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2015

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Full-Text Articles in Law

The Dmca Rulemaking Mechanism: Fail Or Safe?, Maryna Koberidze Dec 2015

The Dmca Rulemaking Mechanism: Fail Or Safe?, Maryna Koberidze

Maryna Koberidze

This Article analyzes seventeen years under the Digital Millennium Copyright Act (“DMCA”) rulemaking mechanism and suggests changes to reinforce its successes while remedying its failures. Part I briefly discusses the legislative history of the rulemaking mechanism and policy justifications for its adoption within the DMCA scheme. Part II reviews legal and evidentiary standards of the rulemaking and recent changes to its administrative procedure. Part III provides an overview of the prior rulemakings and their impact on non-infringing uses, with a particular focus on the “e-book” and “cellphone unlocking” exemptions. Part IV applauds the Breaking Down Barriers to Innovation Act of ...


Twombly And Iqbal At The State Level, Roger Michalski, Abby Wood Dec 2015

Twombly And Iqbal At The State Level, Roger Michalski, Abby Wood

Roger Michalski

This paper contributes to the empirical literature on pleading standards by studying the effect of Twombly and Iqbal at the state level. Studying pleading in the states is appealing for three reasons. First, the findings of this paper are the first to address the empirical workings of pleading regimes where most litigation in the United States occurs. States account for the majority of civil litigation, yet they are understudied doctrinally and empirically. Here, we examine filing behavior, the content and length of complaints, the use of amended complaints, voluntary dismissals, motion to dismiss filed, and dismissal rates. Second, federal civil ...


Amicus Brief: Kumho Tire V. Carmichael, Neil Vidmar, Richard Lempert, Shari Diamond, Valerie Hans, Stephan Landsman, Robert Maccoun, Joseph Sanders, Harmon Hosch, Saul Kassin, Marc Galanter, Theodore Eisenberg, Stephen Daniels, Edith Greene, Joanne Martin, Steven Penrod, James Richardson, Larry Heuer, Irwin Horowitz Dec 2015

Amicus Brief: Kumho Tire V. Carmichael, Neil Vidmar, Richard Lempert, Shari Diamond, Valerie Hans, Stephan Landsman, Robert Maccoun, Joseph Sanders, Harmon Hosch, Saul Kassin, Marc Galanter, Theodore Eisenberg, Stephen Daniels, Edith Greene, Joanne Martin, Steven Penrod, James Richardson, Larry Heuer, Irwin Horowitz

Robert MacCoun

This brief addresses the issue of jury performance and jury responses to expert testimony. It reviews and summaries a substantial body of research evidence about jury behavior that has been produced over the past quarter century. The great weight of that evidence challenges the view that jurors abdicate their responsibilities as fact finders when faced with expert evidence or that they are pro-plaintiff, anti-defendant, and anti-business.

The Petitioners and amici on behalf of petitioners make a number of overlapping, but empirically unsupported, assertions about jury behavior in response to expert testimony, namely that juries are frequently incapable of critically evaluation ...


The Klein Water Treatment Facility: Model For The New Superfund Management Strategy – Or- The Importance Of Being In The Wrong Place At The Right Time???, David Brown Dec 2015

The Klein Water Treatment Facility: Model For The New Superfund Management Strategy – Or- The Importance Of Being In The Wrong Place At The Right Time???, David Brown

David C. Brown

12 pages.


The Center Of The Center For Alternative Dispute Resolution, Wayne Brazil Dec 2015

The Center Of The Center For Alternative Dispute Resolution, Wayne Brazil

Wayne Brazil

Hawaii was one of the first states to establish within its judiciary a Center for Alternative Dispute Resolution. The Center's mission is: to mediate major public policy disputes and to facilitate policy formulation dialogues, to design and help implement mediation and other ADR programs for state and local governmental agencies, to provide education about and training in mediation for the public and for employees of state and local government, and to oversee the extensive network of community mediation centers that provide grass-roots mediation services throughout the Islands. In November of 2005 the Center celebrated its 20th anniversary by sponsoring ...


Admissibility Of Scientific Evidence Under Daubert: The Fatal Flaws Of ‘Falsifiability’ And ‘Falsification’, Barbara P. Billauer Esq Dec 2015

Admissibility Of Scientific Evidence Under Daubert: The Fatal Flaws Of ‘Falsifiability’ And ‘Falsification’, Barbara P. Billauer Esq

barbara p billauer esq

Abstract: The Daubert mantra demands that judges, acting as gatekeepers, prevent para, pseudo or ‘bad’ science from infiltrating the courtroom. To do so, the Judges must first determine what “science” is? And then, what ‘good science’ is? It is submitted that Daubert is seriously polluted with the notions of Karl Popper who sets ‘falsifiability’ and ‘falsification’ as the demarcation line for that determination. This inapt philosophy has intractably infected case law, leading to bad decisions immortalized as stare decisis. Among other problems, is the intolerance of Popper’s system for multiple causation, a key component of toxic- torts. Thus, the ...


Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel Dec 2015

Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel

Nehal A. Patel

AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle ...


A Matter Of Trial And Error, Or Betting On Appeals, Radek Goral Dec 2015

A Matter Of Trial And Error, Or Betting On Appeals, Radek Goral

Notre Dame Law Review Reflection

Sampling from the actual portfolio of a leading third-party litigation financier, this Essay demonstrates that making systematic bets on pending appeals is a viable business model applicable to a wide range of cases. “Appellate investments” may include both consumer and commercial cases, including also public-interest actions where prevailing plaintiffs are permitted attorney’s fees—even if they themselves do not seek monetary relief. Additionally, the analyzed sample indicates that appellate funders buy both from plaintiffs and plaintiffs’ attorneys, often in the same case.

The overview of the business strategy of appellate financing contributes to a larger theme: the role and ...


Adopting The Gay Family, Cynthia Godsoe Dec 2015

Adopting The Gay Family, Cynthia Godsoe

Faculty Scholarship

No abstract provided.


Trial Practice And Procedure, Brandon L. Peak, Tedra C. Hobson, David T. Rohwedder, Robert H. Snyder, Morgan E. Duncan, Joseph M. Colwell, Christopher B. Mcdaniel Dec 2015

Trial Practice And Procedure, Brandon L. Peak, Tedra C. Hobson, David T. Rohwedder, Robert H. Snyder, Morgan E. Duncan, Joseph M. Colwell, Christopher B. Mcdaniel

Mercer Law Review

This Article addresses several significant opinions issued and legislation passed during the survey period of this publication for the Georgia civil trial practitioner.


Joinder Of Unrelated Infringers As Defendants In Patent Litigation Under The Jurisprudence Of The United States District Court For Eastern District Of Texas—A Critical Review, Ping-Hsun Chen Nov 2015

Joinder Of Unrelated Infringers As Defendants In Patent Litigation Under The Jurisprudence Of The United States District Court For Eastern District Of Texas—A Critical Review, Ping-Hsun Chen

Ping-Hsun Chen

On September 16, 2011, the American patent system started a new era because of the enactment of the Leahy-Smith America Invents Act (“AIA”). 35 U.S.C. § 299 was enacted to limit district court’s power to permit joinder of unrelated infringers as defendants in a single lawsuit. Before that, district courts apply Rule 20 of the Federal Civil Procedure. The Eastern District of Texas had permitted joinder only because the same patent was infringed. By introducing § 299, Congress intended to abrogate such approach. Later, the Federal Circuit in In re EMC limited the practice of Rule 20 and required ...


Joinder Of Unrelated Infringers As Defendants In Patent Litigation Under The Jurisprudence Of The United States District Court For Eastern District Of Texas—A Critical Review, Ping-Hsun Chen Nov 2015

Joinder Of Unrelated Infringers As Defendants In Patent Litigation Under The Jurisprudence Of The United States District Court For Eastern District Of Texas—A Critical Review, Ping-Hsun Chen

Ping-Hsun Chen

On September 16, 2011, the American patent system started a new era because of the enactment of the Leahy-Smith America Invents Act (“AIA”). 35 U.S.C. § 299 was enacted to limit district court’s power to permit joinder of unrelated infringers as defendants in a single lawsuit. Before that, district courts apply Rule 20 of the Federal Civil Procedure. The Eastern District of Texas had permitted joinder only because the same patent was infringed. By introducing § 299, Congress intended to abrogate such approach. Later, the Federal Circuit in In re EMC limited the practice of Rule 20 and required ...


Litigation Trolls, W. Bradley Wendel Nov 2015

Litigation Trolls, W. Bradley Wendel

Cornell Law Faculty Working Papers

Third-party financing of litigation has been described with a variety of unflattering metaphors. Litigation financers have been likened to gamblers in the courtroom casino, loan sharks, vultures, Wild West outlaws, and busybodies mucking about in the private affairs of others. Now Judge Richard Posner has referred to third-party financers as litigation trolls, an undeniably unflattering comparison to patent trolls. But what it is, if anything, that makes third-party financers “trolls”? Legal claims are, for the most part, freely assignable, the proceeds of claims are assignable, and various strangers to the underlying lawsuit, including liability insurers and plaintiffs’ contingency-fee counsel, are ...


