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Articles 31 - 56 of 56
Full-Text Articles in Law
Liability For Unconscious Discrimination? A Thought Experiment In The Theory Of Employment Discrimination Law, Patrick S. Shin
Liability For Unconscious Discrimination? A Thought Experiment In The Theory Of Employment Discrimination Law, Patrick S. Shin
Suffolk University Law School Faculty Works
A steadily mounting body of social science research suggests that ascertaining a person’s conscious motives for an action may not always provide a complete explanation of why he did it. The phenomenon of unconscious bias presents a worrisome impediment to the achievement of fair equality in the workplace. There have been numerous deeply insightful articles discussing various aspects of this problem and canvassing its implications for antidiscrimination law. My purpose in this paper is to focus directly on what might be called a more naïve question: should implicit bias be a basis of disparate treatment liability under Title VII? The …
The Substantive Principle Of Equal Treatment, Patrick S. Shin
The Substantive Principle Of Equal Treatment, Patrick S. Shin
Suffolk University Law School Faculty Works
This paper attempts to identify a principle of equal treatment that gives specific structure to our widely shared judgments about the circumstances in which we have moral reason to object to the differential adverse treatment of others. I formulate what I call a “substantive” principle of equal treatment (to be distinguished from principles of formal equality) that describes a moral constraint on the reasons we can have for picking out individuals for differentially adverse action. I argue that this constraint is violated when an action, in view of its rationale, expresses lesser respect for the moral status of an individual …
What's On Your Playlist? The Power Of Podcasts As A Pedagogical Tool, Kathleen Elliott Vinson
What's On Your Playlist? The Power Of Podcasts As A Pedagogical Tool, Kathleen Elliott Vinson
Suffolk University Law School Faculty Works
It is six in the morning and a law student is walking her dog before beginning a full day of classes. Across town a few hours later, a classmate rushes onto a crowded subway train, forced to stand sandwiched between strangers during his commute to school. That afternoon, an evening student sits in rush hour traffic, hoping to make it into the city in time for class. Later that night, a student jogs on a treadmill at the gym after a long day of school. What do all of these students have in common? They are learning by listening to …
Scary Patents, Stephen M. Mcjohn
Scary Patents, Stephen M. Mcjohn
Suffolk University Law School Faculty Works
The Federal Circuit, in In re Bilski, announced a new test for patentable subject matter, reversing a decades-long trend that had broadened patent subject matter to include business methods and software. To be patentable under Bilski, a process must (1) be tied to a particular machine or apparatus, or (2) transform a particular article into a different state or thing. The Supreme Court has granted cert. to review Bilski. Bilski gives little weight to the very statute it is interpreting or to the facts of the relevant Supreme Court cases. The court draws a test from selected language of those …
Teaching In Practice: Legal Writing Faculty As Expert Writing Consultants To Law Firms, Kathleen Elliott Vinson, E. Joan Blum
Teaching In Practice: Legal Writing Faculty As Expert Writing Consultants To Law Firms, Kathleen Elliott Vinson, E. Joan Blum
Suffolk University Law School Faculty Works
As experts in the pedagogy and substance of legal writing, full-time legal writing faculty who serve as writing consultants to law firms help fill an increasing need for training and support of lawyers. In addition to providing a direct benefit to lawyers and their firms, this practice benefits the legal academy by providing fresh ideas for teaching and scholarship. This article discusses generally the practice of legal writing consulting in law firms by full-time legal writing faculty. The article provides background in theory and practice, addressing why law firms seek outside consultants for this type of training and support and …
Watch, Listen, And Learn, Kathleen Elliott Vinson
Watch, Listen, And Learn, Kathleen Elliott Vinson
Suffolk University Law School Faculty Works
Technology impacts education - the way faculty teach and students learn. For example, faculty members utilize technology in the classroom to engage students and assess their understanding. Some examples of technological tools professors use in class include audience response system (clickers). Outside of the classroom, technology supplements classroom instruction without time and space constraints. For instance, professors record podcasts to review material and critique student memoranda. This article discusses some of the technology tools utilized by faculty and students.
