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Articles 541 - 570 of 7364
Full-Text Articles in Law
Patent Law’S Deference Paradox, Paul R. Gugliuzza
Patent Law’S Deference Paradox, Paul R. Gugliuzza
Minnesota Law Review Vols. 106:2 onward (2021-present)
Courts frequently defer to the decisions of administrative agencies, particularly when the decision is thoroughly deliberated and within the agency’s realm of technical and legal expertise. Conversely, when an agency gives little thought to a matter or brings no special knowledge to bear, the agency gets little or no deference. Patent law, however, does it backwards. The decision of a single examiner at the Patent Office to grant a patent—a decision made under significant time pressure and with incentives skewed in the applicant’s favor—receives substantial deference when the patent’s validity is later challenged in court as a defense to an …
Understanding Chilling Effects, Jonathan W. Penney
Understanding Chilling Effects, Jonathan W. Penney
Minnesota Law Review Vols. 106:2 onward (2021-present)
With digital surveillance and censorship on the rise, the amount of data available unprecedented, and corporate and governmental actors increasingly employing emerging technologies like artificial intelligence and facial recognition technology for surveillance and data analytics, concerns about “chilling effects,” that is, the capacity for these activities to “chill” or deter people from exercising their rights and freedoms, have taken on greater urgency and importance. Yet, there remains a clear dearth in systematic theoretical and empirical work points. This has left significant gaps in understanding. This Article has attempted to fill that void, synthesizing theoretical and empirical insights from law, privacy, …
Show Me The Money: Addressing The Oversight Gap In Private Foundation Donations To Donor-Advised Funds, Kerry Gibbons
Show Me The Money: Addressing The Oversight Gap In Private Foundation Donations To Donor-Advised Funds, Kerry Gibbons
Minnesota Law Review Vols. 106:2 onward (2021-present)
Americans’ charitable giving habits are changing. Since the 1990s, a new form of charitable giving (donor-advised funds, or “DAFs”) has skyrocketed in popularity. In 2018, DAFs held at least $72 billion in charitable dollars—representing a 200% increase from four years prior. DAFs’ ascendance can be attributed to their ease of use, integration into existing investment firms, and the remarkably few regulations governing their life cycle. These funds operate much like personal private foundations, but, unlike private foundations, they are subject to very few federal regulations. Donations to DAFs can sit in funds in perpetuity, the original donor can assign succession …
Size Matters (Even If The Treasury Insists It Doesn’T): Why Small Taxpayers Should Receive A De Minimis Exemption From The Gilti Regime, Patrick Riley Murray
Size Matters (Even If The Treasury Insists It Doesn’T): Why Small Taxpayers Should Receive A De Minimis Exemption From The Gilti Regime, Patrick Riley Murray
Minnesota Law Review Vols. 106:2 onward (2021-present)
The Tax Cuts & Jobs Act drastically altered the U.S. international tax landscape. Among its most significant changes is the implementation of the Global Intangible Low-Taxed Income (GILTI) regime. GILTI attempts to increase the U.S. tax base by preventing both the offshoring of intangible assets and the avoidance of U.S. tax. Though aimed at large multinational corporations, GILTI also applies to small businesses. Through inordinately complex methods, GILTI mandates controlled foreign corporations to artificially reverse engineer their intangible income, and it requires the U.S. shareholders of those corporations to include that artificial amount in gross income. GILTI also imposes new, …
Contractual Depth, Cathy Hwang, Matthew Jennejohn
Contractual Depth, Cathy Hwang, Matthew Jennejohn
Minnesota Law Review Vols. 106:2 onward (2021-present)
Who is the intended audience of a contract? A court, who may be called upon to resolve a dispute, is one audience. Another is commercial communities, who punish breach with reputational sanctions, per the longstanding literature on informal enforcement. This Article shows how modern contracts have more intended audiences than courts and communities: instead, they are drafted with many third parties in mind, including regulators. When contracts speak to many audiences, they gain multiple layers of meaning, giving them “contractual depth.” This Article draws upon a series of novel interviews with dealmakers—law firm partners, general counsel, and executives—in a wide …
