Law Commons^™

Timeout For Sports Trademark Overprotection: Comparing The United States, European Union, And United Kingdom, Jodi S. Balsam

Faculty Scholarship

No abstract provided.

From Pandemic To Pedagogy: Teaching The Technology Of Lawyering In Law Clinics, Sarah R. Boonin, Luz E. Herrera

Faculty Scholarship

The COVID-19 pandemic has transformed the nation’s approach to work and learning. Law schools, law firms, courts, and administrative agencies abruptly closed their offices and quickly reimagined how to perform their daily functions remotely. Many of these institutions have plans to maintain aspects of remote operations and services post-pandemic. With this in mind, the authors of this Article conducted a survey of law school clinical faculty during the winter of 2021 to better understand how clinicians pivoted their instruction and practice using technology during the pandemic. The authors use the survey results to show how the COVID-19 experience positions clinical …

The U.S.-China Forced Technology Transfer Dispute, Peter K. Yu

Faculty Scholarship

The past few years have seen not only a trade war between China and the United States involving tariffs on close to $750 billion worth of goods, but also multiple complaints filed by both countries before the WTO Dispute Settlement Body. A key driver behind these ongoing tensions and conflicts concerns the challenges confronting U.S. technology companies—both online and offline. Although the inadequate protection and enforcement of intellectual property rights in China has been the subject of a perennial debate since the mid-1980s, the recent concerns have raised new issues that have been lumped together under the umbrella of "forced …

Introductory Note To Prosecutor V. Ratko Mladić (U.N. Int’L Residual Mechanism Crim. Tribunals App. Chamber), Steven Arrigg Koh

Faculty Scholarship

On June 8, 2021, the UN International Residual Mechanism for Criminal Tribunals (Mechanism) Appeals Chamber delivered its appeals judgment in Prosecutor v. Ratko Mladić. The judgment affirmed the 2017 trial judgment of Trial Chamber I of the UN International Criminal Tribunal for the former Yugoslavia (ICTY), which convicted Mladić, the Bosnian Serb commander, of genocide, crimes against humanity, and war crimes during the war in Bosnia between 1992 and 1995, as well as affirming his sentence of life imprisonment. This constituted Mladić’s final appeal, opening the door for his assignment to a prison somewhere in Europe.

Patient Access In Fourteen High-Income Countries To New Antibacterials Approved By The Fda, Ema, Pmda, Or Health Canada, 2010-2020, Kevin Outterson, Ebiowei S. F. Orubu, John Rex, Christine Årdal, Muhammad H. Zaman

Faculty Scholarship

In 2010, the Infectious Diseases Society of America called for 10 new antibiotics by 2020. This goal was achieved in terms of the number of drug approvals, but actual patient access requires commercial launches in many countries, which itself requires sustainable commercial markets. Prior work has described limited access to new antibacterials in low- and middle-income countries (LMICs), in part due to the inability of many to afford these drugs. This study examines patient access for new antibacterials in the G7 and 7 other high-income countries in Europe, to better understand other barriers to patient access to effective antibacterial therapy.

Steering Loan Modifications Post-Pandemic, Pamela Foohey, Dalié Jiménez, Christopher K. Odinet

Faculty Scholarship

As part of federal and state relief programs created during the COVID-19 pandemic, many American households received pauses on their largest debts, particularly on mortgages and student loans. Others may have come to agreements with their lenders, likewise pausing or altering payment on other debts, such as auto loans and credit cards. This relief allowed households to allocate their savings and income to necessary expenses, like groceries, utilities, and medicine. But forbearance does not equal forgiveness. At the end of the various relief periods and moratoria, people will have to resume paying all their debts, the amounts of which may …

Inside The Black Box Of Prosecutor Discretion, Shima Baradaran Baughman, Megan S. Wright, Christopher T. Robertson

