Law Commons^™

The Need For Speed (And Grace): Issues In A First-Inventor-To-File World, Margo A. Bagley

Faculty Articles

“One is the loneliest number that you’ll ever do.” This lyric applies to the United States which, since 1998, stands alone among the world’s patent systems in awarding patents to the first person to invent a claimed invention (first to invent, or “FTI”) as opposed to the first inventor to file an application claiming the invention (“FITF”). But its lonely days may soon be over: a provision in pending patent reform legislation will (if passed) move the United States from FTI to FITF and end its solitary stance.

Some argue that the U.S. already has a de facto FITF system, …

The Hidden Influence Of Jewish Law On The Common Law Tradition: One Lost Example, Michael J. Broyde

Faculty Articles

Professor Berman is undoubtedly correct that the surviving literature shows little such influence of Jewish jurisprudence. Over the course of numerous conversations I had with Professor Berman at Emory, we discussed another possibility, namely that the Jewish tradition indeed had a distinct influence on the common law; however, due to the general lack of enthusiasm for the Jewish legal tradition throughout the medieval Christian world, even when Jewish sources were consulted, they were not cited. I wish to show what I think is one such example --the enigmatic origins of the common law rule that the holder of lost property …

Economic Efficiency Versus Public Choice: The Case Of Property Rights In Road Traffic Management, Jonathan R. Nash

Faculty Articles

This Article argues, using the case of responses to traffic con­gestion, that public choice theory provides a greater explanation for the emergence of property rights than does economic efficiency. The tradi­tional solution to traffic congestion is to provide new roadway capacity, but that is not an efficient response in that it does not lead to internaliza­tion of costs and may actually exacerbate congestion problems by induc­ing travel that would not have taken place but for the new construction. By contrast, congestion charges, which impose tolls designed to internal­ize the costs of driving, offer an efficient way to address the problem …

Prophets, Priests, And Kings: John Milton And The Reformation Of Rights And Liberties In England, John Witte Jr.

Faculty Articles

In this Article, I focus on the development of rights talk in the pre-Enlightenment Protestant tradition. More particularly, I show how early modem Calvinists-those Protestants inspired by the teachings of Genevan reformer John Calvin (1509-1564)-developed a theory of fundamental rights as part and product of a broader constitutional theory of resistance and military revolt against tyranny. With unlimited space, I would document how various Calvinist groups from 1550 to 1700 helped to define and defend each and every one of the rights that would later appear in the American Bill of Rights and how these Calvinists condoned armed revolution to …

Texas Annual Survey: Securities Regulation, George Lee Flint Jr

Faculty Articles

Many courts rendered opinions during the Survey period affecting the reach of the Texas Securities Act (“TSA”). The Texas Supreme Court acknowledged the TSA’s reach over dealers selling from Texas to non-residents of the state, as well as over registration of securities sold. In contrast, the Fifth Circuit continued Congress’s campaign to limit regulation of interest rate swaps to federal regulatory bodies by defining “security” in the TSA to exclude interest rate swaps. In Kastner v. Jenkens & Gilchrist, P.C., a Texas appellate court determined that lawyers are not subject to liability for aiding and abetting when they merely prepare …

Autonomy And Acute Psychosis: When Choices Collide, Dora W. Klein

Faculty Articles

Professor Elyn Saks is a well-recognized expert in mental health law, and is training to become a psychoanalyst. Her latest book reflects her continued interest in mental health issues, but this book differs from her previous works because it is written in the voice of someone who has a personal stake in the topic.

In The Center Cannot Hold: My Journey Through Madness, Saks recounts her own experience of schizophrenia, the most serious of all mental illnesses. Beginning with some “little quirks” in childhood and progressing to full-fledged psychosis by her first year at Yale Law School, Sak’s illness caused …

All For One: A Review Of Victim-Centric Justifications For Criminal Punishment, Adam J. Macleod

Faculty Articles

Disparate understandings of the primary justification for criminal punishment have in recent years divided along new lines. Retributivists and consequentialists have long debated whether a community ought to punish violators of legal norms primarily because the violator has usurped communal standards (the retributivist view), or rather merely as a means toward some end such as rehabilitation or deterrence (the consequentialist view). The competing answers to this question have demarcated for some time the primary boundary in criminal jurisprudential thought.

