Law Commons^™

Rural Wind Windfalls, K.K. Duvivier

Sturm College of Law: Faculty Scholarship

Wind power can provide rural communities with unexpected gains or “windfalls.” As one North Dakota farmer put it, “Who could have guessed that the air above our land might be worth money someday?” According to the National Renewable Energy Laboratory (NREL), the amount of installed wind electricity capacity in the United States increased by a factor of 25 between 2000 and 2012. The United States is second, behind only China, for the most wind electricity capacity in the world. In 2012, Kansas more than doubled its installed wind capacity by adding 1,441 MW to the 1,272 MW installed before that …

Sins Of The Father, K.K. Duvivier

Sturm College of Law: Faculty Scholarship

Are the sins of previous generations of energy development, such as with oil and gas, being visited on the newest forms of energy? That is the question this article attempts to address. Specifically, this article will focus on the problems created by the severance of the mineral estate from the surface and the related dominant mineral–servient surface estate doctrine. Hydrofracturing or “fracking” for oil and natural gas has placed the problems of split estates in the spotlight more than they been in generations. People have been shocked to find drill rigs in their backyards, school playgrounds, and parks. They have …

Solar Skyspace B, K.K. Duvivier

Sturm College of Law: Faculty Scholarship

The cleanest source of electricity is that generated from photovoltaic solar panels (PV). Unlike fossil fuels, PV does not require extraction and does not burn, so it emits no carbon. Unlike hydropower, it does not require the damming of natural rivers and the destruction of upstream areas through flooding. Unlike industrial-scale concentrating solar thermo-electric power, it does not consume water to generate electricity. Finally, when placed on existing rooftops in developed areas, distributed solar PV does not require long-term dedication of public lands to an industrial use, does not disrupt native habitat (a potential problem with all of other energy …

Double Reasonableness And The Fourth Amendment, Sam Kamin, Justin F. Marceau

Sturm College of Law: Faculty Scholarship

Recently the Supreme Court has placed new limits on both the substance of the Fourth Amendment and the exclusionary that serves as the principal remedy for Fourth Amendment violations. In this Article we briefly summarize these limitations and then argue that the curtailment of the exclusionary rule has the potential to ameliorate substantive Fourth Amendment doctrine. The limited reach of the modern exclusionary rule provides the Court with license to develop an expansive new substantive framework free of the specter of a correspondingly expansive remedial framework.

One point on which nearly all jurists and commentators agree is that current Fourth …

The Jewish Law Firm: Past And Present, Eli Wald

Sturm College of Law: Faculty Scholarship

The rise and growth of large Jewish law firms in New York City during the second half of the twentieth century was nothing short of an astounding success story. As late as 1950, there was not a single large Jewish law firm in town. By the mid-1960s, six of the largest twenty law firms were Jewish, and by 1980, four of the largest ten prestigious law firms were Jewish firms. Moreover, the accomplishment of the Jewish firms is especially striking because, while the traditional large White Anglo-Saxon Protestant law firms grew at a fast rate during this period, the Jewish …

Unpermitted Urban Agriculture: Transgressive Actions, Changing Norms, And The Local Food Movement, Sarah Schindler

Sturm College of Law: Faculty Scholarship

Roberta keeps four chickens in her backyard. Bob snuck onto the vacant lot next door, which the bank foreclosed upon and now owns, and planted a vegetable garden. Vien operates an occasional underground restaurant from his friends' microbrewery after beer-making operations cease for the day. The common thread tying these actions together is that they are unauthorized; they are being undertaken in violation of existing laws and often norms. In this Article, I explore ideas surrounding the overlap between food policy and land use law, specifically the transgressive actions that people living in urban and suburban communities are undertaking to …

When The Aba Comes Calling, Let’S Speak The Same Language Of Assessment, David I.C. Thomson

Sturm College of Law: Faculty Scholarship

There has been much discussion recently in legal education circles about the need for improvements in assessment. Recently, the American Bar Association has responded by adding an assessment requirement to the accreditation standards, making the subject even more urgent. Because most of us in the legal academy are new to the language and methods of assessment, there have been misunderstandings. And further, because there are different levels of assessment and each level usually has different goals, sometimes the discussion can become confused. It is imperative that we understand the different levels and goals of assessment projects, so we may communicate …

