Law Commons^™

Reverse Engineering Ip, Tonya M. Evans

Marquette Intellectual Property Law Review

With the advent of the Internet and digital technology, the twenty-first century has ushered in a quantum increase in the ways to create, disseminate, and commercially exploit creativity. Digital technology allows anyone to create perfect digital copies of protected works in the comfort of their homes and to distribute them to tens, hundreds, thousands, and even millions of people with the click of a hyperlink via a handheld device. Indeed, copyright touches more ordinary people in substantial ways in this age of information than at any other time in American copyright history. READ MORE, download the article.

The Immorality Of Strict Liability In Copyright, Steven Hetcher

Marquette Intellectual Property Law Review

I will argue for a fundamental reconceptualization of liability for copyright infringement. Specifically, I will argue that the essentially unchallenged orthodoxy that copyright infringement is a strict liability tort is false. From the Supreme Court on down, it does not even appear to be questioned that copyright infringement applies a strict liability standard. Upon reflection, this is peculiar, given that this is anything but an innocuous doctrine. It is just the opposite; it is a doctrine that strongly favors copyright owners who may more easily prevail in infringement suits, as it will always be easier to establish strict liability as …

The End Of Ownership?, Donald F. Jankowski Ii

Marquette Intellectual Property Law Review

Imagine for a moment that you are in the market for a new car. You find a sports car that you like, talk with a salesperson and ultimately purchase a new automobile. This car is effectively the same as thousands of other cars. It is a copy. You were not under the impression that you were buying the rights to the design of the car or to reproduce the car to the exact specifications as your own copy. However, you believe that you can do with this car what you will. You can put bigger wheels on it, put stickers …

Free Fashion, Ashley M. Marshall

Marquette Intellectual Property Law Review

Our current vision of fashion is viewed as a shared art form that may be enjoyed by all social classes. Fashion encourages a melting pot of collaboration from people that are influenced by creativity. At its core, fashion is innovative and it inspires people to foster that same self-expressive conduit. Traditionally, fashion was a privilege and greatly restricted from certain classes. Indeed, Georg Simmel has proposed that in an open class society, the high class seeks to distinguish itself by adorning distinctive forms of dress, and in turn, the middle class adopts this form of dress to identify with the …

Beneficiaries Of Misconduct: A Direct Approach To It Theft, Andrew F. Popper

Marquette Intellectual Property Law Review

Almost a century ago, the United States Supreme Court declared that the prohibition against unfair competition serves to protect fundamental values and important rights. “[T]he right to acquire property by honest labor or the conduct of a lawful business is as much entitled to protection as the right to guard property already acquired. It is this right that furnishes the basis of the jurisdiction . . . of unfair competition.” The idea is simple: it is unfair to competitors and inconsistent with basic notions of market competition to allow market actors to steal the work or property of another and …

The National Institutes Of Health, Patents, And The Public Interest: An Expanded Rationale Of Justice Breyer’S Dissent In Stanford V. Roche, Nida Shakir

Marquette Intellectual Property Law Review

In February 2010, the Alzheimer’s Institute of America (AIA) filed a patent infringement lawsuit against Jackson Laboratory, the largest repository of research mice in the world. AIA sued Jackson Laboratory for infringing on AIA’s patent covering a DNA mutation linked to Alzheimer’s disease. Jackson Lab allegedly violated that patent by distributing mice especially bred for Alzheimer’s research. READ MORE, download the article.

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Marquette Intellectual Property Law Review

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Copyright, Competition, And The First English-Language Translations Of Les Misérables (1862), Michael H. Hoffheimer

Marquette Intellectual Property Law Review

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International Intellectual Property Scholars Series: A Fundamental Critique Of The Law-And-Economics Analysis Of Intellectual Property Rights, Andreas Rahmatian

Marquette Intellectual Property Law Review

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International Intellectual Property Scholars Series: European Union Patents: A Mission Impossible? An Assessment Of The Historical And Current Approaches, Mauricio Troncoso

Marquette Intellectual Property Law Review

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Federal Circuit V. Ninth Circuit: A Split Over The Conflicting Approaches To Dmca Section 1201, Robert Arthur

Marquette Intellectual Property Law Review

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Copyrightable Works In The Undergraduate Student Context: An Examination Of The Issues, Lisamarie A. Collins