A new fault line appears to have opened between those who maintain the historical view that criminal punishment promotes the common …

A Gift Worth Dying For?: Debating The Volitional Nature Of Suicide In The Law Of Personal Property, Adam J. Macleod

Faculty Articles

Suicide poses difficult and foundational problems for the law. Those who most highly value personal autonomy, those who believe in the inviolability of human life, and those who remain uncommitted on end-of-life issues, all must settle challenging questions about suicide before advancing upon the more complex terrain of physician-assisted suicide, euthanasia, and infanticide. And the way in which a society fashions legal responses to suicidal choices reveals much about the society's cultural commitments and legal assumptions.

The bodies of insurance law, tort, and health care law are also among those areas of the law in which lawmakers reserve special exceptions …

In Memoriam: Joseph M. Williams, Chris Rideout

Faculty Articles

Professor Chris Rideout pays tribute to Joseph M. Williams, 1933-2008, Professor Emeritus, University of Chicago and author of Style: Ten Lessons in Clarity and Grace, among other highly influential works. Professor Rideout shows his appreciation for Williams' generous support and many contributions to the world of writing instruction, especially legal writing.

Storytelling, Narrative Rationality, And Legal Persuasion, Chris Rideout

Faculty Articles

Professor Chris Rideout has long been interested in persuasion, and for many years he has included theories of persuasion in an advanced legal writing seminar that he teaches. He always asks his students the same question—“what persuades in the law?”—and after looking at different theories of persuasion, they then develop their own theory of legal persuasion. When he first taught the course, he had in mind rhetorical models of persuasion, starting with Aristotle and Cicero and moving toward more contemporary rhetorical work. Very quickly, however, he had to add narrative models of persuasion, plus a second question—“what is it about …

Documenting Gender, Dean Spade

Faculty Articles

This article provides an analysis of gender reclassification policies - policies that determine when an administrative agency will change an individual's gender marker on its records - in three contexts: policies related to placement in gender-segregated facilities, policies related to changing gender marker on ID, and policies related to the state provision of healthcare that is prohibited based on the gender on record for the person seeking care. The article looks at the significant variation in these policies across agencies to demonstrate the instability of gender as a category of identity verification and to ask whether the assumed usefulness of …

Environmental Justice In The Tribal Context: A Madness To Epa's Method, Catherine O’Neill

Faculty Articles

Many American Indian tribes and their members are among those most burdened by mercury contamination. When the Environmental Protection Agency (EPA) set out to regulate mercury emissions from coal-fired utilities, it was aware that mercury contamination and regulation affects tribal rights and resources. EPA's inquiry, therefore ought to have been differently framed, given tribes' unique legal and political status. Specifically, EPA ought to have confronted squarely the impact of its decision on tribes' fishing rights, rather than consider these rights as a mere afterthought. EPA 's process, too, should have been differently conducted EPA should have consulted with tribes from …

Squatters, Pirates, And Entrepreneurs: Is Informality The Solution To The Urban Housing Crisis?, Carmen Gonzalez

Faculty Articles

Giving the poor legal title to the lands they occupy extra-legally (informally) has been widely promoted by the World Bank and by best-selling author Hernando de Soto as a means of addressing both poverty and the scarcity of affordable housing in the urban centers of the global South. Using Bogota, Colombia, as a case study, this article interrogates de Soto's claims about the causes of informality and the benefits of formal title. The article concludes that de Soto's analysis is problematic in three distinct respects. First, de Soto exaggerates the benefits of formal title and fails to consider its risks. …

The Challenges Of Representing Detained Non-Citizens In Expedited Removal Proceedings From The Perspective Of The Dickinson School Of Law Immigration Clinic, Won Kidane

Faculty Articles

Persons deprived of their liberties as a result of administrative detention for immigration reasons face a multitude of serious challenges. There is currently no recognized right to the government-appointed representation in immigration proceedings. As a result, on a very small percentage of immigrants obtain pro bono or any other kind of legal representation. This problem is compounded by the fact that most immigration detainees are detained in remote rural areas where the private bar is virtually unavailable. Those who are fortunate to obtain pro bono or other types of legal representation also face some serious challenges at the different stages …

Did Harvard Get It Right?, Laurel Oates

Faculty Articles

This article grapples with whether Harvard’s adoption of the casebook method over 150 years ago was correct. It contrasts the reading of judicial decisions for principles with the pedagogy of other disciplines: reading assignments, lectures, and exams that test whether students have learned the information set out in those textbooks and lectures. It details recent research from educational psychologies suggesting that the casebook method is not particularly effective in helping students learn either the law or to how to use the law to solve problems. At the same time, the casebook method may be an extremely effective method of helping …

