned Parenthood of Southern Pennsylvania v. Casey (1992). Central to the article’s argument and novelty is that the pro-ultrasound movement’s mistake is both legal and cultural. It misunderstands the nature of visual technology by failing …

Reading Intellectual Property Law Reform Through The Lens Of Constitutional Equality, Jessica Silbey

Faculty Scholarship

In reviewing three books, Robert Spoo's Without Copyright, Bill Herman's The Fight for Digital Rights, and Aram Sinnreich's The Piracy Crusade, for Tulsa Law Review's annual book review volume, this paper explores new themes and structures in Supreme Court cases about intellectual property. Studying the new histories and processes described in the books under review helps reveal constitutional equality frameworks in Supreme Court cases about intellectual property usually understood as cases about congressional deference and property rights. This article explains how many of these Supreme Court cases about IP reflect a range of equality modalities - e.g., …

The Secret Economy Of Charitable Giving, Allison Anna Tait

Law Faculty Publications

Charitable giving is big business. In 2009, the Internal Revenue Service reported close to 100,000 private foundations, almost double the number from fifteen years earlier. Some of these charitable trusts, like the Gates Foundation, are multi-billion dollar enterprises. Trust instruments and other governing documents set forth the terms that control these gifts. Because charitable trusts can exist in perpetuity, however, changing circumstances sometimes render the terms difficult to fulfill. Courts can apply cy pres, a doctrine that allows for the modification of gift restrictions, but in the past courts have tended to apply cy pres narrowly and privilege donor intent …

In The Beginning There Was None: Supreme Court Review Of State Criminal Prosecutions, Kevin C. Walsh

Law Faculty Publications

This Article challenges the unquestioned assumption of all contemporary scholars of federal jurisdiction that section 25 of the Judiciary Act of 1789 authorized Supreme Court appellate review of state criminal prosecutions. Section 25 has long been thought to be one of the most important provisions of the most important jurisdictional statute enacted by Congress. The Judiciary Act of 1789 gave concrete institutional shape to a federal judiciary only incompletely defined by Article III. And section 25 supplied a key piece of the structural relationship between the previously existing state court systems and the new federal court system that Congress constructed …

The Highs And Lows Of Wild Justice, Corinna Barrett Lain

Law Faculty Publications

In Part I of this Review, I present a brief summary of Mandery's book, providing readers a glimpse of the fascinating story A Wild Justice tells and the engaging prose with which it is written. In Part II, I do the same for Rosenbaum's book, distilling the argument in Paybackand excerpting illustrative passages to provide readers an idea of what they will be getting. In Part III, I use both books to explore the difference between retribution and revenge, and the role those notions play in the defense of the death penalty today. I conclude that while Rosenbaum is unpersuasive …

Childcare Market Failure, Meredith Johnson Harbach

Law Faculty Publications

In the UnitedStates,family law norms and childcare policy have long reflected the view that childcare is a private,family matter.Butchildcare hascrossedtheprivate-publicdivide.In the absence of parents at home providing care, a substantial childcare market has emerged. And that market is failing. Our law, policy, and legal scholarship have yet to recognize and account for this new reality. This Article confronts the problem on its own terms, using economic analysis to diagnose our childcarecrisis as a marketfailure,and makes the casefor more active and explicit government intervention in the childcare market. Economic theory not only helps us understand why the market is failing, but …

Marriage Equality Comes To Virginia, Carl W. Tobias

Law Faculty Publications

Part I of this article chronicles marriage equality's rise and development nationally. It ascertains that challenges, which fos- tered the invalidation of marriage prohibitions that essentially govern nearly all jurisdictions, including Virginia, have triggered some controversy. Part II scrutinizes Judge Wright Allen's resolu- tion of the Virginia litigation and the United States Court of Ap- peals for the Fourth Circuit determination, which affirmed her ruling. This portion finds that the district jurist comprehensively assessed the relevant legal and factual issues when striking down the proscription while the Fourth Circuit appropriately upheld her opinion. Part III then derives lessons from the …

"I Now Pronounce You Husband And Wives": The Case For Polygamous Marriage After United States V. Windsor And Burwell V. Hobby Lobby Stores, Peter N. Swisher

Law Faculty Publications

The purpose of this article is to question the continuing validity of Reynolds in light of subsequent United States Supreme Court deci- sions, including-most recently-UnitedStates v. Windsor and Burwell v. Hobby Lobby Stores, Inc. Based upon these subsequent Supreme Court decisions, and the Religious Freedom Restoration Act of 1993, proponents of polygamous marriage now have a very strong case for validating polygamous marriages on cultural, religious, and constitutional grounds.