Faculty Scholarship

In their charging and bargaining decisions, prosecutors have unparalleled and nearly-unchecked discretion that leads to incarceration or freedom for millions of Americans each year. More than courts, legislators, or any other justice system player, in the aggregate prosecutors’ choices are the key drivers of outcomes, whether the rates of mass incarceration or the degree of racial disparities in justice. To date, there is precious little empirical research on how prosecutors exercise their breathtaking discretion. We do not know whether they consistently charge like cases alike or whether crime is in the eye of the beholder. We do not know what …

Creating Lightbulb Moments: Developing Higher-Order Thinking In Family Law Classrooms Through Court Observations, Sonia Gipson Rankin

Faculty Scholarship

This article fills a critical gap in the family law literature by arguing that teaching doctrinal family law in conjunction with the application of established learning theory and pedagogy yields a deeper engagement with the subject matter and leads to more practice-ready lawyers. ABA Standards 301, 303, and 304 do not clearly articulate the distinction between experiential education and experiential learning; doctrinal law classrooms are often bereft of experiential learning activities. By incorporating active learning and inclusive pedagogy in the doctrinal classroom and following recommendations from the MacCrate Report and Family Law Education Reform Project, students will be better prepared …

Against Political Speech, John M. Kang

Faculty Scholarship

The Supreme Court has dedicated itself to the proposition that political speech, more than any other category of speech, is deserving of the highest protection. A succession of cases amply supports this proposition. In Virginia v. Black, the Court announced that "lawful political speech [is] at the core of what the First Amendment is designed to protect." The Court similarly declared in Monitor Patriot Co. v. Roy that the First Amendment "has its fullest and most urgent application" to political speech. In McIntyre v. Ohio Elections Commission, the Court held that "handing out leaflets in the advocacy of …

Sheriffs, State Troopers, And The Spillover Effects Of Immigration Policing, Huyen Pham, Pham Hoang Van

Faculty Scholarship

As the Biden Administration decides whether to continue the 287(g) program (the controversial program deputizing local law enforcement officers to enforce federal immigration laws), our research shows that the program has broader negative effects on policing behavior than previously identified. To date, debate about the 287(g) program has focused exclusively on the policing behavior of law enforcement agencies like sheriff’s offices that sign the agreements, and on concerns that these signatory local enforcement agencies (“LEAs”) engage in racial profiling. Our research shows that the agreements also negatively affect the behavior of nearby, nonsignatory law enforcement agencies. Using 18 million traffic …

Infusing Leadership Competencies Into 1l Professional Identity Formation, Aric Short

Faculty Scholarship

Law schools across the country are beginning to address the growing need to incorporate leadership training into their curricula; however, very few explicitly cover leadership in the 1L year. This article argues for the value of providing leadership training to 1Ls as part of a required course on professional identity formation. Because foundational leadership concepts overlap in meaningful ways with core lawyering competencies, such integration is both practical and efficient. Beginning leadership in the 1L year allows law schools to build on that foundational material in later clinics, externships, upper-level classes, and other experiences, creating deeper leadership skills in their …

Teaching And Assessing Active Listening As A Foundational Skill For Lawyers As Leaders, Counselors, Negotiators, And Advocates, Lindsey P. Gustafson, Aric Short, Neil W. Hamilton

Faculty Scholarship

Our students will be more effective leaders, counselors, negotiators, and advocates as they deepen their ability to actively listen. As a professional and interpersonal skill linked closely with a lawyer’s success, our students’ ability to listen should demand our attention as legal educators. This attention is worth the effort because studies indicate active listening is not a static ability: we can teach students to be better listeners. But “active listening” is missing from most law schools’ learning outcomes or curricula, or it is only included as an undefined element of effective communication. Consequently, it is a critical lawyering skill that …

The Long And Winding Road To Effective Copyright Protection In China, Peter K. Yu

