Law Commons^™

Privacy, Press, And The Right To Be Forgotten In The United States, Amy Gajda

Faculty Scholarship

No abstract provided.

Tracing Equity: Realizing And Allocating Value In Chapter 11, Edward J. Janger, Melissa B. Jacoby

Faculty Scholarship

No abstract provided.

Design Center Leasing - A Hybrid Approach, Richard J. Sobelsohn

Faculty Scholarship

No abstract provided.

Exposing Secret Searches: A First Amendment Right Of Access To Electronic Surveillance Orders, Hannah Bloch-Wehba

Faculty Scholarship

Although, as a rule, court proceedings and judicial records are presumptively open to the public, electronic surveillance documents are exceptions. Like ordinary search warrants, surveillance applications are considered ex parte. But court orders frequently remain sealed indefinitely, even when there is no basis for continued secrecy. Indeed, secrecy — in the form of gag orders, local judicial rules, and even clerical filing and docketing practices — is built into the laws that regulate electronic surveillance.

This Article argues that this widespread secrecy violates the First Amendment right of access to court proceedings and documents. The history of search and seizure …

Invisible Adjudication In The U.S. Courts Of Appeals, Michael Kagan, Rebecca Gill, Fatma Marouf

Faculty Scholarship

Non-precedent decisions are the norm in federal appellate courts, and are seen by judges as a practical necessity given the size of their dockets. Yet the system has always been plagued by doubts. If only some decisions are designated to be precedents, questions arise about whether courts might be acting arbitrarily in other cases. Such doubts have been overcome in part because nominally unpublished decisions are available through standard legal research databases. This creates the appearance of transparency, mitigating concerns that courts may be acting arbitrarily. But what if this appearance is an illusion? This Article reports empirical data drawn …

Financial Regulation In The Bitcoin Era, William Magnuson

Faculty Scholarship

The recent decade has witnessed an extraordinary degree of innovation in the financial sector. Developments in financial technology, computing power, and networking theory have allowed decentralized online platforms such as Bitcoin to fundamentally change the way that financial services are provided. While these innovations have been applauded by many as bringing a welcome degree of competition to a sector long dominated by powerful incumbents, they also create a set of challenges for current financial regulation. How do fiduciary standards apply to algorithms? How does online finance affect the behavior of investors? And more generally, how can regulators monitor and constrain …

"Fake News," No News, And The Needs Of Local Communities, Carol Pauli

Faculty Scholarship

The Quaker authors had in mind an ancient truth - that "love endures and overcomes" - and they were convinced that this truth is accessible to all. This article addresses truth at a more immediate and mundane level. It is concerned with the accurate information that local communities need in order to thrive.

The article proceeds in three steps. Part I reviews one way community needs were addressed when the first large-scale electronic communication technology entered individual homes in the form of radio and television. In those days, broadcasters had an affirmative duty to ascertain the problems of the communities …

Adr And Access To Justice: Current Perspectives, Ellen E. Deason, Michael Z. Green, Donna Shestowsky, Rory Van Loo, Ellen Waldman

Faculty Scholarship

Extract:

I want to give you a roadmap for our program. We will not be delivering individual papers but, rather, hope to have a discussion. We are planning to spend thirty minutes on introductions for the purpose of allowing you to identify the source of each panelist's perspectives. We will then use an hour, more or less, for a discussion among the panel. That will leave fifteen minutes for audience questions and participation. Because we will be publishing an edited transcript, we ask that you hold your questions until the end.