A Moral And Legal Imperative To Act: The Bail Bond Industry, Consumer Protection, And Public Enforcers, Brandie Burris
A Moral And Legal Imperative To Act: The Bail Bond Industry, Consumer Protection, And Public Enforcers, Brandie Burris
Minnesota Law Review Vols. 106:2 onward (2021-present)
Bail is not a fine, and it is not a punishment. In theory, bail serves a simple goal: it ensures an accused defendant will appear at their criminal hearings. Yet, as practiced, the American bail system is insidious. Bail bond agencies exploit their grossly unequal bargaining power, depress consumer access to comparative information, employ contracts with terms unreasonably favorable to the company’s interests, and conceal extreme contract terms in confusing legal jargon. As a result, common bail industry practices trap consumers in debt cycles under unconscionable bail bond contracts simply because families cannot afford the cash bail payment needed to …
Remembrance Of And Tribute To Walter F. Mondale, Keith Ellison
Remembrance Of And Tribute To Walter F. Mondale, Keith Ellison
Minnesota Law Review Vols. 106:2 onward (2021-present)
This volume of Minnesota Law Review is dedicated to the memory of the Honorable Walter F. Mondale, former Vice President of the United States of America. A 1956 graduate of the University of Minnesota Law School and an editor of Minnesota Law Review Volume 39, Mondale was the 42nd Vice President of the United States, serving in office from 1977 to 1981. Following his inauguration, Vice President Mondale became the modern prototype of an activist Vice President, transforming the role from titular figurehead to valued advisor. Prior to his Vice Presidency, Mondale served as U.S. Senator for Minnesota from 1964 …
The Input Fallacy, Talia B. Gillis
The Input Fallacy, Talia B. Gillis
Minnesota Law Review Vols. 106:2 onward (2021-present)
Algorithmic credit pricing threatens to discriminate against protected groups. Traditionally, fair lending law has addressed such threats by scrutinizing inputs. But input scrutiny has become a fallacy in the world of algorithms. Using a rich dataset of mortgages, I simulate algorithmic credit pricing and demonstrate that input scrutiny fails to address discrimination concerns and threatens to create an algorithmic myth of colorblindness. The ubiquity of correlations in big data combined with the flexibility and complexity of machine learning means that one cannot rule out the consideration of protected characteristics, such as race, even when one formally excludes them. Moreover, using …
Data As Labor: Retrofitting Labor Law For The Platform Economy, Eugene K. Kim
Data As Labor: Retrofitting Labor Law For The Platform Economy, Eugene K. Kim
Minnesota Journal of Law, Science & Technology
No abstract provided.
Anonymous Expression And "Unmasking" In Civil And Criminal Proceedings, Leeza Arbatman, John Vilasenor
Anonymous Expression And "Unmasking" In Civil And Criminal Proceedings, Leeza Arbatman, John Vilasenor
Minnesota Journal of Law, Science & Technology
No abstract provided.
Term Limits And Embracing A Political Supreme Court, Guha Krishnamurthi
Term Limits And Embracing A Political Supreme Court, Guha Krishnamurthi
Minnesota Law Review Headnotes, Vols. 107 onward (2022-present)
No abstract provided.
Handling The Mayo Powder Keg: Emphasizing Preemption In § 101 Biotechnology Inquiries, Zachary M. Robole
Handling The Mayo Powder Keg: Emphasizing Preemption In § 101 Biotechnology Inquiries, Zachary M. Robole
Minnesota Law Review Headnotes, Vols. 107 onward (2022-present)
No abstract provided.
“What Has Always Been True”: The Washington Supreme Court Decides That Seizure Law Must Account For Racial Disparity In Policing, Aliza Hochman Bloom
“What Has Always Been True”: The Washington Supreme Court Decides That Seizure Law Must Account For Racial Disparity In Policing, Aliza Hochman Bloom
Minnesota Law Review Headnotes, Vols. 107 onward (2022-present)
No abstract provided.
