Law Commons^™

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

Maryna Koberidze

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

David C. Brown

12 pages.

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 various …

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 a …

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

Clark D. Cunningham

No abstract provided.

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

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

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

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 to …

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

Lisa Radtke Bliss

No abstract provided.

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

Tanya Monique Washington

No abstract provided.

Wrongful Death Actions Under Section 1983, Martin A. Schwartz, Steven Steinglass, Richard Emery, Ilann Margalit Maazel

Martin A. Schwartz

No abstract provided.

Section 1983 Litigation: Supreme Court Review, Erwin Chemerinsky, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

Constitutional Courage, Harry W. Arthurs

Harry Arthurs

In this lecture, Professor Arthurs argues that we are currently in need of "constitutional courage"-the courage to say "no" to ambitious projects of constitutional reform and constitutional litigation as a way to solve our pressing social and political problems. Professor Arthurs first lays out why our current obsession with the constitution is problematic. He insists that we do not even know what the supposed "supreme law of Canada" actually is, what it says, or even what it does. Moreover, instead of transforming society, the current "cult of constitutionalism" has only served to transform legal practice and scholarship. ei then surmises …

Who's Zoomin' Who?: Comments On Liability For Pharmaceutical Products In Canada, Allan C. Hutchinson, Sue Hodgson

Allan C. Hutchinson

A collection of papers from the ninth Fulbright Colloquium held in September 1989. The papers compare legal practices and procedures in North America and Europe and the barriers to drug development caused by increased litigation in cases involving pharmaceutical products.

Standards Of Proof In Civil Litigation: An Experiment From Patent Law, David L. Schwartz, Christopher B. Seaman

Christopher B. Seaman

Standards of proof are widely assumed to matter in litigation. They operate to allocate the risk of error between litigants, as well as to indicate the relative importance attached to the ultimate decision. But despite their perceived importance, there have been relatively few empirical studies testing jurors’ comprehension and application of standards of proof, particularly in civil litigation. Patent law recently presented an opportunity to assess the potential impact of varying the standard of proof in civil cases. In Microsoft Corp. v. i4i Limited Partnership, the Supreme Court held that a patent’s presumption of validity can only be overcome by …

El Derecho Al Secreto Y La Teoría Del Cono, Juan Carlos Riofrío Martínez-Villalba

Juan Carlos Riofrío Martínez-Villalba

El presente estudio contiene una teoría general del derecho de los secretos, que sirve para determinar el peso específico de cada secreto, a efectos de realizar una correcta ponderación de derechos. La teoría explica las relaciones que existen entre los diversos tipos de secreto, utilizando y desarrollando la teoría del cono de García Morente, que se muestra como una herramienta apropiada para dilucidar cuándo hay derecho al secreto, cuando no lo hay y en qué medida. La metodología utilizada es inductiva. El análisis se estructura de la siguiente manera: (i) se recapitula la teoría general del derecho de los secretos; …

Uncontested Divorces In New York: Tips For Attorneys And The Self-Represented, Gerald Lebovits

Hon. Gerald Lebovits

No abstract provided.

Documenting Law: Reality & Representation On Trial, 39 Lincoln L. Rev. 1 (2012), Cynthia Bond

Cynthia D. Bond

No abstract provided.

Patent Claim Construction: A Modern Synthesis And Structured Framework, Peter S. Menell, Matthew D. Powers, Steven C. Carlson

Peter Menell

No abstract provided.

203 N. Lasalle Five Years Later: Answers To The Open Questions, 38 J. Marshall L. Rev. 61 (2004), Paul B. Lewis

Paul Lewis

No abstract provided.

Conflict Of Laws, James P. George, Susan T. Phillips

James P. George

States' and nations' laws collide when foreign factors appear in a lawsuit. Nonresident litigants, incidents outside the forum, and judgments from other jurisdictions can create problems with personal jurisdiction, choice of law, and the recognition of foreign judgments. This Article reviews Texas conflict cases from Texas state and federal courts during the Survey-period from November 1, 2011 through October 31, 2013. The Article excludes cases involving federal-state conflicts; intrastate issues, such as subject matter jurisdiction and venue; and conflicts in time, such as the applicability of prior or subsequent law within a state. State and federal cases are discussed together …

It's Not Over 'Til It's Over: Mandating Federal Pretrial Jurisdiction And Oversight In Mass Torts, Tanya Pierce

Tanya Pierce

In 2004, just five years after introducing the drug, Vioxx, pharmaceutical company, Merck, voluntarily withdrew the prescription pain-killer after a clinical study suggested that the drug increased the risk of heart attack and stroke. But in that relatively short time, an estimated 20 million Americans had already taken the drug. By late 2007, Merck announced it would pay $4.85 billion — the largest drug settlement ever — in “global settlements” for Vioxx-related claims. These settlements ultimately included roughly 47,000 individual lawsuits and about 265 potential class actions, but the Vioxx settlements were far from global.

In 2012, a purported parallel …

Conflict Of Laws, James P. George, Susan T. Phillips

Susan T. Phillips

States' and nations' laws collide when foreign factors appear in a lawsuit. Nonresident litigants, incidents outside the forum, and judgments from other jurisdictions can create problems with personal jurisdiction, choice of law, and the recognition of foreign judgments. This Article reviews Texas conflict cases from Texas state and federal courts during the Survey-period from November 1, 2011 through October 31, 2013. The Article excludes cases involving federal-state conflicts; intrastate issues, such as subject matter jurisdiction and venue; and conflicts in time, such as the applicability of prior or subsequent law within a state. State and federal cases are discussed together …

Deferred Action, Supervised Enforcement Discretion, And The Rule Of Law Basis For Executive Action On Immigration, Anil Kalhan

Anil Kalhan

In November 2014, the Obama administration announced the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) initiative, which built upon a program instituted two years earlier, the Deferred Action for Childhood Arrivals (DACA) initiative. As mechanisms to channel the government’s scarce resources toward its enforcement priorities more efficiently and effectively, both DACA and DAPA permit certain individuals falling outside those priorities to seek “deferred action,” which provides its recipients with time-limited, nonbinding, and revocable notification that officials have exercised prosecutorial discretion to deprioritize their removal. While deferred action thereby facilitates a highly tenuous form of quasi-legal recognition …

Should Government Be Allowed To Recover The Costs Of Public Services From Tortfeasors?: Tort Subsidies, The Limits Of Loss Spreading, And The Free Public Services Doctrine, Timothy D. Lytton

Timothy D. Lytton

The free public services doctrine (also known as the municipal cost recovery rule) states that a government entity may not recover from a tortfeasor the costs of public services occasioned by the tortfeasor's wrongdoing. This article traces the history of the doctrine and argues for its elimination. The article criticizes case law supporting the doctrine and raises objections based on fairness, efficiency, and institutional concerns about the proper limits of judicial policy making. The article discusses the implications of eliminating the doctrine for tobacco litigation, gun litigation, and tort reform.