Law Commons^™

Attacking Innovation, Jeffrey A. Maine

Faculty Publications

Economists generally agree that innovation is important to economic growth and that government support for innovation is necessary. Historically, the U.S. government has supported innovation in a variety of ways: (1) a strong legal system for patents; (2) direct support through research performed by government agencies, grants, loans, and loan guarantees; and (3) indirect support through various tax incentives for private firms. In recent years, however, we have seen a weakening of the U.S. patent system, a decline in direct funding of research, and a weakening of tax policy tools used to encourage new innovation. These disruptive changes threaten the …

Traditional Ecological Knowledge In Environmental Decisionmaking, Anthony Moffa

Faculty Publications

Traditional ecological knowledge (TEK) is defined as a deep understanding of the environment developed by local communities and indigenous peoples over generations. In the United States, Canada, and around the world, indigenous peoples are increasingly advocating for incorporation of TEK into a range of environmental decisionmaking contexts, including natural resource and wildlife management, pollution standards, environmental and social planning, environmental impact assessment, and adaptation to climate change. On October 31, 2018, ELI hosted an expert panel on TEK, co-sponsored by the National Native American Bar Association and the American Bar Association Section of Environment, Energy, and Resources. The panel discussed …

Book Review: Abortion Rights: For And Against, Michelle Oberman, Julia D. Hejduk

Faculty Publications

No abstract provided.

Blurred Justice, Allen Madison, Paul Lombardi

Faculty Publications

This article discusses a recent controversial copyright case involving inspiration. Marvin Gaye's family, who owns the copyright to "Got to Give It Up," claimed that "Blurred Lines," made famous by Robin Thicke, in fringes on the family's copyright. The Gaye family prevailed at trial. At summary judgment, the Federal District Court permitted the case to go to trial without determining whether there were elements to "Got to Give It Up" that were unprotected as unoriginal, commonplace musical ideas, or musical building blocks. Had the court made such a determination, it is doubtful the case would have gone to trial. The …

Purpose Trust Cy Pres, Thomas Simmons

Faculty Publications

No abstract provided.

All The News That's Fit To Hide: Sexual Assault And Silence In Hollywood And The Lawyers Who Let It Happen, Neil Fulton

Faculty Publications

Hollywood stars and moguls, sexual misconduct and harassment, investigative journalism, espionage, and unethical lawyer conduct-all this and more is on display in Ronan Farrow's Catch and Kill: Lies, Spies, and a Conspiracy to Protect Predators. Working for NBC News and then The New Yorker, Farrow investigated allegations of serial sexual assault by Harvey Weinstein. He readily found women who said they had been assaulted by Weinstein, but getting those stories to the public required navigating an obstacle course of non-disclosure agreements, corporate legal departments, unethical conduct by Weinstein's legal team, and even being followed by spies. In the end, however, …

Law, War, And Four Modes Of Conflict, Gregory Brazeal

Faculty Publications

The Internationalists argues that the outlawing of war as an instrument of state policy in the Kellogg-Briand Pact of 1928 "was among the most transformative events in human history, one that has, ultimately, made our world far more peaceful. " The authors' evidence for this provocative thesis is ultimately unpersuasive. First, changes that they attribute to the Pact began before its creation, as illustrated, for example, by the ban on debt collection wars in the second convention of the Hague Conventions of 1907. Second, their own historical data on wars of conquest suggests that the year 1928 was not a …

‘I Was So Much Older Then/I’M Younger Than That Now’: Valedictory Notes And Collage, Frank Pommersheim

Faculty Publications

No abstract provided.

Of Piketty And Perpetuities: Dynastic Wealth In The Twenty-First Century (And Beyond), Eric Kades

Faculty Publications

For the first time since independence, in a nation founded in large part on the rejection of a fixed nobility determined by birth and perpetuated by inheritance, America is paving the way for the creation of dynastic family wealth. Abolition of the Rule Against Perpetuities in over half the states along with sharp reductions in, and likely elimination of, the federal estate tax mean that there soon will be no obstacles to creating large pools of dynastic wealth insuring lavish incomes to heirs for generations without end. The timing of these legal changes could hardly be worse. Marshaling innovative economic …

Cryptocurrency Hard Forks And Revenue Ruling 2019-24, Eric D. Chason

Faculty Publications

No abstract provided.

Temple, Talmud, And Sacrament: Some Christian Thoughts On Halakhah, Nathan B. Oman

Faculty Publications

No abstract provided.