A Century Of Business In The Supreme Court, 1920–2020, Lee Epstein, Mitu Gulati
A Century Of Business In The Supreme Court, 1920–2020, Lee Epstein, Mitu Gulati
Minnesota Law Review Headnotes, Vols. 107 onward (2022-present)
No abstract provided.
Beyond Purposivism In Tax Law, Jonathan H. Choi
Will Competition Reduce Attention Costs In Social Media?, Francesco Parisi
Will Competition Reduce Attention Costs In Social Media?, Francesco Parisi
Articles
Unlike other monopolies, social media networks almost uniformly give access to their services for free to everybody. Economists refer to these markets as “zero-price markets.” The main, and often sole, source of revenue for the network owners comes from fees that are paid by advertisers. Network owners offer access to users in exchange for users’ attention to advertisements. Economists refer to these implicit market exchanges under the heading of “attention economy.” Regulatory solutions and antitrust remedies have been considered to foster cost reduction in the market economy. This paper investigates the conditions under which an increase in competition in the …
Fifty Years Of Patent Remedies Case Law: Two Steps Forward, One Step Back, Thomas F. Cotter
Fifty Years Of Patent Remedies Case Law: Two Steps Forward, One Step Back, Thomas F. Cotter
Articles
Over the past fifty years, courts have developed a body of case law on patent remedies that is, in many respects, solidly grounded in economic reasoning. Among the high points are the courts’ embrace, in various contexts, of the simple principle that patent damages should restore patent owners to the position they would have occupied, but for the infringement—and of an important corollary to that principle, namely the importance to damages calculations of the “noninfringing alternatives” concept. By contrast, certain other developments—including the confusing standards for determining when it is appropriate to use the “entire market value” of a product …
The Many Faces Of Modern Legal Realism, Brian Bix
The Many Faces Of Modern Legal Realism, Brian Bix
Articles
This work offers an overview of the consequences and implications of the work of the American Legal Realists. First, the article considers Brian Leiter’s naturalist understanding of the realist project and how he uses it as an occasion to argue for a generally naturalist approach to legal philosophy. Second, Frederick Schauer transforms a legal realist-like focus on the concerns of average citizens for legal enforcement to advocate for the view that coercion is central to understanding law. Third, self-styled New Legal Realists try to merge a realist-inspired search for the effects of legal rules with a more traditional respect for …
January 6, Ambiguously Inciting Speech, And The Overt-Acts Rule, Alan Rozenshtein, Jed Handelsman Shugerman
January 6, Ambiguously Inciting Speech, And The Overt-Acts Rule, Alan Rozenshtein, Jed Handelsman Shugerman
Articles
A prosecution of Donald Trump for his role in the January 6 attack on the Capitol would have to address whether the First Amendment protects the inflammatory remarks he made at the “Stop the Steal” rally. A prosecution based solely on the content of Trump’s speech—whether for incitement, insurrection, or obstruction—would face serious constitutional difficulties under Brandenburg v. Ohio’s dual requirements of intent and likely imminence. But a prosecution need not rely solely on the content of Trump’s speech. It can also look to Trump’s actions: his order to remove the magnetometers from the entrances to the rally and his …
The Banality Of Evil (?): The Strange(Ly Quiet) Careers Of Korematsu And Hirabayashi In The Federal Circuit Courts, 1943‐2016, Scott Dewey
Articles
Korematsu v. United States (1944) and Hirabayashi v. United States (1943), the most famous Supreme Court cases associated with the tragic internment of Japanese Americans during World War II, now “live in infamy”, along with the likes of Plessy v. Ferguson and Scott v. Sandford, among the worst constitutional law train-wrecks of American legal history. Ironically, American courts and judges also used the two towering internment cases for their resounding language supporting racial equality and non-discrimination. In either guise, the cases came to cast a long shadow over America’s legal landscape. Thus, it may be somewhat surprising to discover that …
"You're Fired": Criminal Use Of Presidential Removal Power, Richard Painter