Rule 412 Laid Bare: A Procedural Rule That Cannot Adequately Protect Sexual Harassment Plaintiffs From Embarrassing Exposure, Andrea A. Curcio Nov 2015

Rule 412 Laid Bare: A Procedural Rule That Cannot Adequately Protect Sexual Harassment Plaintiffs From Embarrassing Exposure, Andrea A. Curcio

Andrea A. Curcio

No abstract provided.


Using Common Sense: A Linguistic Perspective On Judicial Interpretations Of "Use A Firearm", Clark D. Cunningham, Charles J. Filmore Nov 2015

Using Common Sense: A Linguistic Perspective On Judicial Interpretations Of "Use A Firearm", Clark D. Cunningham, Charles J. Filmore

Clark D. Cunningham

No abstract provided.


The Unbearable Lightness Of Batson: Mixed Motives And Discrimination In Jury Selection, Russell D. Covey Nov 2015

The Unbearable Lightness Of Batson: Mixed Motives And Discrimination In Jury Selection, Russell D. Covey

Russell D. Covey

No abstract provided.


Temporary Insanity: The Strange Life And Times Of The Perfect Defense, Russell D. Covey Nov 2015

Temporary Insanity: The Strange Life And Times Of The Perfect Defense, Russell D. Covey

Russell D. Covey

The temporary insanity defense has a prominent place in the mythology of criminal law. Because it seems to permit factually guilty defendants to escape both punishment and institutionalization, some imagine it as the “perfect defense.” In fact, the defense has been invoked in a dizzying variety of contexts and, at times, has proven highly successful. Successful or not, the temporary insanity defense has always been accompanied by a storm of controversy, in part because it is often most successful in cases where the defendant’s basic claim is that honor, revenge, or tragic circumstance – not mental illness in its more ...


Rules, Standards, Sentencing, And The Nature Of Law, Russell D. Covey Nov 2015

Rules, Standards, Sentencing, And The Nature Of Law, Russell D. Covey

Russell D. Covey

Sentencing law and practice in the United States can be characterized as an argument about rules and standards. Whereas in the decades prior to the 1980s when sentencing was largely a discretionary activity governed only by broad sentencing standards, a sentencing reform movement in the 1980s transformed sentencing practice through the advent of sentencing guidelines and mandatory minimum provisions. As a result, sentencing became far less standard-like and far more rule-like. Although reform proponents believed that this "rulification" of sentencing would reduce unwarranted sentencing disparities and enhance justice, it is far from clear that these goals were achieved. Indeed, the ...


Fixed Justice: Reforming Plea-Bargaining With Plea-Based Ceilings, Russell D. Covey Nov 2015

Fixed Justice: Reforming Plea-Bargaining With Plea-Based Ceilings, Russell D. Covey

Russell D. Covey

The ubiquity of plea bargaining creates real concern that innocent defendants are occasionally, or perhaps even routinely, pleading guilty to avoid coercive trial sentences. Pleading guilty is a rational choice for defendants as long as prosecutors offer plea discounts so substantial that trial is not a rational strategy regardless of guilt or innocence. The long-recognized solution to this problem is to enforce limits on the size of the plea/trial sentencing differential. As a practical matter, however, discount limits are unenforceable if prosecutors retain ultimate discretion over charge selection and declination. Because the doctrine of prosecutorial charging discretion is immune ...


Deadly Waiting Game: An Environmental Justice Framework For Examining Natural And Man-Made Disasters Beyond Hurricane Katrina [Abstract], Robert D. Bullard Nov 2015

Deadly Waiting Game: An Environmental Justice Framework For Examining Natural And Man-Made Disasters Beyond Hurricane Katrina [Abstract], Robert D. Bullard

Robert D Bullard

Presenter: Robert D. Bullard, Ph.D., Professor of Sociology, Clark Atlanta University 1 page.


Colorado Denies Privilege For Guardian Ad Litem, Lisa Radtke Bliss Nov 2015

Colorado Denies Privilege For Guardian Ad Litem, Lisa Radtke Bliss

Lisa Radtke Bliss

No abstract provided.


Lawyers Heed Call To Volunteer Pro Bono Service, Lisa Radtke Bliss Nov 2015

Lawyers Heed Call To Volunteer Pro Bono Service, Lisa Radtke Bliss

Lisa Radtke Bliss

No abstract provided.


