Law Commons^™

Tribute In Honor Of Oliver W. Hill, Esq., Jonathan K. Stubbs

Law Faculty Publications

Memorial tribute to Oliver W. Hill, pioneer Richmond civil rights attorney.

The Irs And Your Politically Controversial Speakers, Mary L. Heen

Law Faculty Publications

During the 2008 election cycle, we can expect an upsurge of incidents in which college and unive rsity administrators rescind legitimate invitations to politically controversial speakers. As Academic Freedom and Outside Speakers, a statement issued by the MU P's Committee A on Academic Freedom and Tenure, affirms, "Because academic freedom requires the liberty to learn as well as to teach, colleges and universities should respect the prerogati ves of campus organizations to select outside speakers they wish to hear." (The statement begins on page 62 .) In the past, administrators have sometimes cited the lack of balance represented by the …

School Is In Session For Summer Associates, Joyce Manna Janto

Law Faculty Publications

Law students who are starting summer associate positions often need a “reality check.”

Whether these aspiring lawyers are moving from the casual summer employment of their college days, or switching professional fields, they will have to understand and adapt to the culture of a law firm.

New summer associates need to understand the mores of their own firm and the locale’s legal culture, and master practical matters such as the firm’s billing system. Legal research that is “more or less accurate” is not accurate enough, and may be too costly, for a law firm’s clients.

From The Treasurer: Aall Funds Initiatives, Joyce Manna Janto

Law Faculty Publications

Report of AALL financial status at the end of FY 2005-2006.

Can Prosecutors Bluff? Brady V. Maryland And Plea Bargaining, John G. Douglass

Law Faculty Publications

The author discusses the symbolic value of the Brady rule in the pretrial context in the U.S. criminal justice system. Brady's symbolic power remains stronger than its corrective power in post-trial motions. It serves as a constitutional reminder to prosecutors because they cannot serve as architects of unfairness. Most prosecutors disclose more Brady material in pretrial discovery than the constitutional rule actually demands. This indicates that prosecutors can bluff.

Furman Fundamentals, Corinna Barrett Lain

Law Faculty Publications

For the first time in a long time, the Supreme Court's most important death penalty decisions all have gone the defendant's way. Is the Court's newfound willingness to protect capital defendants just a reflection of the times, or could it have come even without public support for those protections? At first glance, history allows for optimism. Furman v. Georgia, the 1972 landmark decision that invalidated the death penalty, provides a seemingly perfect example of the Court's ability and inclination to protect capital defendants when no one else will. Furman looks countermajoritarian, scholars have claimed it was countermajoritarian, and even …

Cold Case - One Ordinary Law Librarian Assists In Solving A 53-Year-Old Mystery And Learns A Lesson About How Law Students Treat Legal Research, Joyce Manna Janto

Law Faculty Publications

One ordinary law librarian assists in solving a 53-year-old mystery and learns a lesson about how law students treat legal research.

Accidental Rights, James Gibson

Law Faculty Publications

Written for the Yale Law Journal's online Pocket Part, this is a much shorter and (I hope) more accessible iteration of my earlier paper, Risk Aversion and Rights Accretion in Intellectual Property Law, 116 Yale L.J. 882 (2007). It summarizes that paper's central point - i.e., that intellectual property entitlements are growing not just because of expansive court decisions and legislative enactments, but also because of seemingly sensible, risk-averse licensing decisions that inadvertently feed back into legal doctrine - and then explores how this phenomenon might apply to (and be manipulated by) enterprises such as Google Book Search.

The Houses That Eminent Domain And Housing Tax Credits Built: Imagining A Better New Orleans, Carol N. Brown

Law Faculty Publications

Proposals for investing in and rebuilding urban enclaves such as New Orleans are layered with controversy and difficulty. One of the most significant impediments to rebuilding New Orleans will be addressing the need to replenish the depleted rental housing market. Racial and economic integration of housing markets and appropriate use of private sector money to replenish the rental housing stock within a “reasonable” time period are indispensable components of a responsible revitalization and renewal plan. This Article contends that a combination of the smart exercise of eminent domain and of ”housing production subsidies” – housing tax credits – is necessary …

Deciding Death, Corinna Barrett Lain

Law Faculty Publications

When the Supreme Court is deciding death, how much does law matter? Scholars long have lamented the majoritarian nature of the Court's Eighth Amendment "evolving standards of decency" doctrine, but their criticism misses the mark. Majoritarian doctrine does not drive the Court's decisions in this area; majoritarian forces elsewhere do. To make my point, I first examine three sets of "evolving standards" death penalty decisions in which the Court implicitly or explicitly reversed itself, attacking the legal justification for the Court's change of position and offering an extralegal explanation for why those cases came out the way they did. I …

Ants, Elephant Guns, And Statutory Subject Matter, Kristen Jakobsen Osenga

Law Faculty Publications

Questions about whether software qualifies for patent protection are becoming increasingly more prevalent, despite the fact the issue seemed settled. The Supreme Court has indicated its interest in the topic and the U.S. Patent and Trademark Office-which had previously been liberally issuing patents in the computer-related arts-now appears to be leading the groundswell against the subject-matter eligibility of these inventions, rejecting an increasing number of applications in this area for lack of statutory subject matter. Despite the broad definitions of patentable subject matter provided by the Constitution, Patent Act, and Supreme Court, the Patent Office has grafted various additional requirements …