Immigration Reform From The Outside In, Bill Piatt

Faculty Articles

Immigration reform is made up of two differing extreme positions, but by seeking common ground, a more fair and balanced approach may be adopted in the best interests of all.Rather than trying to analyze positions as conservative or liberal, it makes more sense to view the extremes as a “closed border” versus “open border” approach. The extreme positions will not work, so a more middle-ground position would require a thoughtful examination of a number of issues. Those issues are what are the costs and benefits of removing those already illegally here; what role should the federal, state, and local governments …

Nuremberg’S Legacy Continues: The Nuremberg Trials’ Influence On Human Rights Litigation In U.S. Courts, Gwynne Skinner

Faculty Articles

This article traces the Nuremberg trials' influence on human rights litigation in the United States under the Alien Tort Statute, especially in the area of corporate complicity, and argues that the use of the Nuremberg trials as precedent in modern domestic human rights litigation is appropriate.

Immunity For Hire: How The Same-Actor Doctrine Sustains Discrimination In The Contemporary Workplace, Natasha Martin

Faculty Articles

This article provides a doctrinal critique of an employment discrimination principle recognized by the courts-the same-actor inference-based on its incongruence with both cognitive psychological research and the social dynamics of the workplace. The same-actor principle, in its most potent form, provides that where the same decision-maker engages in an alleged adverse employment action within a short period of time of making a positive employment decision, such evidence creates a strong presumption that the decision-maker harbored no unlawful discriminatory animus. The same-actor doctrine was first recognized by the Fourth Circuit in Proud v. Stone, in which the court deemed the nature …

The Celotex Initial Burden Standard And An Opportunity To “Revivify” Rule 56, Brooke Coleman

Faculty Articles

This article provides a pragmatic review of the summary judgment process and offers a new methodological approach to critiquing the Federal Rules of Civil Procedure. Using qualitative empirical methods to focus on the defendant's initial burden standard under the watershed case Celotex v. Catrett, the article calls on two new sets of data - a broad survey of published and unpublished district and appellate court opinions and a focused survey of district court cases from a single federal district court - to evaluate the critical responses to the case. The article finds that those who criticize the Celotex initial burden …

The Terrorism Exception To Asylum: Managing The Uncertainty In Status Determination, Won Kidane

Faculty Articles

The Immigration and Nationality Act ("INA "), as it must, excludes a terrorist from receiving asylum. The substantive criteria, and the adjudicative procedures set forth under the INA for the identification of the undeserving terrorist inevitably exclude those who are neither terrorists nor otherwise undeserving. Such unintended consequences are perhaps unavoidable in any well-conceived statutory scheme. What is disconcerting is, however the margin of the possible error in the application of this statutory scheme. Those who may be excluded by the application of these provisions are often not those who are supposed to be excluded as terrorists. Moreover, the existing …

Super Medians, Lee Epstein, Tonja Jacobi

Faculty Articles

It is not surprising that virtually all analyses of the Supreme Court stress the crucial role played by the swing, pivotal, or median Justice: in theory, the median should be quite powerful. In practice, however, some are far stronger than others. Just as there are “super precedents” and “super statutes”—those that are weightier or more entrenched than others—there are “super medians”—Justices so powerful that they are able to exercise significant control over the outcome and content of the Court’s decisions.

Conventional wisdom holds that Justices accumulate power by virtue of their personality, methodological approach, or even background characteristics. But our …

Focus On Batson: Let The Cameras Roll, Mimi Samuel

Faculty Articles

While the Supreme Court outlawed discrimination in jury selection over 40 years ago, both empirical studies and candid interviews show that lawyers routinely rely on characteristics such as race, gender, and religion in striking prospective jurors. In large part, this practice continues because, when challenged, attorneys proffer non-verbal factors such as facial expressions, inattentiveness, eye contact (or lack thereof), or even laughing or coughing to justify their peremptory strikes. Without a way to assess the validity of these reasons, the trial judge and then the appellate court on review, have little ability to enforce the anti-discrimination prohibition set forth in …