"You're Fired": Criminal Use Of Presidential Removal Power, Richard Painter
Articles
If Donald Trump wins the 2024 election, his first order of business would be to use his power as president to halt the criminal investigations against him. In the case of federal indictments, he would likely begin by removing the special counsel, and then proceeding to remove anyone else who had control over the investigations or prosecutions. Such removal would likely constitute the crime of obstruction of justice. May a President do this? This Article addresses a narrow but critically important aspect of presidential authority: the intersection between the President’s power to remove executive branch officers and criminal laws that …
Investing In Private Evidence: The Effect Of Adversarial Discovery, Francesco Parisi, Alice Guerra
Investing In Private Evidence: The Effect Of Adversarial Discovery, Francesco Parisi, Alice Guerra
Articles
Much of the conventional wisdom of evidence law rests on the premise that the amount of evidence available in any given case is exogenously determined. With the advent of evidence technology (e.g. dashcams, black-box technology, digital data storage, surveillance cameras), the availability of evidence is substantially controlled by individuals. In this article, we show that evidence rules play an important role in determining individuals’ decisions to invest in private evidence. We compare the evidence rules adopted in the USA and Europe and analyze their relative impact on the voluntary adoption of evidence technology. We find that by making private evidence …
Garbage In, Garbage Out: Improved Citators Through Improved Citations, Andrew J. Martineau
Garbage In, Garbage Out: Improved Citators Through Improved Citations, Andrew J. Martineau
Articles
This article shows the continued need for the adoption of a universal, medium- and vendor-neutral citation format by examining how negative case treatment can be discerned algorithmically from Bluebook signals. Although traditional citations to case reporters are treated as machine-readable identifiers by contemporary research databases, the shortcomings of this format result in unnecessary errors and lag time in citators that discern negative treatment information from Bluebook-formatted citations alone. By adopting a universal citation format, as well as a small set of citation "best practices, " we would see significant improvements in these kinds of purely algorithmic citators. The greater the …
Promoting Patent Practitioner Diversity: Expanding Non-Jd Pathways And Removing Barriers, Christopher M. Turoski
Promoting Patent Practitioner Diversity: Expanding Non-Jd Pathways And Removing Barriers, Christopher M. Turoski
Articles
No abstract provided.
From Mandates To Governance: Restructuring The Employment Relationship, Brett Mcdonnell, Matthew Bodie
From Mandates To Governance: Restructuring The Employment Relationship, Brett Mcdonnell, Matthew Bodie
Articles
No abstract provided.
Amar's Words That Made Us, Michael J. Gerhardt
Amar's Words That Made Us, Michael J. Gerhardt
Constitutional Commentary, Vol. 37 and later (2023–present)
No abstract provided.
The Battle Over Rights Is The Problem But Judges Are Not The Solution, Eric J. Segall
The Battle Over Rights Is The Problem But Judges Are Not The Solution, Eric J. Segall
Constitutional Commentary, Vol. 37 and later (2023–present)
No abstract provided.
K Is For Contract--Why Is It, Though? A K'S Study On The Origins, Persistence And Propagation Of Legal Konventions, Hanjo Hamann
K Is For Contract--Why Is It, Though? A K'S Study On The Origins, Persistence And Propagation Of Legal Konventions, Hanjo Hamann
Minnesota Law Review Headnotes, Vols. 94-106 (2009-2022)
No abstract provided.
What Does A Corporation Owe?: The Scope Of Obligations In International Investment Counterclaims, Kevin Crow, Lina Lorenzoni-Escobar
What Does A Corporation Owe?: The Scope Of Obligations In International Investment Counterclaims, Kevin Crow, Lina Lorenzoni-Escobar
Minnesota Journal of International Law, Vols. 28:2 onward (2019-present)
No abstract provided.
Protecting The Public Interest Through Intellectual Property Law: The Creative Approach Of Chinese Judges, Haochen Sun
Protecting The Public Interest Through Intellectual Property Law: The Creative Approach Of Chinese Judges, Haochen Sun
Minnesota Journal of International Law, Vols. 28:2 onward (2019-present)
No abstract provided.