Modern "Sappers And Miners": The Rehnquist And Roberts Courts And The Civil Rights Act Of 1964, Jonathan K. Stubbs

Law Faculty Publications

o orient readers on what is at stake, Section I provides a brief overview of the substantive provisions of the Civil Rights Act of 1964. Section II considers reasons why the Act was premised on Congress' Commerce Clause authority rather than the enforcement power that the Constitution confers upon Congress under the Thirteenth and Fourteenth Amendments. Section III evaluates several recent Supreme Court decisions that give the Commerce Clause a restrictive interpretation. For illustrative purposes, this section ex- plores the impact on Title Two of the Act. Finally, the article closes with a few observations of the implications of the …

Brief For Federal Energy Regulatory Commission As Amici Curiae Of Energy Law Scholars Supporting Petitioners, Joel B. Eisen

Law Faculty Publications

Amici curiae are law professors who have significant research and teaching experience in the field of energy law, with a particular focus on electric power markets. They are listed in the Appendix to this brief. They are submitting this brief because they believe that the U.S. Court of Appeals for the District of Columbia Circuit made serious errors when it held that the Federal Energy Regulatory Commission (FERC) lacked authority to regulate operators’ rules for demand response (DR) in the wholesale electricity markets.

Wagering On The Lives Of Strangers: The Insurable Interest Requirement In The Life Insurance Secondary Market, Peter N. Swisher

Law Faculty Publications

The purpose of this article is to explore and analyze the crucial inter- relationship and the present tension existing between various life settlement alternatives and the insurable interest requirement for life insurance. Does the 240-year-old insurable interest doctrine adequately meet the needs of a modern society in recognizing a secondary market for life in- surance? If so, what additional remedies, if any, are available to both the insured and the insurer to legally protect the contractual rights and reasonable expectations of the parties?

What Are The Article Iii Limits To Bankruptcy Court Jurisdiction, And Can Parties Consent To Expanded Jurisdiction: Wellness International Network V. Sharif (13-935), Marshall E. Tracht

Articles & Chapters

No abstract provided.

Fluorescent Image Analysis Of Hiv-1 And Hiv-2 Uncoating Kinetics In The Presence Of Old World Monkey Trim5Α, Eric Takeda, Ken Kono, Amy E. Hulme, Thomas J. Hope, Emi E. Nakayama, Talsuo Shioda

College of Health and Human Services

Uncoating of Human Immunodeficiency Virus type 1 (HIV-1) and type 2 (HIV-2) conical cores is an important early step for establishment of infection. In Old World Monkey (OWM) cells, the TRIM5α cellular factor potently suppresses an early step of infection by HIV-1. Previously, biochemical studies using whole cell lysates of infected cells revealed that OWM TRIM5α accelerates the uncoating of HIV-1, leading to premature reverse transcription. In the present study, we re-evaluated uncoating kinetics of HIV-1 in the presence of OWM TRIM5α by using an in situ uncoating assay, which allowed us to differentiate productive HIV-1 entry from simple (non-productive) …

Foreword: African Asylum At A Crossroads: Activism, Expert Testimony, And Refugee Rights, Penelope Andrews

Articles & Chapters

No abstract provided.

Effects Of A1aar And A1bar Knockout On Anxiety And Depression, Erin Krueger

Undergraduate Theses and Senior Projects

No abstract provided.

Education, Oppression, And Democracy : A Philosophical Approach To Educational Inequity, Ben Davis

Undergraduate Theses and Senior Projects

No abstract provided.