Patents: Hiding From History, Stephen M. Mcjohn
Patents: Hiding From History, Stephen M. Mcjohn
Suffolk University Law School Faculty Works
This essay considers how patent law doctrine clouds the historical record of technological development. The essay first surveys a recent book that relied heavily on patent records to reexamine acutely the role of intellectual property in economic development, "The Democratization of Invention," by B. Zorina Khan. The essay's second part discusses how patent law today likely distorts patents as primary historical sources. The law encourages an inventor not to accurately disclose her invention and its place in technological development, but rather to submit vague and overbroad invention descriptions and claims. In describing the invention, some case results perversely favor what …
Road To Legal Writing Paved With Attention To Reader, Kathleen Elliott Vinson
Road To Legal Writing Paved With Attention To Reader, Kathleen Elliott Vinson
Suffolk University Law School Faculty Works
Writers need to write for their reader, not themselves. Writers should think of their reader when drafting any document. Writers should be kind to their readers by being clear, concise, thorough and precise. This Article discusses ways writers can guide their reader throughout a document and make their points explicit and obvious.
Why I Teach, Kathleen Elliott Vinson
Why I Teach, Kathleen Elliott Vinson
Suffolk University Law School Faculty Works
When discussing learning in the context of academia, most people would think of students learning from the teacher but great teaching moments occur when a teacher reflects on what she has learned from the other side of the podium, from student to teacher. Teaching is not a one way linear approach, but rather is recursive and reflective for both student and teacher. In the end, the knowledge that a teacher has shared with her students may be as great as the knowledge that she has gained from them.
Vive La Difference? A Critical Analysis Of The Justification Of Sex-Dependent Workplace Restrictions On Dress And Grooming, Patrick S. Shin
Vive La Difference? A Critical Analysis Of The Justification Of Sex-Dependent Workplace Restrictions On Dress And Grooming, Patrick S. Shin
Suffolk University Law School Faculty Works
How is it possible that sex-specific workplace dress and appearance codes do not constitute sex discrimination? I argue in this article that the general doctrines of employment discrimination law do not themselves provide a principled basis for distinguishing sex-dependent workplace dress codes from other kinds of policies that would clearly count as sex discrimination, and that supplementary strategies that courts have used to carve out dress and grooming codes as an area of separate concern are either inconclusive or question-begging. I then consider whether the courts' seemingly sui generis approach to sex-dependent restrictions on dress and grooming can be justified …
A New Tool For Analyzing Intellectual Property, Stephen M. Mcjohn
A New Tool For Analyzing Intellectual Property, Stephen M. Mcjohn
Suffolk University Law School Faculty Works
This piece reviews Economic and Legal Dimensions, which presents a pragmatic economic theory about the proper remedies in intellectual property cases. The book shows in a number of areas how remedies play a crucial role in defining intellectual property rights, and how to improve the law. The first part of the review presents the authors' general theory. The second part tests how the theory succeeds in explaining the existing law on remedies in intellectual property. The third part analyzes how the theory could be used to bring considerable clarity to murky areas such as standing to sue, liability standards, measurement …
Compelling Interest, Forbidden Aim: The Antinomy Of Grutter And Gratz, Patrick S. Shin
Compelling Interest, Forbidden Aim: The Antinomy Of Grutter And Gratz, Patrick S. Shin
Suffolk University Law School Faculty Works
This article explores the tension between the Grutter Court's capacious account of the value of racial diversity, on the one hand, and the Gratz Court's insistence on the constraining mechanism of individualized consideration, on the other. The article examines whether the promotion of diversity as a compelling interest can be reconciled with the requirement of individualized consideration under any coherent principle of equal treatment. The article concludes that the only way this can be done is to interpret the cases as rejecting the proposition that 'racial' diversity represents a compelling governmental interest and as implicitly adopting, instead, the idea that …
Improving Legal Writing: A Life-Long Learning Process And Continuing Professional Challenge, Kathleen Elliott Vinson
Improving Legal Writing: A Life-Long Learning Process And Continuing Professional Challenge, Kathleen Elliott Vinson
Suffolk University Law School Faculty Works
This article shows why lawyers must improve their writing skills beyond law school, throughout their careers, and why the legal profession must join the legal academy in working to improve them. It offers recommendations that the legal profession can implement to combine efforts with academia to meet the challenge of improving legal writing. Academia and the legal profession agree that lawyers write poorly; however, how, when, and who should improve writing skills needs examination. For pragmatic and pedagogical reasons, a united effort between academia and the legal profession is required to meet the challenge of improving legal writing. Writing is …
Indigenous Peoples And Intellectual Property, Stephen M. Mcjohn, Lorie Graham
Indigenous Peoples And Intellectual Property, Stephen M. Mcjohn, Lorie Graham
Suffolk University Law School Faculty Works