Faculty Scholarship

In November 2020, China adopted the Third Amendment to the Copyright Law, providing a major overhaul of its copyright regime. This Amendment entered into effect on June 1, 2021. The last time the regime was completely revamped was in October 2001, when the Copyright Law was amended two months before China joined the World Trade Organization. While U.S. policymakers and industry groups have had mixed reactions to the recent Amendment, the new law presents an opportunity to take stock of the progress China has made in the copyright reform process. This Article begins by mapping the long and winding road …

Transplanting Anti-Suit Injunctions, Peter K. Yu, Jorge L. Contreras, Yu Yang

Faculty Scholarship

When adjudicating high-value cases involving the licensing of patents covering industry standards such as Wi-Fi and 5G (standards-essential patents or SEPs), courts around the world have increasingly issued injunctions preventing one party from pursuing parallel litigation in another jurisdiction (anti-suit injunctions or ASIs). In response, courts in other jurisdictions have begun to issue anti-anti-suit injunctions, or even anti-anti-anti suit injunctions, to prevent parties from hindering the proceedings in those courts. Most of these activities have been limited to the United States and Europe, but in 2020 China emerged as a powerful new source of ASIs in global SEP litigation. The …

Transboundary Aquifers, Raya Marina Stephan, Alice Aureli, Aurélien Dumont, Annukka Lipponen, Sarah Tiefenauer-Linardon, Christina Fraser, Alfonso Rivera, Shammy Puri, Stefano Burchi, Gabriel Eckstein, Christian Brethaut, Ziad Khayat, Karen Villholth, Lesha Witmer, Renee Martin-Nagle, Anita Milman, Francesco Sindico, James Dalton

Faculty Scholarship

This chapter gives an overview of the status of transboundary aquifers and the cooperation related to shared groundwater resources, highlighting the complexity of the assessment, analysis and management of these systems. It summarizes the main challenges regarding transboundary aquifers and the need for more comprehensive and integrated management, which would include technical, legal and organizational aspects as well as training and cooperation.

Groundwater Policy And Planning, Jenny Grönwall, Marianne Kjellén, Gabriel Eckstein, Kerstin Danert, Lesha Witmer, Rebecca Welling, Viviana Re, Katharina Davis, Lulu Zhang

Faculty Scholarship

Groundwater policy defines objectives, ambitions and priorities for managing groundwater resources, for the benefit of society. Planning translates policy into programmes of action. Both are often part of a wider water resource policy and planning framework, but the specific challenges pertaining to groundwater have traditionally received less attention than surface water.

The terms ‘policy,’ ‘strategy’ and ‘plans’ are used interchangeably in many countries and contexts.

Legal And Other Institutional Aspects Of Groundwater Governance, Jenny Grönwall, Marianne Kjellén, Alice Aureli, Stefano Burchi, Mohamed Bazza, Raya Marina Stephan, Gabriel Eckstein, Lesha Witmer, Margreet Zwarteveen, Aurélien Dumont, Danielle Gaillar-Picher, Rio Hada, Rebecca Welling, Maki Tsujimura

Faculty Scholarship

This chapter defines the linked concepts of groundwater governance and groundwater management, explaining how they differ from each other. Then, it describes the prevailing legal instruments for, and the institutional aspects of, groundwater management and governance.

Paths To Downstream Innovation, Janet Freilich

Faculty Scholarship

All innovation is "downstream innovation" - research that builds on prior discoveries. Patent law has an outsized influence on downstream innovation because such innovation often falls within the scope of an in-force upstream patent. In these cases, innovators cannot conduct even the most basic research towards downstream technologies without addressing the upstream patent. Because upstream patents block downstream research, and it is often impractical to license the upstream patent, downstream researchers frequently exploit a group of doctrines that permit research to proceed even in the presence of an otherwise blocking patent.