Access to justice is a broad topic, and we …

The Network For Justice: Pursuing A Latinx Civil Rights Agenda, Luz E. Herrera, Pilar M. Hernández-Escontrías

Faculty Scholarship

This article explores the need to develop a Latinx-focused network that advances law and policy. The Network for Justice is necessary to build upon the existing infrastructure in the legal sector to support the rapidly changing demographic profile of the United States. Latinxs are no longer a small or regionally concentrated population and cannot be discounted as a foreign population. Latinxs reside in every state in our nation and, in some communities, comprise a majority of the population. The goal of the Network for Justice is to facilitate and support local and statewide efforts to connect community advocates to formal …

Allocating Patent Litigation Risk Across The Supply Chain, Michael J. Meurer

Faculty Scholarship

The paradigmatic defendant in a patent lawsuit is a vertically integrated manufacturer. But much economic activity is conducted collaboratively by a supply chain of vertically disintegrated firms, and sometimes multiple firms are implicated in infringing activities, by making, selling, or using patented technology, or by contributing to or inducing another firm’s infringement. Often patent owners have the option of suing some or all of the members of a supply chain who contribute to the design, creation and marketing of a new technology.

Businesses increasingly contemplate the risk of patent infringement when they negotiate contractual relations to form a supply chain. …

The Drug Debate: Data Exclusivity Is The New Way To Delay Generics, Srividhya Ragavan

Faculty Scholarship

The article discusses the protection regime for clinical trial data internationally and outlines the applicable protection regime. In doing so, this article outlines how the data exclusivity regime can operate in parallel with the patent regime to add a layer of protection for the data. Such protection operates at a regulatory level to delay the entry of generic medications. Internationally, the data exclusivity regime, which has become an important contemporary tool in trade negotiations with poorer nations, works to detrimentally affect access to medication

All Your Works Are Belong To Us: New Frontiers For The Derivative Work Right In Video Games, J. Remy Green

Faculty Scholarship

In copyright law, the author of an original work has the exclusive right to prepare further works derivative of that original. Video game developers’ works are protected by the Copyright Act. As video games take advantage of more advanced technology, however, players are doing more creative, interesting, and original things when they play games. Certain things players do create independent economic value and are the kinds of acts of original authorship our copyright system is designed to encourage. However, since the author of the video game is entitled to the full panoply of rights under the laws of the American …

Risk And Anxiety: A Theory Of Data Breach Harms, Danielle K. Citron, Daniel Solove

Faculty Scholarship

In lawsuits about data breaches, the issue of harm has confounded courts. Harm is central to whether plaintiffs have standing to sue in federal court and whether their claims are viable. Plaintiffs have argued that data breaches create a risk of future injury from identity theft or fraud and that breaches cause them to experience anxiety about this risk. Courts have been reaching wildly inconsistent conclusions on the issue of harm, with most courts dismissing data breach lawsuits for failure to allege harm. A sound and principled approach to harm has yet to emerge, resulting in a lack of consensus …

Critical Dialogue, James E. Fleming, Bruce P. Frohnen

Faculty Scholarship

It is a privilege to participate in this exchange with Bruce Frohnen concerning our books. In my Fidelity to Our Imperfect Constitution, I observe that in recent years, many have assumed that originalists have a monopoly on concern for fidelity in constitutional interpretation. I reject all forms of originalism and defend a moral reading of the United States Constitution. Such a conception views the Constitution as embodying abstract moral and political principles, not codifying concrete historical rules or practices. It sees interpretation of those principles as requiring normative judgments about how they are best understood, not merely historical research to …

Quick Decisions In Patent Cases, Paul Gugliuzza

Faculty Scholarship

Patent litigation is notoriously expensive and time consuming. In the past decade, however, patent law has changed in many ways that expedite resolution of infringement disputes. This article identifies and evaluates this trend toward quick decisions in patent cases. Balancing the savings in litigation costs against the potential for error, the article defends many recent and controversial developments, including the Supreme Court’s invigoration of the patent eligible subject matter requirement, the new administrative proceedings created by the America Invents Act, and changes in the requirements for pleading patent infringement. These developments permit defendants to obtain rulings of invalidity or noninfringement …

Response To Bruce Frohnen’S Review Of Fidelity To Our Imperfect Constitution: For Moral Readings And Against Originalisms, James E. Fleming, Bruce P. Frohnen