This paper, following on Michael F. Brown's Who Owns Native Culture?, suggests that intellectual property law, negotiation, and human rights precepts can work together to address indigenous claims to heritage protection. Granting intellectual property rights in such spheres as traditional knowledge and folklore does not threaten the public domain in the same way that expansion of intellectual property rights in more commercial spheres does. It is not so much a question of the public domain versus corporate and indigenous interests, as it is a question of the impact corporate interests have had on the indigenous claims. Indeed indigenous peoples' claims …
Eldred's Aftermath: Tradition, The Copyright Clause, And The Constitutionalization Of Fair Use, Stephen M. Mcjohn
Eldred's Aftermath: Tradition, The Copyright Clause, And The Constitutionalization Of Fair Use, Stephen M. Mcjohn
Suffolk University Law School Faculty Works
This article analyzes the ramifications of Eldred v. Ashcroft, for both constitutional law and intellectual property law. The Supreme Court upheld the twenty year extension of existing and future copyrights. A broad coalition had challenged the constitutionality of the term extension, on both Copyright Clause and First Amendment grounds. I. With respect to First Amendment law generally, the article analyzes whether Eldred can be read as using "traditionalism" to define the scope of protected rights under the First Amendment. Such a reading could represent a considerable change in First Amendment law. II. Eldred leaves open the possibility of First Amendment …
What Is The Point? Teaching Ideas For Thesis Sentences, Kathleen Elliott Vinson
What Is The Point? Teaching Ideas For Thesis Sentences, Kathleen Elliott Vinson
Suffolk University Law School Faculty Works
Readers are pragmatic and want to know the bottom line. The use of strong topic or thesis sentences will grab the reader’s attention and help the reader understand the significance of the information in each paragraph. The writer does not want to waste an opportunity or just tread water in a thesis sentence by merely stating a fact. This article discusses teaching ideas and exercises for drafting effective thesis sentences.
The Paradoxes Of Free Software, Stephen M. Mcjohn
The Paradoxes Of Free Software, Stephen M. Mcjohn
Suffolk University Law School Faculty Works
This paper describes the legal structure of open source software and analyzes the likely issues to arise. A combination of copyright law and trademark law serves to permit the free distribution of open source software. The software is kept under copyright, but freely licensed under one of various open source licenses. The legal structure of open source is an elegant and robust use of intellectual property law that turns the customary use of intellectual property on its head, by using intellectual property laws, which normally are used to guard exclusive rights, to safeguard free access to and use of software. …
Interactive Class Editing, Kathleen Elliott Vinson
Interactive Class Editing, Kathleen Elliott Vinson
Suffolk University Law School Faculty Works
Legal writing is a process. Writing, however, is not a process that occurs in a straight line. An important part of the writing process is editing. Editing during different stages of the writing process can reveal organizational as well as analytical problems, in addition to grammatical and spelling mistakes. As Justice Brandeis said, "[t]here is no such thing as good writing. There is only good rewriting.” The time and extent spent on editing skills conveys the importance of editing. Devoting class time to editing and making it interactive allows students to focus on editing and practice their editing skills. In …
Fair Use And Privatization In Copyright, Stephen M. Mcjohn
Fair Use And Privatization In Copyright, Stephen M. Mcjohn
Suffolk University Law School Faculty Works
This Article argues for a broad conception of copyright's fair use doctrine. Economic reliance on property rules has led some to argue that fair use should be limited to cases where market failures do not permit licensing transactions. Otherwise, allocation of rights should be left to the market. This article takes the position that differences between real property and intellectual property undercut the application of the tragedy of the commons to the fair use setting. While real property is a limited resource, intellectual property is not. The same parcel of land may not support an unlimited number of grazing sheep. …
Review Of 'Artificial Legal Intelligence', Stephen M. Mcjohn
Review Of 'Artificial Legal Intelligence', Stephen M. Mcjohn
Suffolk University Law School Faculty Works
Artificial Legal Intelligence, by Pamela Gray, presents a thought-provoking approach to both computational models of legal reasoning and the use of evolutionary thinking about the law. Drawing on a prodigious amount of research, the book looks beyond the rather technical approach common in the field and attempts to place artificial legal intelligence within the broad structure of legal history. This paper first summarizes the book's vision of a computerized artificial legal intelligence, a vision of developments in both technology and legal history. The paper discusses how this fits with trends in both artificial intelligence and legal theory. The paper further …
New Lr&W Teachers Alert! 14 Ways To Avoid Pitfalls In Your First Year Of Teaching, Kathleen Elliott Vinson
New Lr&W Teachers Alert! 14 Ways To Avoid Pitfalls In Your First Year Of Teaching, Kathleen Elliott Vinson
Suffolk University Law School Faculty Works
Teaching is a challenge. This article discusses common pitfalls to avoid in your first year of teaching and how to navigate around them.