Marquette Intellectual Property Law Review

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Eyes Wide Shut: Induced Patent Infringement And The Willful Blindness Standard, Kristin M. Hagen

Marquette Intellectual Property Law Review

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Internet Outlaws: Knowingly Placing Ads On Parked Domain Names Invokes Contributory Trademark Liability, Ariane C. Strombom

Marquette Intellectual Property Law Review

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Marquette Intellectual Property Law Review

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Marquette Sports Law Review

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Book Review: (The History Of) Criminal Justice As A Morality Play, Michael M. O'Hear

Faculty Publications

Stephanos Bibas's new book, The Machinery of Justice, looks back to colonial-era criminal justice as an ideal of sorts. Criminal trials in that time were a "participatory morality play," in which ordinary members of the community played a crucial role. In Bibas's view, the subsequent professionalization of the criminal-justice system, as well as related developments like the introduction of plea bargaining, have led to widespread contemporary distrust of the system. The present essay reviews Bibas's book and suggests additional reasons besides professionalization why the morality-play model broke down in the nineteenth century. Taking these additional considerations into account, the prospects …

Contested Shore: Property Rights In Reclaimed Land And The Battle For Streeterville, Joseph D. Kearney, Thomas W. Merrill

Faculty Publications

Land reclaimed from navigable waters is a resource uniquely susceptible to conflict. The multiple reasons for this include traditional hostility to interference with navigable waterways and the weakness of rights in submerged land. In Illinois, title to land reclaimed from Lake Michigan was further clouded by a shift in judicial understanding in the late nineteenth century about who owned the submerged land, starting with an assumption of private ownership but eventually embracing state ownership. The potential for such legal uncertainty to produce conflict is vividly illustrated by the history of the area of Chicago known as Streeterville, the area of …

Limitations (A Response To Judge Posner), Chad M. Oldfather

Faculty Publications

In his article Judicial Opinions and Appellate Advocacy in Federal Courts - One Judge's Views, Judge Richard Posner urges his judicial colleagues to be mindful of their limitations ­- the limitations of his knowledge of the law, the limitations of his knowledge of the case at hand, the limitations of his knowledge of the real-world context of the case, and the limitations (or distortions) of his thinking that result from the biases that all judges bring to judging.

This essay, part of a symposium devoted to Judge Posner's article, seeks both to amplify this insight, in part by suggesting that …

Legislative Diplomacy, Ryan M. Scoville

Faculty Publications

A traditional view in legal scholarship holds that the Constitution assigns to the President an exclusive power to carry on official diplomatic communications with foreign governments. But in fact, Congress and its membership routinely engage in communications of their own. Congress, for example, receives heads of state and maintains official contacts with foreign legislatures. And members of the House and Senate frequently travel overseas on congressional delegations, or “CODELs,” to confer with foreign leaders, investigate problems that arise, promote the interests of the United States and constituents, and even represent the President. Moreover, many of these activities have occurred ever …

Two Cheers For The New Paradigm, Michael M. O'Hear

Faculty Publications

This brief essay comments on Attorney General Eric Holder's much-publicized announcement in 2013 of new federal prosecution priorities. While Holder's announcement represents a welcome shift away from the rigid legalism that has dominated federal prosecutorial policies for a generation, some concerns are also highlighted in the essay.

Mass Incarceration In Three Midwestern States: Origins And Trends, Michael M. O'Hear

Faculty Publications

This Article considers how the mass incarceration story has played out over the past forty years in three medium-sized, Midwestern states, Indiana, Minnesota, and Wisconsin. The three stories are similar in many respects, but notable differences are also apparent. For instance, Minnesota’s imprisonment rate is less than half that of the other two states, while Indiana imprisons more than twice as many drug offenders as either of its peers. The Article seeks to unpack these and other imprisonment trends and to relate them to crime and arrest data over time, focusing particularly on the relative importance of violent crime and …

Not Just Kid Stuff? Extending Graham And Miller To Adults, Michael M. O'Hear

Faculty Publications

The United States Supreme Court has recently recognized new constitutional limitations on the use of life-without-parole (LWOP) sentences for juvenile offenders, but has not clearly indicated whether analogous limitations apply to the sentencing of adults. However, the Court’s treatment of LWOP as a qualitatively different and intrinsically more troubling punishment than any other sentence of incarceration does provide a plausible basis for adults to challenge their LWOP sentences, particularly when they have been imposed for nonviolent offenses or on a mandatory basis. At the same time, the Court’s Eighth Amendment reasoning suggests some reluctance to overturn sentencing practices that are …