Faculty Scholarship

It is a privilege to participate in this exchange with Bruce Frohnen concerning our books. In my Fidelity to Our Imperfect Constitution, I observe that in recent years, many have assumed that originalists have a monopoly on concern for fidelity in constitutional interpretation. I reject all forms of originalism and defend a moral reading of the United States Constitution. Such a conception views the Constitution as embodying abstract moral and political principles, not codifying concrete historical rules or practices. It sees interpretation of those principles as requiring normative judgments about how they are best understood, not merely historical research to …

Customizing Fair Use Transplants, Peter K. Yu

Faculty Scholarship

In the past decade, policymakers and commentators across the world have called for the introduction of copyright reform based on the fair use model in the United States. Thus far, Israel, Liberia, Malaysia, the Philippines, Singapore, South Korea, Sri Lanka and Taiwan have adopted the fair use regime or its close variants. Other jurisdictions such as Australia, Hong Kong and Ireland have also advanced proposals to facilitate such adoption.

Written for a special issue on "Intellectual Property Law in the New Technological Age: Rising to the Challenge of Change?", this article examines the increasing efforts to transplant fair use into …

Free Trade In Electric Power, Joel B. Eisen, Felix Mormann

Faculty Scholarship

This Article develops the core legal framework of a new electricity-trading ecosystem in which anyone, anytime, anywhere, can trade electricity in any amount with anyone else. The proliferation of solar and other distributed energy resources, business model innovation in the sharing economy, and climate change present enormous challenges — and opportunities — for America’s energy economy. But the electricity industry is ill equipped to adapt to and benefit from these transformative forces, with much of its physical infrastructure, regulatory institutions, and business models a relic of the early days of electrification. We suggest a systematic rethinking to usher in a …

Contract, Promise, And The Right Of Redress, Andrew S. Gold

Faculty Scholarship

No abstract provided.

"They're Digging In The Wrong Place." How Learning Outcomes Can Improve Bar Exams And Ensure Practice Ready Attorneys, Debra Curtis

Faculty Scholarship

No abstract provided.

Beyond Intermediary Liability: The Future Of Information Platforms - Workshop Report, Tiffany Li

Faculty Scholarship

On February 13, 2018, WIII hosted the workshop, “Beyond Intermediary Liability: The Future of Information Platforms.” Leading experts from industry, civil society, and academia convened at Yale Law School for a series of non-public, guided discussions. The roundtable of experts considered pressing questions related to intermediary liability and the rights, roles, and responsibilities of information platforms in society. Based on conversations from the workshop, WIII published a free, publicly available report detailing the most critical issues necessary for understanding the role of information platforms, such as Facebook and Google, in law and society today. The report highlights insights and questions …

Making Innovation More Competitive: The Case Of Fintech, Rory Van Loo

Faculty Scholarship

Finance startups are offering automated advice, touchless payments, and other products that could bring great societal benefits, including lower prices and expanded access to credit. Yet unlike in other digital arenas in which American companies were global leaders, such as search engines and ride hailing, the U.S. has lagged in consumer finance. This Article posits that the current competition framework is holding back consumer financial innovation. It then identifies a contributor that has yet to be articulated: the organizational design of administrative agencies. Competition authority—including antitrust and the extension of business licenses—is spread across at least five regulators. Each is …

Taming Title Ix Tensions, Naomi M. Mann

Faculty Scholarship

The appropriate parameters for sexual assault disciplinary proceedings in public colleges and universities have historically been hotly contested. In recent years, the debate has focused on two competing sets of rights—the more established Title IX rights of the victim and the evolving constitutionally-based procedural due process rights of the accused. This debate over whose rights should be prioritized—those of the victim or those of the accused—is a classic civil rights enforcement dynamic. How can educational institutions effectuate the equality mandate of Title IX while not infringing on the constitutionally-based procedural due process rights of the accused? The Executive Branch, through …

Editorial For Special Issue Of Queen Mary Journal Of Intellectual Property, Peter K. Yu

Faculty Scholarship

Editorial Extract:

On 24 October 2017, the 19th Chinese Communist Party Congress concluded in Beijing. Held every five years, this historical and highly anticipated event has not only ushered in leadership and policy changes, but has also sent a strong message to the outside world that China is eager to assume greater world leadership. Today, no country can attain leadership without strengthening its economic development and technological capacity. Although China was backward when it was re-opened to the outside world in the late 1970s, the past three decades have seen the country making breathtaking progress.

