Law Commons^™

Building A Better Bounty: Litigation-Stage Rewards For Defeating Patents, Joe Miller

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A patent challenger who defeats a patent wins a prize that it must share with the whole world, including all its competitors. This forced sharing undermines an alleged infringer's reason for fighting the patent case to the finish - especially if the patent owner offers an attractive settlement. Too many settlements, and too few definitive patent challenges, are the result. A litigation-stage bounty would correct this defect in patent litigation's basic framework, for it would provide cash prizes to successful patent challengers that they alone would enjoy. After briefly describing the free rider problem with inventions that patent law attempts …

Let The Money Do The Governing: The Case For Reuniting Ownership And Control, Usha Rodrigues

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Part I of the Article outlines the problems with the current method of board selection and functioning. Management or management-sympathetic board members often select the board nominees, who share social ties with other board members. Boards tend to avoid "rocking the boat" by questioning management's recommendations, and because of the way the proxy process is structured, shareholders cannot effectively use their votes to oust unsatisfactory board members.

Part II analyzes the SEC's recent proposals for reform, which center on granting shareholders more opportunities to nominate candidates to the board. These proposals attempt to give shareholders a greater voice in the …

Reflections On Brown Vs. Board Of Education: Four Law Librarians Share Their Experiences Growing Up During The Brown Era, April Schwartz, Marvin R. Anderson, Yvonne Chandler, Ruth J. Hill

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No abstract provided.

Preserving The Legacy: A Tribute To Chief Justice Harry L. Carrico, One Who Exalted Judcial Independence - Part One: Words Honoring Chief Justice Carrico, Penny White

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No abstract provided.

Preserving The Legacy: A Tribute To Chief Justice Harry L. Carrico, One Who Exalted Judcial Independence - Part Two: The Good, The Bad, And The [Very, Very] Ugly And (Its Postscript), A Fistful Of Dollars, Penny White

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No abstract provided.

Adrift On A Sea Of Uncertainty: Preserving Uniformity In Patent Law Post-Vornado Through Deference To The Federal Circuit, Larry D. Thompson

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Congress created the United States Court of Appeals for the Federal Circuit in 1982, and granted that court exclusive appellate jurisdiction over civil actions arising under patent law. Congress's primary goals in creating the Federal Circuit were to produce a more uniform patent jurisprudence and to reduce forum shopping based on favorable patent law. But in the 2002 decision of Holmes Group, Inc. v. Vornado Air Circulation Systems, the Supreme Court held that patent counterclaims alone could not create Federal Circuit jurisdiction. This decision not only overruled the Federal Circuit's longstanding jurisdictional rule, but also opened the door for Regional …

The European Commission’S Report On Company Income Taxation: What The Eu Can Learn From The Experience Of The Us States, Walter Hellerstein

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The European Union Commission has proposed using consolidated base taxation and formulary apportionment to tax the EU-source income of multinational companies. This paper examines US state experience with a similar approach. Despite some positive lessons, especially the need to consolidate income of affiliated companies, lessons are mostly negative, especially regarding the choice of apportionment formula, the use of economic criteria to define the group whose income is to be consolidated, and complexity caused by lack of uniformity. US experience says nothing about using value added to apportion income—an approach that is conceptually attractive, but subject to transfer pricing problems.

The Erie Doctrine And Bankruptcy, Thomas E. Plank

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No abstract provided.

Can Treasury Overrule The Supreme Court?, Gregg D. Polsky

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This article considers whether the Treasury's check-the-box regulations, which have been widely praised by tax practitioners, are valid. These regulations generally allow any unincorporated entity to elect whether it will be treated as a corporation or a partnership for tax purposes. When these regulations were first proposed, there was some debate as to whether such an elective regime was foreclosed by the statutory scheme, which requires that "associations" be taxed as corporations. This article argues that the focus of this debate was misplaced because, even assuming that the statutory scheme itself was sufficiently ambiguous as to permit an elective regime, …

Georgia General Assembly Adopts "Manifest Disregard" As A Ground For Vacating Arbitration Awards: How Will Georgia Courts Treat The New Standard?, John W. Hinchey, Thomas V. Burch

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Generally, courts may only set aside arbitration awards on the grounds listed in the Federal Arbitration Act or the applicable state arbitration code. However, all federal circuit courts and a few state courts have adopted a non-statutory exception that allows a court to overturn an arbitrator's decision if the arbitrator has exemplified a "manifest disregard" of the law.

In 2002, after several years of tentative lower court decisions, the Georgia Supreme Court, in Progressive Data Systems v. Jefferson Holding Corporation, held that manifest disregard is not a proper ground for vacatur in Georgia. The court emphasized that Georgia's Arbitration Code …

Survey Of Developments In Indiana Family, Paula Schaefer

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No abstract provided.

Protecting The Unpopular From The Unreasonable: Warrantless Monitoring Of Attorney Client Communications In Federal Prisons, Teri Dobbins Baxter

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No abstract provided.

Some Appeasement For Professor Tushnet, Penny White

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No abstract provided.

Marbury's Mixed Messages, Glenn Harlan Reynolds

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No abstract provided.

A Matter Of Perspective, Penny White

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No abstract provided.

Hijacking Chapter 11, George Kuney

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No abstract provided.