Rembrandts In The Research Lab: Why Universities Should Take A Lesson From Big Business To Increase Innovation, Kristen Jakobsen Osenga

Law Faculty Publications

In this Article, I argue that patents, if obtained and exploited strategically, can have a beneficial effect on university research. I will describe the barriers to university participation in the patent arena-that is, lack of money, lack of knowledge, lack of infrastructure, and cultural concerns-and explain, with reference to business, how and why universities need to overcome these barriers. By breaking down these barriers and ably exploiting their intellectual property, I argue that the obstacles to university research will be lessened, resulting in increased research and innovation. I further provide a primer to provide university administrators, technology transfer offices, and …

The Case For A Collaborative Enforcement Model For A Federal Right To Education, Kimberly J. Robinson

Law Faculty Publications

This Article proposes an innovative approach for directing the expanding federal role in education that will encourage states to address disparities in educational opportunities that prevent disadvantaged students from achieving their full potential. The proposed approach builds on the understanding reflected in NCLB that the federal government will remain critical in public education reform. This Article reexamines one avenue for federal involvement that the U.S. Supreme Court considered in several cases and that scholars have debated for more than thirty years: a federal right to education.

San Antonio Independent School District v. Rodriguez explicitly offered the Supreme Court the opportunity …

Dred Scott: Tiered Citizenship And Tiered Personhood, Henry L. Chambers, Jr.

Law Faculty Publications

Part I of this brief essay discusses Dred Scott and the Court's acceptance of tiered citizenship and tiered personhood. Part II discusses the Reconstruction Amendments as a response to tiered citizenship and tiered personhood. Part III notes two issues-felon disfranchisement and the treatment of detainees in the War on Terror-that help illuminate tiered citizenship and tiered personhood and help us evaluate the conditions under which citizenship and personhood rights may be restricted without creating tiers of citizenship and tiers of personhood.

The Process Due Indefinitely Detained Citizens, Carl W. Tobias

Law Faculty Publications

A very controversial feature of the "war on terror" is the scope of the power which Congress has granted President George W. Bush to designate suspected terrorists enemy combatants and indefinitely detain them. The United States Court of Appeals for the Fourth Circuit has most fully, if not clearly, resolved this question.

The United States incarcerated two citizens with little process for more than a year in the Charleston and Norfolk naval brigs. The first litigated three habeas corpus petitions before the Fourth Circuit and a fourth to the Supreme Court before the government released him. The second convinced a …

Assessing The Revised Arizona Local Rules Of Federal Procedure, Carl W. Tobias

Law Faculty Publications

The United States District Court for the District of Arizona has generally not contributed to a significant difficulty with modem federal court practice: local procedural proliferation. Each of the remaining ninety-three federal district courts has prescribed and applied numerous local strictures that govern admiralty, bankruptcy, civil, criminal and evidentiary practice, while mounting numbers of these local provisos conflict with or repeat analogous federal rules or statutes. In contrast, the United States District Court for the District of Arizona has promulgated and enforced relatively few local measures, and only a tiny percentage of them are redundant or inconsistent with corresponding federal …

Rational Retroactivity In A Commercial Context, David Frisch

Law Faculty Publications

This Article focuses on the commercial law context. While transition issues have previously received scant attention, this area of the law is proceeding at an accelerating rate, making transition policy crucially important at this time. In particular, this Article will consider the plausibility and implications of a retroactivity norm in the commercial law context by examining the recent revisions and amendments to Articles 1 and 2 of the Code. Two claims will be advanced: The incentive-based analysis of retroactivity issues in other contexts does not necessarily comport with the realities of commercial law, and consideration of both expectations and incentives …

What You Should Know Before You Leave The System, Dale Margolin Cecka

Law Faculty Publications

Discharging young people from foster care with no place to go, no source of income, and no health insurance is not just wrong-it's illegal. Although every state's laws are different, all states have an obligation to make sure you are able to live on your own before forcing you to leave the foster care system. In New York, you can remain in foster care until you are 21. However, once you turn 18, you must agree to remain in care by either signing an agreement or telling the judge in court that you want to stay in care. You cannot …

Reassessing The Purposes Of Federal Question Jurisdiction, John F. Preis

Law Faculty Publications

For ages, judges and legal academics have claimed that federal question jurisdiction has three purposes: to provide litigants with a judge experienced in federal law, to protect litigants from state court hostility toward federal claims, and to preserve uniformity in federal law. Because federal claims, for the most part, have always been cognizable in state courts, these purposes imply that state courts are less experienced, more hostile, and more likely to adjudicate federal law in ways that decrease the uniformity of federal law. Despite the ongoing allegiance to this conception of federal question jurisdictionand by implication, state court adjudication of …

Donotcall.Gov: Do Not Call It Up With Firefox, Roger V. Skalbeck

Law Faculty Publications

This article examines a critical design error with the website DoNotCall.gov.

