Law Commons^™

The Public Policy Exception And International Intellectual Property Law, Marketa Trimble

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No abstract provided.

Review: Nevada Real Property Practice And Procedure Manual, Ngai Pindell

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Professor Pindell's review of Nevada Real Property Practice and Procedure Manual (2021).

The Elastics Of Snap Removal: An Empirical Case Study Of Textualism, Thomas O. Main, Jeffrey W. Stempel, David Mcclure

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This article reports the findings of an empirical study of textualism as applied by federal judges interpreting the statute that permits removal of diversity cases from state to federal court. The “snap removal” provision in the statute is particularly interesting because its application forces judges into one of two interpretive camps—which are fairly extreme versions of textualism and purposivism, respectively. We studied characteristics of cases and judges to find predictors of textualist outcomes. In this article we offer a narrative discussion of key variables and we detail the results of our logistic regression analysis. The most salient predictive variable was …

The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum

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This article enters into the modern debate between "constitutional departmentalists"-who contend that the executive and legislative branches share constitutional interpretive authority with the courts-and what are sometimes called "judicial supremacists." After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas-popular sovereignty and the separation of powers-which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, we …

Chevron’S Asylum: Judicial Deference In Refugee Cases, Michael Kagan

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Chevron deference is at the height of its powers in refugee and asylum cases, with the highest possible human consequences. Why does the Supreme Court seem so comfortable with Chevron deference in asylum cases when it has been reluctant to defer to the government in other kinds of deportation cases? More to the point, is this deference justified? There are cogent arguments justifying more deference in asylum cases than in other kinds of deportation cases. These arguments rest to a great extent on the premise that greater political accountability is a good thing when interpreting a statute. Yet in a …

The Legal Industry's Second Chance To Get It Right, Nancy B. Rapoport, Joseph R. Tiano Jr.

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No abstract provided.

Talking Back In Court, M. Eve Hanan

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No abstract provided.

Rejecting Word Worship: An Integrative Approach To Judicial Construction Of Insurance Policies, Jeffrey W. Stempel, Erik S. Knutsen

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Litigation over insurance coverage is really a quest for meaning: Does the insurance policy cover the loss at issue? Construing the insurance policy, courts are attempting to give legal effect to what the document purports to command. But what were the intentions and expectations of insurer and insured? Do those intentions even matter? Or is only the written text of the policy relevant to the coverage result? Courts approaching these questions typically frame the interpretative choice as one of strict textualism versus a more contextual, functionalist approach.

In many, perhaps even most situations, text and context align to create an …

Assimilation, Removal, Discipline, And Confinement: Native Girls And Government Intervention, Addie C. Rolnick

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A full understanding of the roots of child separation must begin with Native children. This Article demonstrates how modern child welfare, delinquency, and education systems are rooted in the social control of indigenous children. It examines the experiences of Native girls in federal and state systems from the late 1800s to the mid-1900s to show that, despite their ostensibly benevolent and separate purposes, these institutions were indistinguishable and interchangeable. They were simply differently styled mechanisms of forced assimilation, removal, discipline, and confinement. As the repeating nature of government intervention into the lives of Native children makes clear, renaming a system …

The Specter Of Malpractice: When Law Firm General Counsel And Risk Management Professionals Are Confronted With Potential Malpractice Claims And Ethics Violations, Joseph R. Tiano Jr., Nancy B. Rapoport, William J. Siroky

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Every day, law firm general counsel and other law firm risk management professionals face a very practical, very vexing problem. The problem is what to do when hearing that a serious ethical mistake or impropriety may have occurred—but without any concrete confirmation that something problematic has, in fact, happened. This essay discusses the most important initial steps and questions that the firm’s general counsel or other risk management professional must address in this confounding situation where the “specter of malpractice” is present. We call this the “specter of malpractice” because a malpractice claim has not yet fully materialized (and it …

Repairing Medical Equipment In Times Of Pandemic, Ofer Tur-Sinai, Leah Chan Grinvald

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The COVID-19 pandemic that has gripped the world since early 2020 has underscored the need for an effective right to repair medical equipment. As healthcare systems have been pushed to the limit, keeping critical medical equipment (such as ventilators) in working order has become a matter of life and death. Unfortunately, the ability of hospitals and other healthcare providers to service and fix their medical equipment is often hindered by the tight control that original equipment manufacturers keep over repair of their products. On top of direct contractual restrictions on repair, one of the major difficulties encountered by hospital-based and …

Sex, Crime, And Serostatus, Courtney Cross

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The HIV crisis in the United States is far from over. The confluence of widespread opioid usage, high rates of HIV infection, and rapidly shrinking rural medical infrastructure has created a public health powder keg across the American South. Yet few states have responded to this grim reality by expanding social and medical services. Instead, criminalizing the behavior of people with HIV remains an overused and counterproductive tool for addressing this crisis-especially in the South, where HIV-specific criminal laws are enforced with the most frequency.