The M Word, Tamara L. Kuennen

Sturm College of Law: Faculty Scholarship

The push to incorporate mindfulness into the practice of law is gaining traction. Defined as "paying attention, on purpose, to the present moment, non-judgmentally," mindfulness can be both a state of being (a reaction to a given situation or moment in time as a calm observer of what is happening within it) as well as a trait of being (a larger approach to all of life's moments; a perspective). This Idea more fully defines mindfulness and its value to the practice and teaching of law, and it shows how clinical law professors in particular have embraced mindfulness as a core …

Love Matters, Tamara L. Kuennen

Sturm College of Law: Faculty Scholarship

Love matters to women in abusive relationships. Consequently, matters of love should mean something to both the legal regime redressing intimate partner violence (“IPV”) and to feminist legal scholars seeking to reform the same. Currently the law ignores matters of love by conditioning legal remedies on the immediate termination of the intimate relationship by the victim. Feminist legal scholars unwittingly ignore love by failing to be sufficiently specific about the type of abuse we most wish to eradicate: coercive control. This is a pattern of acts—both violent and nonviolent—in which one partner seeks to control and dominate the personhood and …

Democratic Deliberation And The Ethical Review Of Human Subjects Research, Govind Persad

Sturm College of Law: Faculty Scholarship

In the United States, the Presidential Commission for the Study of Bioethical Issues has proposed deliberative democracy as an approach for dealing with ethical issues surrounding synthetic biology. Deliberative democracy might similarly help us as we update the regulation of human subjects research. This paper considers how the values that deliberative democratic engagement aims to realize can be realized in a human subjects research context. Deliberative democracy is characterized by an ongoing exchange of ideas between participants, and an effort to justify decisions that bind participants by appeal to reasons that the participants can understand and share. Even when unanimous …

Libertarian Patriarchalism: Nudges, Procedural Roadblocks, And Reproductive Choice, Govind Persad

Sturm College of Law: Faculty Scholarship

Cass Sunstein and Richard Thaler's proposal that social and legal institutions should steer individuals toward some options and away from others-a stance they dub "libertarian paternalism"-has provoked much high-level discussion in both academic and policy settings. Sunstein and Thaler believe that steering, or "nudging," individuals is easier to justify than the bans or mandates that traditional paternalism involves. This Article considers the connection between libertarian paternalism and the regulation of reproductive choice. I first discuss the use of nudges to discourage women from exercising their right to choose an abortion, or from becoming or remaining pregnant. I then argue that …

When, And How, Should Cognitive Bias Matter To Law, Govind Persad

Sturm College of Law: Faculty Scholarship

Recent work in the behavioral sciences asserts that we are subject to a variety of cognitive biases. For example, we mourn losses more than we prize equivalently sized gains; we are more inclined to believe something if it matches our previous beliefs; and we even relate more warmly or coldly to others depending on whether the coffee cup we are holding is warm or cold. Drawing on this work, case law and legal scholarship have asserted that we have reason to select legal norms, or revise existing norms, so as to eliminate the influence of these and other cognitive biases. …

The Compact Clause And National Popular Vote: Implications For The Federal Structure, Robert M. Hardaway, Tara Ross

Sturm College of Law: Faculty Scholarship

The Electoral College is a vital part of the Founders' federalist Constitution. NPV pretends to be in line with this federalist structure, but its claims are disingenuous. In reality, NPV would destroy the federalist nature of the presidential election process. A system that today operates as a combination of democracy and federalism would change: It would instead operate as pure democracy. This change from federalism to pure democracy would be made even if a majority of states disapproved. As a policy matter, eliminating federalism from the presidential election process will have many practical consequences that make such a change inadvisable. …

As The World Welcomes Its Seven Billionth Human: Reflections And Population, Law, And The Environment, Robert M. Hardaway

Sturm College of Law: Faculty Scholarship

No abstract provided.

The Lock-In Effect Of Preliminary Injunctions, Kevin J. Lynch

Sturm College of Law: Faculty Scholarship

Judges suffer from the same cognitive biases that afflict the rest of us. Judges use shortcuts to help them deal with the uncertainty and time pressure inherent in the judicial process. Judges should be aware of the conditions when those shortcuts lead to systemic biases in decision-making, and adjust legal standards in order to reduce or avoid such bias altogether.