Law And Technology Podcasts, Roger V. Skalbeck

Law Faculty Publications

This article lists a select handful of useful podcasts covering topics such as technology policy, law, and web development.

Have You Reddit? Exploring Ways To Digg Some Del.Icio.Us Stories, Roger V. Skalbeck

Law Faculty Publications

Almost anybody who has read an online newspaper or blog recently has probably seen the names del.icio.us, Digg, or reddit. These are three of the most popular social networking sites included in the concept that makes up part of the buzzword Web 2 .0.

Beyond Jetting you collect and share information, these services also have great research and marketing potential. In this article, we explore some of these concepts and how to use them.

The Freedom Of Information Act And Trade Secrets, Roger V. Skalbeck

Law Faculty Publications

This article details a case illustration where federal law intersects with trade secret questions, a subject normally governed by state laws.

Originalism, Popular Sovereignty And Reverse Stare Decisis, Kurt T. Lash

Law Faculty Publications

Although all interpretive methods must grapple with the issue of stare decisis, the issue is particularly acute for originalists due to the potentially radical discontinuity between original meaning and modern doctrine. An unmediated enforcement of original understanding of the Constitution would likely reverse countless precedents and impose unacceptably high costs in terms of the rule of law. On the other hand, upholding a precedent despite its variance with the original understanding undermines the very legitimacy of legal review according to most theories of originalism. Focusing on the most common normative basis for originalism, popular sovereignty, the article identifies those cases …

Minority Report: John Marshall And The Defense Of The Alien And Sedition Acts, Kurt T. Lash

Law Faculty Publications

In 1799, the Federalist minority of the Virginia House of Delegates produced an extended defense of the Alien and Sedition Acts. This Minority Report responded to Madison's famous Virginia Resolutions and efforts by Virginia Republicans to tar the Adams Administration with having exceeded its powers under the federal Constitution. Originally attributed to John Marshall by biographer Albert Beveridge, recent biographies of Marshall have omitted the episode or rejected Beveridge's claim. The current editors of the Papers of John Marshall omitted the Minority Report from their multi-volume collection of Marshall's work and have successfully lobbied editors of similar collections to remove …

Brief Of Professors David J. Bederman Et Al. As Amici Curiae In Exxon Shipping Co. V. Baker, John Paul Jones

Law Faculty Publications

Amicus Curiae brief in support of Petition for Certiorari to the Supreme Court of the United States in Exxon Shipping v. Baker (the "Exxon Valdez" case).

From the statement of Interest of Amici Curiae:

Amici are law professors engaged in study of the admiralty and maritime law of the United States. They have published extensively about it, and currently teach or have spent their professional careers teaching, about it.

The only interest of amici is in optimal development of the body of U.S. law that governs in cases of admiralty and maritime jurisdiction. Indeed, we differ on how various questions …

Causation Requirements In Tort And Insurance Law Practice: Demystifying Some Legal Causation Riddles, Peter N. Swisher

Law Faculty Publications

Legal causation requirements, in both tort and insurance law, rank among the most pervasive yet most elusive and most misunderstood of all legal concepts in Anglo-American law for legal practitioners, the courts,' and academic scholars alike. Indeed, no less an authority than William Lloyd Prosser has stated that there "is perhaps nothing in the entire field of law which has called forth more disagreement, or upon which the opinions are in such a welter of confusion" than proximate cause issues, "despite the manifold attempts which have been made to clarify the subject."

Although some commentators have looked upon legal causation's …

Brownfields At 20: A Critical Reevaluation, Joel B. Eisen

Law Faculty Publications

Following a basic description of the New Jersey program, I will discuss two specific developments, the BDA initiative and the recent "Grace Period Rule," that changed some aspects of the program. My aim is more modest than a full-scale re-evaluation of all brownfields programs (or indeed of the New Jersey program in its totality); instead I look at the experience within one program to assess whether there is movement toward the development-centered approach. I find that some developments in New Jersey are positive, notably the BDA's approach to addressing multiple brownfield sites concurrently in the same location. On the other …

No Chance To Prove Themselves: The Rights Of Mentally Disabled Parents Under The Americans With Disabilities Act And State Law, Dale Margolin Cecka

Law Faculty Publications

This article explores the relationship between state child welfare laws that terminate parental rights and the federal Americans with Disabilities Act (ADA). The article begins by analyzing the application of the ADA to termination of parental rights proceedings against parents with mental disabilities. It then surveys state child welfare laws, focusing on the treatment of parents under New York State law. The article concludes by advocating for a change to reflect the principles of the ADA in state laws and in practice.

Nonobviousness And The Federal Circuit: An Empirical Analysis Of Recent Case Law, Christopher A. Cotropia

Law Faculty Publications

This Article provides such an empirical study. The study examines all Federal Circuit cases over a four-year period considering the nonobviousness of a patent claim. Appeals from both patent infringement cases before district courts and pending patent applications and interferences before the United States Patent and Trademark Office (USPTO) are investigated. The study looks at the data in two levels of detail.