This Article presents the first systematic review of the …

Llegaron Los Federales: The Federal Government’S Prosecution Of Local Criminal Activity In Puerto Rico, Emmanuel Hiram Arnaud

Faculty Scholarship

In the midst of a debilitating humanitarian crisis in Puerto Rico and high-profile litigation concerning other U.S. territories, scholars, political leaders, and activists have elevated conversations of constitutionally sanctioned inequality into the public spotlight. With respect to Puerto Rico, these conversations focus on its current economic morass and relation to the debate over decolonization. Absent from these important discussions is the role that federal criminal law plays in manifesting Congress’ continued plenary power over U.S. territories. This Article breaks from that pattern and highlights an ignored part of federal criminal jurisprudence: the federal prosecution of local criminal activity in Puerto …

Creating Tomorrow’S Change-Makers: Using Alternative Media In The 1l Skills Classroom To Connect Students With Real Practice And Enhance Established Methods For Teaching Appellate Advocacy, Marni Goldstein Caputo, Kathleen Luz

Faculty Scholarship

Fostering that idea of lawyers as change-makers can be difficult in the typical 1L curriculum. The traditional, doctrinal law school classroom typically has a formula comprised of extensive textbook reading, the Socratic classroom, in which that reading is processed in a large group, and, finally, a cumulative, high-stakes exam at the end of the semester.⁶ That formula has largely not changed for decades.⁷ The lawyering skills classroom is often the only outlier from that formula for first-year law students.⁸ Even so, the skills classroom can be formulaic in its own right—introduction of an assignment, classroom instruction regarding …

Bargaining For Abolition, Zohra Ahmed

Faculty Scholarship

What if instead of seeing criminal court as an institution driven by the operation of rules, we saw it as a workplace where people labor to criminalize those with the misfortune to be prosecuted? Early observers of twentieth century urban criminal courts likened them to factories.¹ Since then, commentators often deploy the pejorative epithet “assembly line justice” to describe criminal court’s processes.² The term conveys the criticism of a mechanical system delivering a form of justice that is impersonal and fallible. Perhaps unintentionally, the epithet reveals another truth: criminal court is also a workplace, and it takes labor …

The Right To Counsel In A Neoliberal Age, Zohra Ahmed

Faculty Scholarship

Legal scholarship tends to obscure how changes in criminal process relate to broader changes in the political and economic terrain. This Article offers a modest corrective to this tendency. By studying the U.S. Supreme Court’s right to counsel jurisprudence, as it has developed since the mid-70s, I show the pervasive impact of the concurrent rise of neoliberalism on relationships between defendants and their attorneys. Since 1975, the Court has emphasized two concerns in its rulings regarding the right to counsel: choice and autonomy. These, of course, are nominally good things for defendants to have. But by paying close attention to …

A Comparative Perspective On Safe Third And First Country Of Asylum Policies In The United Kingdom And North America: Legal Norms, Principles And Lessons Learned, Susan M. Akram, Elizabeth Ruddick

Faculty Scholarship

Wealthy refugee-receiving countries across the global north have recently been experimenting with systems that they believe will allow them lawfully to remove or turn back asylum-seekers reaching their borders, without considering their claims for international protection. These include the Trump administration's Asylum Cooperation Agreements (ACAs), the United Kingdom's Nationality and Borders Act, and the recent amendments to Denmark's Aliens Act that will allow asylum-seekers to be transferred to third countries for processing. Although these systems have many important differences, they rest on a shared premise that neither the Refugee Convention nor international, regional or domestic human rights laws prohibit such …

Sy-Stem-Ic Bias: An Exploration Of Gender And Race Representation On University Patents, Jordana Goodman

Faculty Scholarship

People of color and women are underrepresented in science, technology, engineering and math (“STEM”) fields in the United States. Through both intentional and unintentional structural barriers, universities continue to lose valuable intellectual resources by perpetuating a lack of gender, racial, and ethnic diversity as people climb the academic ladder. Identifying racial and gender disparities between university campus populations and their patent representation quantifies the qualitatively observed systemic racism and sexism plaguing STEM. Although many have written about racial and gender underrepresentation in STEM, no author has ever endeavored to simultaneously quantify the racial and gender gap at universities in the …

