Law Commons^™

Brief Of Amici Curiae Former Consular Officers In Support Of Respondent, Kerry V. Din, No. 13-1402 United States Supreme Court, Ira J. Kurzban, Edward F. Ramos, Jeffrey D. Kahn, Trina Realmuto

Faculty Journal Articles and Book Chapters

This brief argues that certain visa application denials, particularly those based on information originating from agencies other than the Department of State, can be qualitatively different from denials based on consular discretion. Although the end result looks the same – “Visa Denied” – denials based on database and watchlist information maintained in the United States by the Department of Homeland Security, the FBI, and other agencies, bear little resemblance to the traditional exercise of consular discretion because the specific information which requires the consular officer to deny these visas is usually not available for him or her to evaluate. Real …

The Private Causes Of Action Under Cercla: Navigating The Intersection Of Sections 107(A) And 113(F), Jeffrey M. Gaba

Faculty Journal Articles and Book Chapters

The Comprehensive Environmental, Response, Compensation, and Liability Act (CERCLA) provides three distinct “private” causes of action that allow parties to recover all or part of their cleanup costs from “potentially responsible parties.” Section 107(a)(1)(B) provides a “direct” right of cost recovery. Sections 113(f)(1) and 113(f)(3)(B) provide a right of contribution following a CERCLA civil action or certain judicial or administrative settlements. Determination of the appropriate cause of action has consequences for the standard of liability, the statute of limitations, and the protection afforded parties who settle with the government.

The relationship among these causes of action has been the source …

Patent Law Challenges For The Internet Of Things, W. Keith Robinson

Faculty Journal Articles and Book Chapters

In the near future, emerging technologies will allow billions of everyday devices to be connected via the Internet. This increasingly popular phenomenon is referred to as the Internet of Things (“IoT”). The IoT is broadly defined as technology that allows everyday devices to (1) become “smart” and (2) communicate with other smart devices. Estimates indicate that the market for smart devices, such as wearables, will grow to $70 billion dollars in the next ten years. Like many other emerging technologies, the entrepreneurs and companies developing these applications will seek patent protection for their inventions. In turn, the current U.S. patent …

Taking Another Look At Second-Look Sentencing, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

A historically unprecedented number of Americans are currently behind bars. Our high rate of incarceration, and the high bills that it generates for American taxpayers, has led to a number of proposals for sentencing reform. For example, bills were recently introduced in both the House and Senate that would roll back federal mandatory minimum sentences for certain drug offenders, and the Obama Administration has announced a plan to grant clemency to hundreds of non-violent drug offenders. Perhaps the most revolutionary proposal, though, is one advanced by the drafters of the Model Penal Code, namely that judges be given the power …

A Military Justice Solution In Search Of A Problem: A Response To Vladeck, Geoffrey S. Corn, Chris Jenks

Faculty Journal Articles and Book Chapters

In “Military Courts and Article III,” law professor Steve Vladeck proposes a wholesale replacement of the foundation upon which court-martial jurisdiction has stood since the inception of the United States. In an effort to provide a unifying theory grounded in international law, Professor Vladeck fails to properly distinguish the jurisdiction established by Congress to regulate the armed forces from the jurisdiction established to punish violations of the laws of war. This conflation yields confusion about military jurisdiction which ripples throughout the theory. Our response, which centers on courts-martial, argues that Professor Vladeck has offered a solution in search of a …

Legislative Responses To Patent Assertion Entities, David O. Taylor

Faculty Journal Articles and Book Chapters

While the existence of patent assertion entities is not new, in recent years they have proliferated, spawning debate concerning their impact on the patent system and, more broadly, on technological innovation. Despite the fear that they instill in their targets — or perhaps because of it — patent assertion entities arguably serve a beneficial purpose in the patent system. Theoretically they should be able to help individual inventors and small businesses, in particular, obtain a return on their investment in research and development. To the extent patent assertion entities assert patent claims that should be held invalid, not infringed, or …

Recent Developments In Intellectual Property Law — A 2014 Retrospective, David O. Taylor, W. Keith Robinson

Faculty Journal Articles and Book Chapters

The year 2014 was an eventful one for intellectual property law. Every branch of government affected intellectual property law in one way or another. The Supreme Court ruled on several important intellectual property law cases; federal and state legislatures contemplated and enacted various new statutes that changed the intellectual property law landscape; and the U.S. Patent and Trademark Office continued to implement new procedures governing the issuance and reconsideration of intellectual property rights. These events captured the consciousness of the American public and garnered significant media attention, more so than any year in recent memory. As these events proved, technological …

Patent Stewardship, Choice Of Law, And Weighing Competing Interests, David O. Taylor