People living with HIV are subject to arrest, prosecution, and lengthy prison sentences if they …

Hard Battles Over Soft Law: The Troubling Implications Of Insurance Industry Attacks On The American Law Institute Restatement Of The Law Of Liability Insurance, Jeffrey W. Stempel

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ALI Restatements of the Law have traditionally exerted significant influence over court decisions and the development of the common law. During the past two decades, however, the ALI has seen an upsurge in interest group activity designed to shape or even thwart aspects of the Institute's work. Most recently, the Restatement of the Law of Liability Insurance (RLLI) has been the focus of not only criticism of particular provisions but a concerted effort by members of the insurance industry to demonize the project as a whole and bar use of the document by courts.

The vehemence of insurer opposition seems …

"Our Most Sacred Legal Commitments": A Digital Exploration Of The U.S. Supreme Court Defining Who We Are And How They Should Opine, Eric C. Nystrom, David S. Tanenhaus

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This Article focuses on uncovering the multiple meanings of the word "our" in the published opinions of the U.S. Supreme Court from Chisholm to modern times. To do so, we use a digital legal history approach, combining robust court data, text mining techniques, and expert word classification, using a set of custom open-source tools and open data.

The Rhetoric Of Racism In The United States Supreme Court, Kathryn M. Stanchi

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This Article is the first study that categorizes and analyzes all the references to the terms "racist," "racism," and "white supremacy" throughout Supreme Court history. It uses the data to tease out how the Court shaped the meaning of these terms and uncovers a series of patterns in the Court's rhetorical usages. The most striking pattern uncovered is that, for the Supreme Court, racism is either something that just happens without any acknowledged racist actor or something that is perpetrated by a narrow subset of usual suspects, such as the Ku Klux Klan or Southern racists. In the Supreme Court's …

Telling The Story On Your Timesheets: A Fee Examiner's Tips For Creditors' Lawyers And Bankruptcy Estate Professionals, Nancy B. Rapoport

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This essay discusses how much of a lawyer’s embedded assumptions and cognitive errors can come across in something as simple as a time entry on a bill. So much can be revealed about how a lawyer views himself or herself in society and about the lawyer’s relationship with the client that it’s worth examining what we can find when we look at legal bills.

International Law Association's Guidelines On Intellectual Property And Private International Law ("Kyoto Guidelines"): Recognition And Enforcement, Pedro De Miguel Asensio, Marketa Trimble

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This section of the the chapter "Recognition and Enforcement" of the International Law Association's Guidelines on Intellectual Property and Private International Law ("Kyoto Guidelines") establishes the conditions under which the effects of judgments rendered in a country may be extended to foreign jurisdictions. It seeks to favor international coordination and legal certainty by facilitating the cross-border recognition and enforcement of judgments relating to IP disputes. The Guidelines are based on a broad concept of judgment with restrictions concerning judgments not considered final under the law of the State of origin as well as certain provisional measures. The main provision of …

Infected Judgment: Problematic Rush To Conventional Wisdom And Insurance Coverage Denial In A Pandemic, Erik S. Knutsen, Jeffrey W. Stempel

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The COVID-19 pandemic created not only a public health crisis but also an insurance coverage imbroglio, prompting near-immediate business interruption claims by policyholders impacted by government restrictions ordered in response to the pandemic. Insurers and their representatives "presponded" to the looming coverage claims by quickly moving to denigrate arguments for coverage, engaging in a pre-emptive strike that has largely worked to date, inducing too many courts to rush to judgment by declaring-as a matter of law-that policy terms such as "direct physical loss or damage" do not even arguably encompass the business shutdowns resulting from COVID-19. Our closer examination of …

Incarcerated Activism During Covid-19, M. Eve Hanan

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Incarcerated people have a notoriously difficult time advocating for themselves. Like other authoritarian institutions, prisons severely curtail and often punish speech, organizing, and self-advocacy. Also, like other authoritarian institutions, prison administrators are inclined to suppress protest rather than respond to the grounds for protest. Yet, despite impediments to their participation, incarcerated people have organized during the pandemic, advocating for themselves through media channels, public forums, and the courts. Indeed, a dramatic increase in incarcerated activism correlates with the onset of the COVID-19 pandemic.

Just as the COVID-19 pandemic highlights injustice in other areas of criminal legal practices, it reveals both …

Adding Context And Constraint To Corpus Linguistics, Jeffrey W. Stempel

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In Part I, I discuss the reasons why corpus linguistics should not be considered in isolation from contextual factors, as the latter often illuminate meanings that cannot be found from simply chronicling the usage of a given word. In Part II, I demonstrate, through the lens of three Supreme Court cases, that corpus linguistics does not aid interpretation when the words of a statute or document are clear, but their application to the facts at hand is not. My critique of corpus linguistics mirrors the larger, long-running, and ongoing debate of the merits of a more textual approach to interpretation …

What Is The Meaning Of "Plain Meaning", Jeffrey W. Stempel

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The American approach to construing texts (statutes, regulations, contracts and documents generally) stresses decision through determining the “plain meaning” of the document based on the court’s reading of the text. Where the court finds plain meaning on the face of text, it generally refuses to consider additional contextual information or extrinsic evidence of meaning.