Cutting Pension Rights For Public Workers: Don't Look To The Courts For Help, Ronald H. Rosenberg

Faculty Publications

Every day we rely on public employees to provide us with a broad range of services necessary to daily life. These workers include public school teachers, fire and police, emergency medical technicians, park rangers, nurses just to name a few. As public employees, these people work for local and state government and they are compensated by us for their services through the taxes we pay. In general, these are modestly paid workers who also receive pensions when they retire after many years of work. Following the financial crisis of 2008-2009, government retirement trust funds significantly lost value and their long-term …

The Ironic Privacy Act, Margaret Hu

Faculty Publications

This Article contends that the Privacy Act of 1974, a law intended to engender trust in government records, can be implemented in a way that inverts its intent. Specifically, pursuant to the Privacy Act's reporting requirements, in September 2017, the U.S. Department of Homeland Security (DHS) notified the public that record systems would be modified to encompass the collection of social media data. The notification justified the collection of social media data as a part of national security screening and immigration vetting procedures. However, the collection will encompass social media data on both citizens and noncitizens, and was not explicitly …

Mixed Signals: What Can We Expect From The Supreme Court In This Post-Ada Amendments Act Era?, Nicole Buonocore Porter

Faculty Publications

The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) was intended to breathe new life into the ADA after the courts, especially the Supreme Court, drastically narrowed the ADA’s protected class. But since the ADA was amended in 2008, the Supreme Court has not decided any ADA cases. Thus, there are many ADA issues, especially in the employment context, that remain unresolved. This paper will attempt to determine whether we can expect a disability-friendly Supreme Court or whether the Court will once again narrowly construe individuals with disabilities’ rights under the ADA.

This abstract has been taken from the …

When Legislatures Become The Ally Of Academic Freedom: The First State Intellectual Diversity Statute And Its Effect On Academic Freedom, Patrick Garry

Faculty Publications

In reaction to events suggesting a free speech problem on its state university campuses, the South Dakota Legislature recently passed an Intellectual Diversity Act applicable to public universities in the state.  The Act coincided with President Trump’s executive order conditioning federal funding on free speech protections at the nation’s institutions of higher education.  Claims of academic freedom infringement accompanied passage of the South Dakota Act.  This Article examines those claims by analyzing the goals and principles of academic freedom and comparing them with the goals and effects of the South Dakota Act.

Just Transitions, Ann M. Eisenberg

Faculty Publications

The transition to a low-carbon society will have winners and losers as the costs and benefits of decarbonization fall unevenly on different communities. This potential collateral damage has prompted calls for a “just transition” to a green economy. While the term, “just transition,” is increasingly prevalent in the public discourse, it remains under-discussed and poorly defined in legal literature, preventing it from helping catalyze fair decarbonization. This Article seeks to define the term, test its validity, and articulate its relationship with law so the idea can meet its potential.

The Article is the first to disambiguate and assess two main …

Marketing Legal Assistance, Elizabeth Chambliss

Faculty Publications

Much of the American conversation about access to justice focuses on regulatory barriers to new forms of service delivery and treats regulatory resistance as the primary problem to be solved. Meanwhile, obstacles to consumer awareness and engagement have received less attention. This essay reverses the order of analysis and considers strategies for expanding access first from a marketing perspective. What models of legal assistance have been most successful in building consumer awareness and trust? To what extent can successful marketing help to sidestep or overcome regulatory resistance? And what are the implications for reformers interested in expanding access to justice?

Evidence-Based Lawyer Regulation, Elizabeth Chambliss

Faculty Publications

The legal profession is losing its authority over the regulation of legal services. Recent changes in antitrust law have put state bar associations under a spotlight. Competition from technology companies and concerns about access to justice have increased political pressure for market liberalization. Independent research is challenging the unique value of lawyers’ services, even in formal legal proceedings, and this research is increasingly well-organized and well-funded at the national level. The organized bar is asleep at the wheel and ill-prepared to respond.

This Article argues that the United States is moving toward evidence-based lawyer regulation, and suggests strategies for equipping …

The School Civil Rights Vacuum, Emily Suski

Faculty Publications

Recent cases of pervasive sex abuse at universities, including those committed by Larry Nassar at Michigan State University and by Jerry Sandusky at Pennsylvania State University, demonstrate the limitations of Title IX as a tool for protecting college students. What has gone far less recognized is that in the K–12 public school context, Title IX and other civil rights laws, including the Fourteenth Amendment, are at least as ineffective at protecting students from sexual, physical, and verbal abuse and harassment. Public school students rarely succeed on Fourteenth Amendment or Title IX claims, even in some of the most egregious cases. …

Dismantling The Master's House: Toward A Justice-Based Theory Of Community Economic Development, Etienne C. Toussaint

Faculty Publications

Since the end of the American Civil War, scholars have debated the efficacy of various models of community economic development, or CED. Historically, this debate has tracked one of two approaches: place-based models of CED, seeking to stimulate community development through market-driven economic growth programs, and people-based models of CED, focused on the removal of structural barriers to social and economic mobility that prevent human flourishing. More recently, scholars and policymakers have turned to a third model from the impact investing community — the social impact bond, or SIB. The SIB model of CED ostensibly finds a middle ground by …