Faculty Journal Articles and Book Chapters

Xuan-Thao Nguyen’s recent article, "In the Name of Patent Stewardship: The Federal Circuit’s Overreach into Commercial Law", is important for at least two potential reasons that Nguyen herself highlights. First, to the extent that the Federal Circuit’s decisions related to commercial law differ from state courts’ decisions related to commercial law, it might call into question the Federal Circuit’s competency with respect to commercial law. And, second, it certainly highlights something that practitioners might need to know to adapt their advice and strategies for reaching their clients’ desired ends. But Nguyen’s critique is important for a third reason. Assuming the …

State Labs Of Federalism And Law Enforcement 'Drone' Use, Chris Jenks

Faculty Journal Articles and Book Chapters

This article reviews and assesses current state legislation regulating law enforcement use of unmanned aerial systems (UAS). The legislation runs the gamut of permissive to restrictive and even utilizes different terms for the same object of regulation, UAS. These laws are the confused and at times even contradictory extension of societal views about UAS. The article reviews the U.S. Supreme Court’s manned aircraft trilogy of cases, California v. Ciraolo, Florida v. Riley, and Dow Chemical v. U.S. and two significant technology based decisions, Kyllo v. U.S. and U.S. v. Jones, and applies them to current state efforts to regulate law …

Sentencing Complexities In National Security Cases, Chris Jenks

Faculty Journal Articles and Book Chapters

Military national security courts-martial infrequently occur. When they do occur, military counsel, judges, and court personnel endeavor to perform their function at a high level. Unfortunately, the process by which the U.S. government conducts classification reviews and the military’s inexperience in national security cases often results in the form of safeguarding classified information trumping the substantive function of the underlying trial process. And by the time the sentencing phase is reached, understandable but unfortunate focus is placed on simply concluding the trial without mishandling classified information.

This article examines the sentencing complexities in military national security cases, first defining a …

Self-Interest Or Self-Inflicted? How The United States Charges Its Service Members For Violating The Laws Of War, Chris Jenks

Faculty Journal Articles and Book Chapters

This chapter explores the aspects of self-interest implicated by the US military prosecuting its own service members who violate the laws of war under different criminal charges than it prosecutes enemy belligerents who commit substantially similar offences. The chapter briefly explains how the US asserts criminal jurisdiction over its service members before turning to how the US military reports violations of the laws of war. It then sets out the US methodology for charging such violations as applied to its service members, and compares this methodology to that applied to those tried by military commissions. The chapter then discusses the …

Economic Theory, Divided Infringement And Enforcing Interactive Patents, W. Keith Robinson

Faculty Journal Articles and Book Chapters

High tech companies – especially in the emerging areas of the Internet of Things, wearable devices, and personalized medicine – have found it difficult to enforce their patents on interactive technologies. This is especially true when multiple parties combine to perform all of the steps of a claimed method. This problem is referred to as joint or divided infringement, and some commentators advocate that “interactive” patents susceptible to divided infringement should not be enforced.

In contrast, this article argues that economic theory supports the enforcement of interactive patents. Previous papers have analyzed divided infringement problems from a doctrinal and policy …

Recent Developments In Intellectual Property Law — A 2014 Retrospective, W. Keith Robinson

Faculty Journal Articles and Book Chapters

The year 2014 was an eventful one for intellectual property law. Every branch of government affected intellectual property law in one way or another. The Supreme Court ruled on several important intellectual property law cases; federal and state legislatures contemplated and enacted various new statutes that changed the intellectual property law landscape; and the U.S. Patent and Trademark Office continued to implement new procedures governing the issuance and reconsideration of intellectual property rights. These events captured the consciousness of the American public and garnered significant media attention, more so than any year in recent memory. As these events proved, technological …

Science And The New Rehabilitation, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

Rehabilitation’s making a comeback. Long thought to be an outdated approach to punishment, rehabilitation is reemerging in the wake of scientific advances. Not only have these advances in the fields of pharmacology, genetics, and neuroscience brought new rehabilitative possibilities, but the media’s communication of these advances to the general public have set the stage for rehabilitation’s reprise. The media constantly pummels the general public with reports of scientific breakthroughs like functional magnetic resonance imaging, prepping the public to be more accepting of deterministic viewpoints and to be more open to the possibility of transforming individuals. The rehabilitation that is emerging, …

Sentencing Complexities In National Security Cases, Chris Jenks

Faculty Journal Articles and Book Chapters

Military national security courts-martial infrequently occur. When they do occur, military counsel, judges, and court personnel endeavor to perform their function at a high level. Unfortunately, the process by which the U.S. government conducts classification reviews and the military’s inexperience in national security cases often results in the form of safeguarding classified information trumping the substantive function of the underlying trial process. And by the time the sentencing phase is reached, understandable but unfortunate focus is placed on simply concluding the trial without mishandling classified information.