One important bias that has been identified by economists and psychologists is the lock-in effect. The lock-in effect causes a decision-maker who must revisit an earlier decision to be locked-in to the earlier decision. The effect is particularly pronounced where …

Banning Lawns, Sarah Schindler

Sturm College of Law: Faculty Scholarship

Recognizing their role in sustainability efforts, many local governments are enacting climate change plans, mandatory green building ordinances, and sustainable procurement policies. But thus far, local governments have largely ignored one of the most pervasive threats to sustainability — lawns. This Article examines the trend toward sustainability mandates by considering the implications of a ban on lawns, the single largest irrigated crop in the United States. Green yards are deeply seated in the American ethos of the sanctity of the single-family home. However, this psychological attachment to lawns results in significant environmental harms: conventional turfgrass is a non-native monocrop that …

Naturalizing Immigration Imprisonment, César Cuauhtémoc García Hernández

Sturm College of Law: Faculty Scholarship

Only recently has imprisonment become a central feature of both t across every level of government and involving civil and criminal law enforcement tools.

Examining the population as a whole provides crucial insights as to how we arrived at this state of mass immigration imprisonment. While political motivations — parallel to those that fueled the rapid expansion of criminal mass incarceration — may have started the trend, this Article demonstrates that key legal and policy choices explain how imprisonment has become an entrenched feature of immigration law enforcement. In fact, legislators and immigration officials have locked themselves into this choice, …

Patent Imperialism, Bernard Chao

Sturm College of Law: Faculty Scholarship

With a few narrow exceptions, U.S. patent law concerns itself with activity that either occurs within this country’s borders or crosses its borders. In the typical case, that means that a patentee can recover lost profits or reasonable royalties based on the domestic sales of infringing products. However, patentees have begun to successfully advance a new and creative approach that this Essay labels the “worldwide causation” theory. So long as some domestic infringement can be said to cause sales overseas, patentees argue that there should be no territorial limitation on their recovery, allowing recovery for damages suffered anywhere in the …

The Infringement Continuum, Bernard Chao

Sturm College of Law: Faculty Scholarship

For many years, patent law has struggled with the issue of permissible claim scope. A patent’s specification and its claims often suffer from a surprising disconnect. The specification generally describes an invention in terms of one or more specific implementations, suggesting a relatively narrow invention. But claims are drafted far more broadly. They frequently encompass unforeseen variations and even cover after-arising technology.

Although there are numerous existing doctrines that try to prevent claims from straying too far from their specification, these doctrines offer binary outcomes ill suited for patent law. Under these doctrines, as a claim encompasses subject matter further …

A Case Study Of Patent Litigation Transparency, Bernard Chao, Derigan Silver

Sturm College of Law: Faculty Scholarship

By focusing on a single high profile patent case, Monsanto v. DuPont, this article explores the problem of transparency in patent litigation from two perspectives. First, this article provides metrics for understanding the nature and quantity of documents that were filed under seal in the Monsanto case. Second, this article scrutinizes particular aspects of the case to provide a more nuanced understanding of what the public cannot see. Although primarily descriptive, this article critically analyzes the sealing of so many documents by questioning the level of judicial oversight applied in decisions to seal court filings. It then goes on to …

Analyzing Carnegie’S Reach: The Contingent Nature Of Innovation, Stephen Daniels, Martin J. Katz, William Sullivan

Sturm College of Law: Faculty Scholarship

Our interest is curricular innovation, with a focus on the recommendations of the 2007 Carnegie report – Educating Lawyers. Recognizing that meaningful reform requires an institutional commitment, our interest also includes initiatives in the areas of faculty development and faculty incentive structure that would support curricular innovation. Additionally, we are curious as to what might explain change and whether certain school characteristics will do so or whether external factors that challenge legal education offer an explanation. To explore these issues we surveyed law schools (a 60.5% response rate). The results show that while there is much activity in the area …

Trading With Foreigners: An Interdisciplinary Analysis Of China’S Core Interests In Trade And Foreign Policy, Phoenix X.F. Cai

Sturm College of Law: Faculty Scholarship

This article takes an interdisciplinary approach by drawing on political science, international relations, and legal global governance literatures to explain how China’s foreign policy impacts and guides its trade policy, which is manifested in the three core interests. The article makes the case that the core interest analysis holds promising explicative, predictive, persuasive, and coalition-building value in the arenas of global trade policy and dispute settlement.

This article proceeds in five main parts. Part II traces the contours of China’s three core interests in action, both in the domestic and international spheres. While not purporting to be exhaustive, it takes …