Fair Use Of Copyrighted Software, Stephen M. Mcjohn
Fair Use Of Copyrighted Software, Stephen M. Mcjohn
Suffolk University Law School Faculty Works
This article discusses how the functional aspects of software should be accounted for in applying copyright's fair use doctrine. Copyright provides an incentive for authors to produce creative works, by giving them an exclusive right to make and distribute copies of their work. The fair use doctrine permits others to make copies where strict enforcement of the exclusive right would be counter-productive. Fair use often permits use of copyrighted material where the author suffers no loss, or where the author might deny permission for reasons counter to copyright's goals of fostering creativity and innovation. Parts II and III apply this …
The Impact Of United States V. Lopez: The New Hybrid Commerce Clause, Stephen M. Mcjohn
The Impact Of United States V. Lopez: The New Hybrid Commerce Clause, Stephen M. Mcjohn
Suffolk University Law School Faculty Works
The Commerce Clause has long been a constitutional powerhouse underlying federal legislation. The decision in United States v. Lopez marked the first time in almost sixty years that the Supreme Court has held that Congress had exceeded its power to regulate interstate commerce. In Lopez, the Court held that Congress overreached its power in enacting the Gun-Free School Zones Act of 1990, which prohibited possession of firearms within one thousand feet of a school. Lopez thus breaks a long line of cases deferring to congressional action. Historically, the Court has sustained federal regulation of civil rights, loan-sharking, restoration of environmental …
Person Or Property? On The Legal Nature Of The Bankruptcy Estate, Stephen M. Mcjohn
Person Or Property? On The Legal Nature Of The Bankruptcy Estate, Stephen M. Mcjohn
Suffolk University Law School Faculty Works
This article addresses the legal nature of the bankruptcy estate: whether the bankruptcy estate is a collection of property interests, like the traditional conception of a decedent's estate, or whether the estate is the legal person in which such property interests vest, analogous to a corporation, a partnership, or an individual. The legal nature of the bankruptcy estate becomes most important when a corporation which files a chapter 11 petition becomes a debtor in possession. Suppose Acme Corporation files a chapter 11 bankruptcy petition and becomes a debtor in possession; Acme's property becomes the bankruptcy estate. What is Acme Corporation's …
Assignability Of Letter Of Credit Proceeds: Adapting The Code To New Commercial Practices, Stephen M. Mcjohn
Assignability Of Letter Of Credit Proceeds: Adapting The Code To New Commercial Practices, Stephen M. Mcjohn
Suffolk University Law School Faculty Works
The right to receive payment under a letter of credit may be assigned, even if the letter of credit prohibits assignment of proceeds. This article argues that this rule should be changed, to give effect to clauses barring assignment of proceeds. The rule made sense where letters of credit were primarily used in sales of goods transactions. In that context, the rule simply mirrored the contract law doctrine that the right to receive payment under a sales contract may be freely assigned (subject to any defenses the payor might have). But letters of credit are not used in a broader …
The Flip Side Of Twist Cap: Letters Of Credit As Executory Contracts In Bankruptcy, Stephen M. Mcjohn
The Flip Side Of Twist Cap: Letters Of Credit As Executory Contracts In Bankruptcy, Stephen M. Mcjohn
Suffolk University Law School Faculty Works
This article analyzes the treatment of letters of credit as executory contracts in bankruptcy. Some courts had stated that the bankruptcy of the beneficiary terminates a letter of credit. This article concludes that decisions were incorrect in treating a letter of credit as an executory contract to provide financial accommodations to the beneficiary. A letter of credit is not a means to provide credit to the beneficiary: it is a means to provide credit to the applicant (and thereby allowing the applicant and beneficiary to avoid extending credit to each other). The issuer is not dependent on the credit risk …