Out Of The Shadows: Requiring Strategic Management Disclosure, Nadelle Grossman

Faculty Publications

One of the central goals of federal securities laws is to protect investors by ensuring that they receive a steady flow of timely, complete, and accurate information. However, that goal is partially undermined by the SEC’s failure to require public companies to disclose anything about their strategic management processes despite increasing requirements on the disclosure of associated risk management processes. Like risk management processes, strategic management processes are designed to create firm value. But instead of focusing on loss-creating risks, strategic management focuses on wealth-creating opportunities. As a result, investors are given a lopsided — rather than a complete or …

Racial Bias In American Foster Care: The National Debate, Tanya A. Cooper

Marquette Law Review

In disproportionately high numbers, Native American and African American children find themselves in the American foster care system. Empirical data establish that these children are removed from their families at greater rates than other races and stay in foster care longer, where they are often abused, neglected, and then severed from their families forever. For the past few decades, a vigorous debate has raged regarding whether these children are actually at greater risk for maltreatment if left at home or are just targets of discrimination in a hegemonic institution. Although the research previously showed no racial differences in child maltreatment …

A Snitch In Time: An Historical Sketch Of Black Informing During Slavery, Andrea L. Dennis

Marquette Law Review

Although potentially offering the benefits of crime control and sentence reduction, some Blacks are convinced that cooperation with criminal investigations and prosecutions should be avoided. One factor contributing to this perspective is America’s reliance on Black informants to police and socially control Blacks during slavery, the Civil Rights Movement, and the Wars on Drugs, Crime, and Gangs. Notwithstanding this historical justification for non-cooperation, only a few informant law and policy scholars have examined closely the Black community’s relationship with informing. Furthermore, even among this small group, noticeably absent are historical explorations of Black America’s experience with informing during slavery. Drawn …

Diy Urbanism: Property And Process In Grassroots City Building, Celeste Pagano

Marquette Law Review

In recent years, a range of grassroots interventions have claimed and shaped the use of urban space. Community gardens, unsanctioned public art, temporary crosswalks, miniature lending libraries—these projects and more have been termed “guerrilla urbanism,” “tactical urbanism,” or “insurgent uses of public space.” I choose the term “DIY” or “Do-It- Yourself” urbanism to describe these phenomena in order to emphasize their bottom-up and often ad hoc nature. Accomplishing a variety of aims and existing on a fluid spectrum of legality, DIY urbanist interventions share in common an orientation toward community engagement in changing the use of common urban space.

This …

Just Punch My Bankruptcy Ticket: A Qualitative Study Of Mandatory Debtor Financial Education, Michael Sousa

Marquette Law Review

When Congress amended the Bankruptcy Code in 2005 through the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), it mandated that individual consumer debtors undergo two debtor education courses, one as a condition precedent to filing for bankruptcy relief, and a second for later receiving a discharge of indebtedness. As for the pre-filing credit counseling course, Congressional aim was to have prospective debtors understand the potential alternatives to filing for bankruptcy relief with the goal of having some percentage of debtors settle their debt obligations outside of the bankruptcy system. Regarding the post-filing financial management course, Congress wanted debtors who …

Making The Right Call: Why Fairness Requires Independent Appeals In U.S. Professional Sports Leagues, Jeremy R. Abrams

Marquette Law Review

Historically, the commissioners of the U.S. professional sports league have had a duty to preserve the integrity of the leagues. Developing from this concept through collective bargaining between the leagues and players’ associations, the disciplinary systems of the leagues are designed to keep conflicts out of the U.S. courts. Recently, these systems have come under considerable public scrutiny questioning their fairness and effectiveness and, in some cases, the integrity of the commissioners and sports. Specifically, there have been issues with conflict of interest of the commissioners and arbitrary decision-making in disciplining players. This Comment explores the disciplinary systems of the …

Sports Law In Law Reviews And Journals, Kyle M. Tompkins

Marquette Sports Law Review

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