When The Chinese Intellectual Property System Hits 35, Peter K. Yu

Faculty Scholarship

This article explores what it means for the Chinese intellectual property system to hit 35. It begins by briefly recapturing the system’s three phases of development. It discusses the system’s evolution from its birth all the way to the present. The article then explores three different meanings of a middle-aged Chinese intellectual property system – one for intellectual property reform, one for China, and one for the TRIPS Agreement and the global intellectual property community.

A Vatcoin Solution To Mtic Fraud: Past Efforts, Present Technology, And The Eu’S 2017 Proposal, Richard Thompson Ainsworth, Musaad Alwohaibi, Mike Cheetham, Camille Tirand

Faculty Scholarship

On October 4, 2017, in an effort to recover some of the VAT lost annually, the European Commission proposed “far-reaching reforms.” The immediate target is a €50 billion slice of an estimated €150 billion overall annual loss. In its proposal the Commission is looking only at Missing Trader Intra-Community (MTIC) fraud in goods.

Goods (alone) are targeted.

If we have learned anything about MTIC fraud since January 1, 1993, it is that fraudsters engaged in this activity are exceptionally agile. MTIC frauds migrate and mutate on command. For example, MTIC fraud in cell phones quickly migrated to computer chips in …

Taxprof Article Of The Week: Serge Martinez (New Mexico), Why Are We Doing This? Cognitive Science And Nondirective Supervision In Clinical Teaching, Serge A. Martinez

Faculty Scholarship

Weekly Legal Education Roundup's article of the week is Serge Martinez's, "Why are We Doing this? Cognitive Science and Nondirective Supervision in Clinical Teaching."

Read full article here: http://digitalrepository.unm.edu/law_facultyscholarship/483/

Brief For The Kansas Independent Oil & Gas Association As Amicus Curiae, Joseph A. Schremmer

Faculty Scholarship

Is the letter of the rule against perpetuities (the Rule) more important than its public policy? The Appellants in this case recklessly petition the Court to apply the Rule to a commonly used form of mineral reservation for the first time in the reservation’s nearly 100 years of use. They contend the Rule should apply even though it would cloud or nullify the property interests of countless unrepresented parties, spur a spate of litigation, remove a useful form of mineral ownership from commerce, and disrupt oil and gas development across Kansas—all in contravention of the Rule’s policy of making land …

Albuquerque Journal Interviews Reed Benson, Supreme Court Hears Nm-Texas Water Dispute, Reed D. Benson

Faculty Scholarship

Article by Michael Coleman

Quote:

Reed Benson, a University of New Mexico professor specializing in water law, said the Supreme Court’s task in deciding the U.S. government’s role is “very legalistic – very much a technical reading of what is and is not in the compact.”

“I actually have thought that New Mexico’s chances in front of the nine justices may be a little bit better than some people thought,” Benson said. “Some of those justices may be persuaded by the plain text argument – that New Mexico’s obligations are measured at Elephant Butte and once New Mexico delivers to …

Chocolate, Fashion, Toys And Cabs: The Misunderstood Distinctiveness Of Non-Traditional Trademarks, Irene Calboli

Faculty Scholarship

Editorial Excerpt:

What do Cadbury, Toblerone and Kit-Kat chocolates, the Rubik’s Cube and Lego mini-figurine toys, Louboutin shoes, Bottega Veneta bags and London Taxi Company cabs all have in common? These products have been, along with several others, protagonists of the rising trend of registering shapes and other non-traditional trademarks in a variety of countries, and then, in several cases, protagonist of ensuing litigation addressing the validity of these marks. To a large extent, the review panels and the courts involved in these cases have declared several of these marks invalid or have reduced their scope considerably. Hence, these cases …