This article examines the sentencing complexities in military national security cases, first defining a …

United Nations Peace Operations: Creating Space For Peace, Chris Jenks

Faculty Journal Articles and Book Chapters

Despite over 120 countries contributing over 118,00 personnel in support of sixteen different United Nations peace operations around the world, and at a cost exceeding $US 7.83 billion, not much is known about these operations. This chapter seeks to alter, however slightly, that information deficit. This chapter first reviews the UN Charter basis for peace operations and explores the different between Chapter VI Peacekeeping and Chapter VII Peace Enforcement. The chapter then traces the historical development of peace operations from their cold war origins to the latest organizational structure within the U.N.’s Department of Peacekeeping Operations. The chapter then explores …

Law And Development In West And Central Africa (Ohada), Peter Winship

Faculty Journal Articles and Book Chapters

This seminar paper considers whether OHADA - an experiment in unifying business law in African countries - has been a success. Following a prologue that explains the origins of the paper, the first part of the paper sets out basic information about the Organisation pour l’Harmonisation du Droit des Affaires en Afrique (“Organization for the Harmonization of Business Law in Africa,” known by the acronym OHADA). This part is followed by a review of law and development literature to assess the value of this literature for an evaluation of the success (or not) of OHADA. A third part then focuses …

Moving Forward, Looking Back: A Retrospective On Sexual Harassment Law, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

The fiftieth anniversary of Title VII provides an appropriate occasion to look back to an era when women suffered sexual abuse in the workplace (and many other places) with no possible recourse. Once feminist writers and litigators connected the dots, judges came to understand that a broad mandate to end sex discrimination had to include a mandate to eliminate sexual harassment at work. The decades that followed saw the step-by-step construction of a doctrine that ostensibly protects employees from unwanted sexual behavior at work.

In this symposium issue the author examines the impact of sexual harassment law citing several court …

Cherokee Freedmen And The Color Of Belonging, Lolita Buckner Inniss

Faculty Journal Articles and Book Chapters

This article addresses the Cherokee tribe and their historic conflict with the descendants of their former black slaves, designated Cherokee Freedmen. This article specifically addresses how historic discussions of black, red and white skin colors, designating the African-ancestored, aboriginal (Native American) and European-ancestored people of the United States, have helped to shape the contours of color-based national belonging among the Cherokee. This article also suggests that Homi K. Bhabha’s notion of postcolonial mimicry offers a potent source for analyzing the Cherokee’s historic use of skin color as a marker of Cherokee membership. The Cherokee past practice of black slavery and …

Post-Kiobel Procedure: Subject Matter Jurisdiction Or Prescriptive Jurisdiction?, Anthony J. Colangelo, Christopher R. Knight

Faculty Journal Articles and Book Chapters

This essay evaluates whether Alien Tort Statute (ATS) cases involving foreign elements raise questions of prescriptive jurisdiction or subject matter jurisdiction after the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum. It concludes that the lower court trend treats Kiobel as going to subject matter jurisdiction, and that this trend is probably correct. It would have been helpful for the Supreme Court to clearly provide guidance on this question — which has major doctrinal and procedural consequences for the law and litigants. The procedural implications of viewing challenges based on Kiobel as going to judicial subject matter jurisdiction are …

The Hague Principles, The Cisg, And The 'Battle Of Forms', Peter Winship

Faculty Journal Articles and Book Chapters

This paper considers the relation of the Hague Principles on Choice of Law in International Commercial Contracts to the United Nations Convention on Contracts for the International Sale of Goods (CISG) when parties to an international contract of sales refer during negotiations to their standard terms and these standard terms include choice-of-law terms that conflict.

Family Law's Loose Cannon Book Review, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

No abstract provided.

Firearm Regionalism And Public Carry: Placing Southern Antebellum Case Law In Context, Eric Ruben, Saul A. Cornell

Faculty Journal Articles and Book Chapters

In recent years, following the Supreme Court’s landmark originalist opinion in District of Columbia v. Heller, courts have been asked to strike down restrictions on the public carrying of handguns on the basis of the original understanding of the Second Amendment. One of the key sources used to justify this outcome is a family of opinions from the antebellum South asserting an expansive right to carry weapons in public. In this essay we explore whether that body of case law reflected a national consensus on the meaning of the right to bear arms or, in the alternative, a narrower regional …

Me And Mr. Jones: A Systems-Based Analysis Of A Catastrophic Defense Outcome, Pamela R. Metzger

Faculty Journal Articles and Book Chapters

Leo S. Jones spent four months in jail, accused of a probation that had long since expired. His incarceration was illegal. It was also preventable.