Judicial Philosophy 2022: Ethics & Professionalism In Appellate Decision-Making, Verónica C. Gonzales

Faculty Scholarship

Handout

Virtual Continuing Legal Education Program, Judicial Education Center, University of New Mexico School of Law

Judicial philosophy often plays a role in judicial appointments and elections. Members of the public ask candidates about their approach to the decision-making and law-making functions of the courts. The panel will delve into the ethical implications and challenges of serving on a court whose primary functions are error correction, statutory and regulatory interpretation, determinations of public policy, and development of common law. In discussing their personal philosophies and the challenges of deciding cases in panels, the panelists will also emphasize the impact of …

Countering Gerrymandered Courts, Jed Handelsman Shugerman

Faculty Scholarship

The key insight in Professor Miriam Seifter's outstanding article Countermajoritarian Legislatures is that state legislatures are usually antidemocratic due to partisan gerrymandering, whereas state governors and judiciaries are insulated from gerrymandering by statewide elections (or selection), and thus they should have a more prominent role in framing election law and in enforcing the separation of powers.

This Piece offers afriendly amendment: These observations are true, so long as states do not gerrymander their state supreme courts into antidemocratic districts. The problem is that historically, judicial elections emerged generally as districted elections, and often with regional and partisan politics shaping those …

Where Is The “Public” In American Public Health? Moving From Individual Responsibility To Collective Action, Cecília Tomori, Dabney P. Evans, Aziza Ahmed, Aparna Nair, Benjamin Mason Meier

Faculty Scholarship

American individualism continues to prove incommensurate to the public health challenge of COVID-19. Where the previous US Administration silenced public health science, neglected rising inequalities, and undermined global solidarity in the early pandemic response, the Biden Administration has sought to take action to respond to the ongoing pandemic. However, the Administration's overwhelming focus on individual responsibility over population-level policy stands in sharp contrast to fundamental tenets of public health that emphasize “what we, as a society, do collectively to assure the conditions for people to be healthy”. When this misalignment of individual responsibility and public health initially became clear with …

The Epistemology Of Second Best, Gary S. Lawson

Faculty Scholarship

Second best theory “holds that where it is not possible to satisfy all the conditions necessary for a[] . . . system to reach an overall optimum, it is not generally desirable to satisfy as many of those conditions as possible.” Adrian Vermeule, Foreword: System Effects and the Constitution, 123 HARV. L. REV. 4, 17 (2009). In other words, if you are not moving all the way to the ideal state of affairs, it is unclear whether partial moves that seem to go in the direction of the ideal make the world “better” or “worse” – with “better” or “worse” …

Ethical Ai Development: Evidence From Ai Startups, James Bessen, Stephen Michael Impink, Lydia Reichensperger, Robert Seamans

Faculty Scholarship

Artificial Intelligence startups use training data as direct inputs in product development. These firms must balance numerous trade-offs between ethical issues and data access without substantive guidance from regulators or existing judicial precedence. We survey these startups to determine what actions they have taken to address these ethical issues and the consequences of those actions. We find that 58% of these startups have established a set of AI principles. Startups with data-sharing relationships with high-technology firms; that were impacted by privacy regulations; or with prior (non-seed) funding from institutional investors are more likely to establish ethical AI principles. Lastly, startups …

Regulating Natural Gas Venting And Flaring As Waste: A Review Of The New Mexico Approach, Joseph A. Schremmer

Faculty Scholarship

Special issue: Law and Policy for Gas Flaring in a Low-Carbon Economy.

This essay interrogates the regulation of routine venting and flaring of natural gas as a source of prohibited “waste,” using New Mexico’s recently adopted Waste Rule as an example. It begins with a survey of both the environmental and economic benefits to be achieved by limiting or eliminating venting and flaring and the direct and indirect costs of doing so, including the forgone opportunity to produce crude oil. Then the essay explains the common law and statutory definitions of “waste” to demonstrate that the concept implicates a balancing …