John Calmore’S America, Robert S. Chang, Catherine Smith

Faculty Articles

In their contribution to this symposium honoring Professor John Calmore, Professors Robert Chang and Catherine Smith analyze the recent school desegregation case, Parents Involved in Community Schools v. Seattle School District No. 1, through the lens of Professor Calmore's work. In particular, they locate this case as part of what Professor Calmore calls the Supreme Court's Racial Project. Understood as a political project that reorganizes and redistributes resources along racial lines, the Supreme Court's Racial Project creates a jurisprudence around race that solidifies the work of the new right and neoconservatives. Borrowing from Calmore's methodology, Professors Chang and Smith clarify …

The Poetry Of Law, Sidney Delong

Faculty Articles

This article examines the literature of statutory drafting. This underappreciated genre is perhaps the last place one would expect to find a sensitive soul struggling to escape the prison house of language. Yet the economic realities facing today's graduate students mean that many former lit majors will find their way onto legislative drafting committees, whence they peek out at us from under the sub-sections of their lives. It is time that this genre was formally recognized. Of course, its artists struggle against the challenge of the form and their achievements must be measured in millimeters rather than miles. This article …

The Parent Trap: Differential Familial Power In Same-Sex Families, Deirdre Bowen

Faculty Articles

Do intact same-sex couples where one member of the couple became pregnant with assisted reproduction or was the primary adopter, and the other member became a parent through second parent adoption, understand the legal protections afforded them? In short the answer is no. An interesting family dynamic arises around those who can claim the true status as parent based on their legal understandings of parenthood and their interactions with the dominant culture. The result of research conducted on this issue indicated that second parent adopters had much less emotional power in the family, but often had more economic power. Even …

You Are Not In Kansas Anymore: Orientation Programs Can Help Students Fly Over The Rainbow, Paula Lustbader

Faculty Articles

Analogizing Oz to Law School, this article discusses the role of orientation in the law school curriculum and offers implementation strategies to develop an effective orientation. An effective and comprehensive orientation program for law school would have many goals: it should attempt to construct the profession as a calling; create syntactical, substantive, and pedagogical context; communicate care and model empathy and compassion; cultivate community to promote mutual respect, cultural competence, and interdependence; and confirm student self-confidence. In addition to explaining why these are important goals, the article explores possible ways of achieving those goals. It ends with models of different …

Remedial Approaches To Human Rights Violations: The Inter-American Court Of Human Rights And Beyond, Tom Antkowiak

Faculty Articles

A sustained reflection upon remedial obligations and possibilities is particularly necessary at this juncture in the development of international law, where important mechanisms with reparative functions have recently sprung up around the world: the International Criminal Court, the African Court of Human Rights, and several national schemes, as a result of proliferating transitional justice initiatives. This article argues for a remedial model that emphasizes the restorative measures of satisfaction and rehabilitation, as well as general assurances of non-repetition. The work first examines the case law of the Inter-American Court of Human Rights, the only international human rights body with binding …

Theology In Public Reason And Legal Discourse: A Case For The Preferential Option For The Poor, Russell Powell

Faculty Articles

There is a strange disconnect between the formal understanding of the separation of religion from government in the United States and the almost ubiquitous use of religious language in political discourse, not to mention the web of complicated religious motivations that sit on or just below the surface of policy debates. This paper presents an argument for the relevance of the principle of the "preferential option for the poor" from Catholic social thought in public reason and legal discourse in order to explore the possible advantages of making the veil between religion and the secular state more permeable. As a …

The Fundamental Goal Of Antitrust: Protecting Consumers, Not Increasing Efficiency, Jack Kirkwood

Faculty Articles

This article defines the relevant economic concepts, summarizes the legislative histories, analyzes recent case law in more depth than any prior article, and explores the most likely bases for current popular support of the antitrust laws. All these factors indicate that the ultimate goal of antitrust is not to increase the total wealth of society, but to protect consumers from behavior that deprives them of the benefits of competition. When conduct presents a conflict between protecting consumers and improving the efficiency of the economy (e.g., a merger that raises prices but reduces costs), no court in recent years has chosen …

Revisiting The Rules Of Evidence And Procedure In Adversarial Immigration Proceedings, Won Kidane

Faculty Articles

This article addresses the concern over the state of deportation proceedings in the United States. Professor Kidane argues that a lack of formal rules of procedure and evidence is the main factor contributing to the unpredictability, and inconsistency inherent in our system of immigration law. The argument is placed in context by reviewing the growth of the administrative agencies up through the adoption of the Administrative Procedure Act (APA). Kidane notes that the APA embodies one approach as a compromise between those advocating strict formal rules of procedure and evidence and those supporting a more relaxed system for administrative proceedings. …