Irlafarc! A Survey On The Language Of Legal Writing, Terrill Pollman

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Language, like law, is a living thing. It grows and changes. It both reflects and shapes the communities that use it. The language of the community of legal writing professors demonstrates this process. Legal writing professors, who stand at the heart of an emerging discipline in the legal academy, are creating new terms, or neologisms, as they struggle to articulate principles of legal analysis, organizational paradigms conventional to legal writing, and other legal writing concepts. This new vocabulary can be both beneficial and detrimental. It can be beneficial because it expands the substance of an emerging discipline. It also can …

Double Jeopardy And Nonmember Indians In Indian Country, Terrill Pollman

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The ambivalence of the federal government to the sovereignty of native tribes is ordinarily a quiet fact of life in this country. Now, the federal circuits have disturbed that quiet by rendering opposing rulings on the question whether the Double Jeopardy Clause bars successive tribal/federal prosecution of nonmember Indians in Indian Country. The Ninth Circuit has held the Double Jeopardy Clause does not present a bar to successive tribal/federal prosecutions. In contrast, the Eighth Circuit has held that the Double Jeopardy Clause prohibits subsequent prosecution because the source of the tribe's jurisdiction, if it has jurisdictional power, is the same …

Courts Over Constitutions Revisited: Unwritten Constitutionalism In The States, Thomas B. Mcaffee, Nathan N. Frost, Rachel Beth Klein-Levine

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A good deal of modern debate in constitutional law has concerned the appropriate methods for construing constitutional rights. But the focus on “individual rights” has sometimes prompted us to pay too little attention to the “right” deemed most fundamental by those who brought us the state and federal constitutions: the right of the people collectively to make determinations about how they should be governed. The author demonstrates that the key to understanding the development of the power of judicial review, both by the United States Supreme Court and by the highest courts of the states, is to perceive courts as …

Disparate Impact Theory In Employment Discrimination: What’S Griggs Still Good For? What Not?, Elaine W. Shoben

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Is disparate impact a dead theory of employment discrimination? Definitely not. The theory itself has a more stable legal status than it did when the Supreme Court embraced it in its 1971 opinion Griggs v. Duke Power Co. But is it thriving in litigation? It appears to be neither thriving nor dead. It has become a relatively less vital tool, compared with theories of intentional discrimination. Despite the heroic effort of Congress to keep the theory from destruction by the Supreme Court through its express codification in 1991, disparate impact litigation is not making a major impact in this …

What Is The Sound Of A Corporation Speaking? How The Cognitive Theory Of Metaphor Can Help Lawyers Shape The Law, Linda L. Berger

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This article argues that better understanding of metaphor's cognitive role can help lawyers shape judicial decision-making. As a way of exploring metaphor's contribution to shaping the law, the article focuses on how a particular lawsuit was influenced by metaphor, in particular, by the primary metaphor that a corporation is a person within the more complex metaphorical system suggested by the marketplace of ideas model for First Amendment protection. After describing the cognitive theory of metaphor and examining the metaphors underlying First Amendment protection for corporate speech, the article analyzes the use of metaphor in the briefs filed in the U.S. …

The Integration Of Law And Fact In An Uncharted Parallel Procedural Universe, Thomas O. Main

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No abstract provided.

The Tri-Ethnic Dilemma: Race, Equality, And The Fourteenth Amendment In The American West, Tom I. Romero Ii

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No abstract provided.

Feeding Tubes, Slippery Slopes, And Physician-Assisted Suicide, David Orentlicher, Christopher M. Callahan Md

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No abstract provided.

One For All, But None For (All Of) One: Revised Article 1 Of The Uniform Commercial Code (Part 1 Of 2), Keith A. Rowley

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This article examines four major differences between Revised Article 1 of the Uniform Commercial Code and Nevada's current (as of 2004) version of Article 1, codified at N.R.S. §§ 104.1101 et seq.

One For All, But None For (All Of) One: Revised Article 1 Of The Uniform Commercial Code (Part 2 Of 2), Keith A. Rowley

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Part One of this article examined four major differences between Revised Article 1 of the Uniform Commercial Code and Nevada's current version of Article 1, codified at N.R.S. §§ 104.1101 et seq. Part Two explores how Revised Article I has fared thus far in other states and suggests what the Nevada Legislature should consider when deciding in the upcoming legislative session whether to enact Revised Article I as written, whether to enact it with revisions, or whether not to enact it at all.

Recent Developments In Bankruptcy Law, Nancy B. Rapoport

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Discussion of 2004 cases regarding bankruptcy law.

Enron, Titanic, And The Perfect Storm, Nancy B. Rapoport

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In this article, I explore the contention of Jeffrey Skilling, former Enron CEO, that Enron's debacle was due to a perfect storm of events. I reject his contention, arguing instead that Enron's downfall was more like Titanic's - hubris and an over-reliance on checks and balances led to Enron's downfall. I then explore how character (especially of those at the top of an organization) can lead to Enron-like disasters, and I talk about how cognitive dissonance can lead to very smart people making very stupid decisions. I end with some musings about how lawyers can learn from Enron.

Dr. Jekyll & Mr. Skilling; How Enron's Public Image Morphed From The Most Innovative Company In The Fortune 500 To The Most Notorious Company Ever, Nancy B. Rapoport, Jeffrey D. Van Niel

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In this article, we explore the hypothesis that Enron's financial releases were so complex and misleading that no one could have predicted its rapid downfall, and we find that, contrary to our hypothesis, a number of people were contradicting Enron's own rosy view of itself long before the middle of 2001. We then talk about the ways in which Enron became part of the public consciousness, far beyond what it had done merely as a business entity.

Functionality Or Formalism? Partners And Shareholders As "Employees" Under The Anti-Discrimination Laws, Ann C. Mcginley

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In Clackamas Gastroenterology Associates P.C. v. Wells, the United States Supreme Court established the standards for determining whether a shareholder in a professional corporation ("PC") is an "employee" as defined by Title I of the Americans with Disabilities Act of 1990 ("ADA"). Characteristics the court saw as distinguishing partnerships are the profit sharing, contributions to capital, part ownership of partnership assets, and the right to share in management subject to agreement. Even if the partner's power is insufficient to avoid discrimination, courts should also consider whether the partner is more like an independent contractor in that he or she is …