Amicus Brief In "Robincheaux V. Caldwell", Tanya Washington, Catherine Smith, Susannah Pollvogt Nov 2015

Amicus Brief In "Robincheaux V. Caldwell", Tanya Washington, Catherine Smith, Susannah Pollvogt

Tanya Monique Washington

No abstract provided.


For Every Wrong, A Remedy: A Narrow Interpretation Of The Locomotive Inspection Act's Preemptive Scope In Asbestos Cases, Andrew Malzahn Nov 2015

For Every Wrong, A Remedy: A Narrow Interpretation Of The Locomotive Inspection Act's Preemptive Scope In Asbestos Cases, Andrew Malzahn

Hamline Law Review

*


State Action On Appeal: Parker Immunity And The Collateral Order Doctrine In Antitrust Litigation, Jason Kornmehl Nov 2015

State Action On Appeal: Parker Immunity And The Collateral Order Doctrine In Antitrust Litigation, Jason Kornmehl

Seattle University Law Review

The collateral order doctrine is perhaps the most significant exception to the general rule that only final judgments are appealable. The doctrine is particularly important in antitrust litigation when a defendant asserts state action immunity, often referred to as Parker immunity. However, the circuit courts have struggled with the question of whether a denial of Parker immunity is immediately appealable as a collateral order. This unsettled procedural issue is further complicated by the fact that the substantive law on Parker immunity differs depending on the entity asserting state action. This Article argues that a governmental entity that is deemed part ...


Experts, Statistics, Science & Bad Science, Curtis E.A. Karnow Nov 2015

Experts, Statistics, Science & Bad Science, Curtis E.A. Karnow

Curtis E.A. Karnow

Articles, books, and other online resources relating to expert testimony with a specific focus on problems with peer review, bad science, and statistics


Financing Education: An Overview Of Public School Funding, Charles J. Russo, William E. Thro, Frank M. Batz Nov 2015

Financing Education: An Overview Of Public School Funding, Charles J. Russo, William E. Thro, Frank M. Batz

Educational Leadership Faculty Publications

Financial resources for public education are increasingly scarce, and district leaders at all levels continue to struggle to maintain adequate levels of financial resources for their students and programs using complex funding formulas unique to their own jurisdictions. To help educators and education stakeholders better understand the dimensions of paying for public education, we begin with an overview of the historical development of school finance litigation that has shaped the funding mechanisms in most jurisdictions. The next section highlights developments in four representative jurisdictions from the funding formulas currently available in ASBO International’s Funding Formula Library. The library, available ...


Declining Controversial Cases: How Marriage Equality Changed The Paradigm, Elena Baylis Nov 2015

Declining Controversial Cases: How Marriage Equality Changed The Paradigm, Elena Baylis

Articles

Until recently, state attorneys general defended their states’ laws as a matter of course. However, one attorney general’s decision not to defend his state’s law in a prominent marriage equality case sparked a cascade of attorney general declinations in other marriage equality cases. Declinations have also increased across a range of states and with respect to several other contentious subjects, including abortion and gun control. This Essay evaluates the causes and implications of this recent trend of state attorneys general abstaining from defending controversial laws on the grounds that those laws are unconstitutional, focusing on the marriage equality ...


Business And Commercial Litigation In Federal Courts (3d Ed.), Edited By Robert L. Haig, James M. Wicks Oct 2015

Business And Commercial Litigation In Federal Courts (3d Ed.), Edited By Robert L. Haig, James M. Wicks

St. John's Law Review

(Excerpt)

The BCL is comprehensive, up-to-date, and very user-friendly. The practice aids, strategic considerations, checklists, and forms all make this set of books a "must-have" for every business litigator who is or will be going to federal court. Even as law libraries seem to be moving toward cutting book subscriptions, if one were to subscribe to only a single set of practice-based books, this should be it.


The Roberts Court And Securities Class Actions: Reaffirming Basic Principles, Eric Alan Isaacson Oct 2015

The Roberts Court And Securities Class Actions: Reaffirming Basic Principles, Eric Alan Isaacson

Akron Law Review

Part II of this Article presents an overview of Roberts Court decisions concerning class litigation...The Article’s primary focus, however, is on a trilogy of Roberts Court decisions concerning class certification in open-market securities fraud cases, where fraudulent statements allegedly manipulated the price of securities traded in the open market: Erica P. John Fund, Inc. v. Halliburton, Co. (“Halliburton I”), Amgen, Inc. v. Connecticut Retirement Plans and Trust Funds, and Halliburton Co. v. Erica P. John Fund, Inc. (“Halliburton II”)...Rather than jumping directly into a discussion of the three decisions, which have been extraordinarily good news for investors ...