In this essay, I describe the unique data collection project that identified Mr. Jones’ case. Then, I analyze the various individual, institutional, and systemic practices that contributed to Mr. Jones’ illegal incarceration. I show how an investigation of Mr. Jones’ case led to the discovery of widespread latent errors that may have adversely affected innumerable other detainees. I conclude by explaining what this case reveals about how data collection and analysis can improve public defender …

Public-Private Financed Road Infrastructure Development In North-Central Region Of Nigeria, Adamu Mudi, John S. Lowe, David Manase

Faculty Journal Articles and Book Chapters

The development and provision of road infrastructure in Nigeria has primarily been through the traditional forms of procurement strategies by the federal, state and local governments through budgetary allocations and door-financed loans and grants this thereby leaves the Nigerian road sector in a precarious situation. In recent time, with the demand for more road infrastructure arising from the population explosion and urban-ruralmigration coupled with the financial crisis experienced by the Federal Government resulting from globaleconomic and financial crisis the Federal Government of Nigeria therefore sought to involve the private sectors in the development of road infrastructure facilities via Public-Private Partnerships …

Pennoyer Strikes Back: Personal Jurisdiction In A Global Age, William V. Dorsaneo Iii

Faculty Journal Articles and Book Chapters

The primary purpose of this Article is to evaluate the four most recent Supreme Court decisions on personal jurisdiction and situate those decisions within the history of Supreme Court personal jurisdiction jurisprudence. Starting with the seminal case of Pennoyer v. Neff, personal jurisdiction jurisprudence has been remarkably kaleidoscopic,with the Supreme Court intervening at various intervals to redefine the law in broad strokes, while zigzagging from one doctrinal position to another and thereby leaving lower courts to hash out the application of an evolving personal jurisdiction doctrine to varying fact patterns. I will divide this jurisprudential history into two main groups …

Agency Publicity In The Internet Era, Nathan Cortez

Faculty Journal Articles and Book Chapters

This Report, prepared for the Administrative Conference of the United States (ACUS), details how federal agencies use modern forms of publicity - including press releases, agency web sites, searchable online databases, and social media - to achieve regulatory ends. It evaluates the benefits and burdens of modern agency publicity practices, using three agencies as case studies: the Food and Drug Administration (FDA); the Federal Trade Commission (FTC); and the Consumer Financial Protection Bureau (CFPB). Part V recommends a series of largely procedural reforms that balance the need for public disclosure with the need to protect those potentially injured by adverse …

Taxing The Cloud, Orly Mazur

Faculty Journal Articles and Book Chapters

Transacting business in the “cloud” has quickly gained popularity worldwide as the new method of providing information technology resources. Instead of purchasing or downloading software, we can now use the Internet to access software and other fundamental computing resources located on remote computer networks operated by third parties. These transactions offer companies lower operating costs, increased scalability and improved reliability, but also give rise to a host of international tax issues. Despite the rapid growth and prevalent use of cloud computing, U.S. taxation of international cloud computing transactions has yet to receive significant scholarly attention. This Article seeks to fill …

Defending Data, Pamela R. Metzger

Faculty Journal Articles and Book Chapters

Defending Data proposes a data-driven, systems-based approach to improving public defense in America.

Public defenders represent millions of defendants every year. Yet, public defense remains a largely data-less enterprise, a black box of discretionary decisions disconnected from any systemic analysis about the relationship between defender practices and case outcomes. Defending Data adopts a novel approach to the crisis of public defense. Building off of the successful implementation of system-based approaches in other complex, high-risk industries such as aviation and medicine, Defending Data explains how defenders can develop a data-driven systems approach to public defense.

Defending Data begins by describing the …

Introduction To Amici Curiae Brief In Young V. United Parcel Service, Inc., Joanna L. Grossman, Deborah L. Brake

Faculty Journal Articles and Book Chapters

On March 25, 2015, the U.S. Supreme Court issued its decision in Young v. United Parcel Service, Inc., the most important pregnancy discrimination case before the Court in nearly a quarter century. The Court ruled for Peggy Young in a decision that will chart the path of pregnancy discrimination litigation for years to come. Our brief, published here with a short introduction, lays out our theory for why an employer’s refusal to accommodate pregnancy with light-duty assignments on the same terms as other medical conditions similarly affecting work violates Title VII and the Pregnancy Discrimination Act. The brief was …