Wannacry, Ransomware, And The Emerging Threat To Corporations, Lawrence J. Trautman, Peter Ormerod

Faculty Publications

The WannaCry ransomware attack began on May 12, 2017, and is unprecedented in scale-quickly impacting nearly a quarter-million computers in over 150 countries. The WannaCry virus exploits a vulnerability to Microsoft Windows that was originally developed by the U.S. National Security Agency and operates by encrypting a victim's data and demanding payment of a ransom in exchange for data recovery. Security experts have indicated that a North Korea- linked group of hackers-who have also been implicated in cyberattacks against Sony Pictures in 2014, the Bangladeshi Central Bank in 2016, and Polish banks in February 2017-is behind the attack.

Ransomware threatens …

Abstraction,Filtration, And Comparison In Patent Law, Michael Risch

Faculty Publications

No abstract provided.

Comparative Analysis Of Innovation Failures And Institutions In Context, Brett Frischmann, Mark P. Mckenna

Faculty Publications

Many different legal and non-legal institutions govern and therefore shape knowledge production. It is tempting, given the various types of knowledge, knowledge producers, and systems with and within which knowledge and knowledge producers and users interact, to look for reductionist shortcuts—in general, but especially in the context of comparative institutional analysis. The temptation should be resisted for it leads to either what Harold Demsetz called the Nirvana Fallacy or what Elinor Ostrom critiqued as myopic allegories.

One easy reductionist step is to focus on a particular dilemma—a particular market failure, for example, ignoring or assuming away others—and then compare institutions …

The Futility Of Walls: How Traveling Corporations Threaten State Sovereignty, Darren Rosenblum

Faculty Publications

Inversions—mergers in which one firm merges with another abroad to avoid taxes in its home country—have spread as globalization has reduced many of the transactional costs associated with relocating. As firms acquire the power to choose the laws that govern them, they challenge the sovereignty of nation-states, who find their ability to tax and regulate firms depleted. States and firms compete in a game of cat and mouse to adapt to this new global reality. The subversion of state power by these firms reveals the futility of walls, both literal and regulatory. This Essay describes the phenomenon of these “traveling …

Technology In Legal Practice: Keeping Ethical Obligations In Mind, Teresa J. Verges, Christine Lazaro

Faculty Publications

(Excerpt)

The use of technology in the legal profession is ubiquitous, expanding, and ever changing. Lawyers connect with their clients, co-workers, and others through email. Cloud computing has allowed lawyers to create virtual and mobile workspaces, providing them with accessibility to client files and resources anywhere in the world. Social media allows lawyers to showcase their expertise and build their practice. Technology has undoubtedly impacted how lawyers provide legal services to their clients. However, as lawyers, we remain subject to long-standing professional and ethical obligations that govern our practice. This article explores how commonly used technology in legal practice implicates …

All Things Considered: The Effect On Tribal Sovereignty Of Using Tribal Court Convictions In The United States Sentencing Guideline Calculations, Neil Fulton

Faculty Publications

No abstract provided.

The Law School Dean Game: "What's It Like To Be A Law School Dean?", Thomas Geu

Faculty Publications

No abstract provided.

Rural Practice As Public Interest Work, Hannah Haksgaard

Faculty Publications

As the rural lawyer shortage continues to grow, rural states and communities must find new ways of attracting law students and graduates to rural practice. This Article explores incentives based on conceptualizing rural private practice as public interest work. Rural lawyers provide public interest lawyering through pro bono cases, mixed practices, community service, and even through providing fee-paid services in rural communities. The Article asserts that law schools and rural communities can capitalize on this view to recruit new lawyers and argues that federal loan forgiveness programs should be expanded to cover rural lawyers.

Blending Surnames At Marriage, Hannah Haksgaard

Faculty Publications

In most states, marrying couples are severely limited in their surname choices at the time of marriage. While recent scholarship has focused on men’s limited surname choices, other important problems with the marital surname process exist. For example, the increasingly popular decision to blend surnames—taking parts of both current surnames to create an entirely new surname—is generally not allowed. Four states explicitly allow for surname blending on the marriage license, and three more allow for any surname to be adopted. This article argues the remaining states should follow suit by allowing surname blending and other surname options. In addition to …

United States V. Gillette: A Tiny Prairie Case Note Opening A Window On The Enveloping Fog Obscuring The Indian Civil Rights Act Of 1968, Frank Pommersheim

Faculty Publications

United States v. Gillette is one of the first reported cases on the new post-United States v. Bryant road. As of yet, there is no reliable (legal) GPS to point the way. This "tiny prairie" casenote is not meant to focus on the answers, but rather to clarify the questions and to widen the discussion as the journey continues.