Notwithstanding its status as the dominant approach to interpretation, the plain meaning concept has not been well defined or operationalized. Despite judicial confidence in the plain meaning approach, courts have wisely been willing to sidestep it and eschew the rather clear facial meaning of text when …

Intersectionality, Police Excessive Force, And Class, Frank Rudy Cooper

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Recent uprisings over the failure to hold police officers responsible for killing civilians—from Ferguson, Missouri to nationwide George Floyd protests—show the importance of excessive force as a social problem. Some scholars have launched racial critiques of policing as resulting from explicit or implicit racial bias. This Essay is the first to demonstrate that an intersectional analysis of both race and class helps explain both aggressive policing and the Court’s permissive excessive force doctrine.

This Essay identifies several take-aways from intersectionality theory’s basic insight that unique senses of self-identity and unique stereotypes form at places where categories of identity meet. First, …

The Deborah Jones Merritt Center For The Advancement Of Justice, Claudia Angelos, Mary Lu Bilek, Joan W. Howarth

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When invited to write an essay on clinical legal education honoring our friend, we were struck by the importance of a focus on clinical legal education in any collection of work paying tribute to Professor Deborah Jones Merritt. Legal education has benefited from a fifty-year movement for clinical education. This movement necessarily interrogates and seeks to overcome the anachronistic, inherited Langdellian paradigm that dominates and continues to define the curricula and policies of our law schools. But the movement for clinical education has been exponentially confounded by contemporary legal education’s shape as a pyramid of statuses and privileges accumulated over …

The Public Trust Doctrine And The Climate Crisis: Panacea Or Platitude?, Joseph Regalia

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Over a year of shutting down the global economy during the COVID pandemic achieved about .01 degrees of improvement in global warming. Not even a drop in the bucket. We continue to face a monumental climate crisis. And of the many ways that crisis threatens our environment, winnowing water resources is one of the scariest. One solution that many scholars have turned to is the public trust doctrine. At first blush, this doctrine sounds like a panacea for water management problems: When our water resources are threatened enough that current and future citizen’s access to it is in peril, the …

Distributed Federalism: The Transformation Of Younger, Anne R. Traum

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For decades federal courts have remained mostly off limits to civil rights cases challenging the constitutionality of state criminal proceedings. Younger abstention, which requires federal courts to abstain from suits challenging the constitutionality of pending state prosecutions, has blocked plaintiffs from bringing meritorious civil rights cases and insulated local officials and federal courts from having to defend against or decide them. Younger’s reach is broad. It has forced political protestors (from the Vietnam era to Black Lives Matter) to challenge the constitutionality of their arrests and prosecutions within their state criminal proceedings. The doctrine also has made it difficult to …

Smart Cars, Telematics, And Repair, Leah Chan Grinvald, Ofer Tur-Sinai

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Recent years have seen a surge in the use of automotive telematics. Telematics is the integration of telecommunications and informatics technologies. Using telematics in cars enables transmission of data communications between the car and other systems or devices. This opens up a wide range of possibilities, including the prospect of conducting remote diagnostics based on real-time access to the vehicle. Yet, as with any new technology, alongside its potential benefits, the use of automotive telematics could also have potential downsides. This Article explores the significant negative impact that the growing reliance on telematics systems could have on competition in the …

Trademark Enforcement And Statutory Incentives, Leah Chan Grinvald

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The combination of the recent U.S. Supreme Court case, Romag Fasteners v. Fossil Group, Inc., and the diamond anniversary of the Lanham Act provides good grounds to reflect on how trademark enforcement and statutory incentives have evolved through the years. Although enforcement of one’s trademarks through the use of the courts can be traced back to England in the 1790s, trademark litigation and other enforcement activities have exploded, in relative terms, since the enactment of the Lanham Act in 1946. Although not subject to an easy empirical correlation, this trend suggests that the statute has had an impact on …

The Human Right To Workplace Safety In A Pandemic, Ruben J. Garcia

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The COVID-19 pandemic has presented unique challenges for immigrant workers many of whom occupy jobs most at risk in the pandemic: heath care, janitorial services, and mass transit. This Article encourages the extension of human rights instruments protecting health and safety in the workplace to all workers, particularly immigrant workers. Garcia analyzes the options available for workers who confront unsafe working conditions under existing law. Expanding the language of “human right” will allow for greater scrutiny of actions taken by the government and employers. Garcia encourages statutory changes to OSHA and the NRLA, test cases, filing complaints under trade agreements, …