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Full-Text Articles in Law

Winning The Game Of Appellate Musical Shoes: When The Appeals Band Plays, Jump From The Client’S To The Judge’S Shoes To Write The Statement Of Facts Ballad, Laurie A. Lewis Jan 2011

Winning The Game Of Appellate Musical Shoes: When The Appeals Band Plays, Jump From The Client’S To The Judge’S Shoes To Write The Statement Of Facts Ballad, Laurie A. Lewis

Scholarly Articles and Other Contributions

An appellate brief's Statement of Facts is critical to a successful appeal. The client trusts the attorney with his or her story. To fully hear it, the attorney must actively listen and demonstrate empathy in the initial interview. The attorney needs to step into the client's shoes to retell the story at trial. On appeal, however, the attorney needs to step into the appellate judge's shoes. The story must be recast for an audience knowing nothing about the client. It must be interesting, and appeal to the judge's spirit of justice. If the client suffered an ...


Clarifying The Doctrine Of Inequitable Conduct, Elizabeth I. Winston Jan 2011

Clarifying The Doctrine Of Inequitable Conduct, Elizabeth I. Winston

Scholarly Articles and Other Contributions

Addressing squarely the issue of the multiple standards of materiality in inequitable conduct litigation, Therasense v. Becton Dickinson raises many difficult issues that could be clarified through the lens of the analogous concept of fraud on the Trademark Office. The standards for finding fraud on the Trademark Office lack the ambiguity found in the doctrine of inequitable conduct, despite the parallel penalties of unenforceability and requirements of proof of materiality and intent. Informed by the many decisions of Judge Michel, this essay concludes that the standards for finding fraud before the Trademark Office, as set forth in In re Bose ...


An Originalist Congress?, Joel Alicea Jan 2011

An Originalist Congress?, Joel Alicea

Scholarly Articles and Other Contributions

Among the campaign promises Republicans made to voters this fall was a pledge that every piece of proposed legislation would cite the constitutional provision that authorizes it. Given lawmakers' reliance on the courts to determine the constitutionality of our laws, the new majority's promise could open some fascinating — and useful — debates. Chief among them: Just how should Congress interpret the Constitution?


Standing To Sue In The Myriad Genetics Case, Megan M. La Belle Jan 2011

Standing To Sue In The Myriad Genetics Case, Megan M. La Belle

Scholarly Articles and Other Contributions

In recent years, the topic of gene patents has generated significant debate among medical researchers, biotechnology companies, academics, policymakers, and patent lawyers. The controversy implicates a wide range of legal and policy questions, including whether human genes should be patentable, and whether such patents stimulate or stifle innovation. In Association for Molecular Pathology v. Myriad Genetics, a high-profile case recently before the United States Court of Appeals for the Federal Circuit, a divided panel of the court addressed these questions. Before reaching the merits of the case, however, the court had to decide whether the plaintiffs had standing to sue ...


Commentary, Mary Graw Leary Jan 2011

Commentary, Mary Graw Leary

Scholarly Articles and Other Contributions

No abstract provided.


Threatening The Founding Ideal Of A Republic Of Letters: An Assessment Of The Supreme Court's Copyright Decisions Over The First Decade Of The Twenty-First Century, Susanna Frederick Fischer Jan 2011

Threatening The Founding Ideal Of A Republic Of Letters: An Assessment Of The Supreme Court's Copyright Decisions Over The First Decade Of The Twenty-First Century, Susanna Frederick Fischer

Scholarly Articles and Other Contributions

Disregard for the social value of a modern Republic of Letters like that so revered by Madison and Jefferson is a conspicuous hallmark of the Supreme Court's recent copyright case law. The four decisions in which the Court has issued full opinions since 2001 (New York Times Co. v. Tasini (2001), Eldred v. Ashcroft (2003), MGM Studios, Inc. v. Grokster, Ltd. (2005), and Reed Elsevier, Inc. v. Muchnick (2010) indicate that a majority of the Court does not share with Jefferson and Madison a belief in the civic importance of protecting widespread public access to creative works and knowledge ...


Intellect And Virtue: The Idea Of A Catholic University, John H. Garvey Jan 2011

Intellect And Virtue: The Idea Of A Catholic University, John H. Garvey

Scholarly Articles and Other Contributions

No abstract provided.


Bounty Hunters And Whistleblowers: Constitutional Concerns For False Claims Actions After Passage Of The Patient Protection And Affordable Care Act Of 2010, A.G. Harmon Jan 2011

Bounty Hunters And Whistleblowers: Constitutional Concerns For False Claims Actions After Passage Of The Patient Protection And Affordable Care Act Of 2010, A.G. Harmon

Scholarly Articles and Other Contributions

Recently, the False Claims Act (FCA) was amended by the Patient Protection and Affordable Care Act of 2010 (PPACA). In a five-word alteration, the PPACA has greatly expanded the reach of the statute, in terms of how a case must be proven, who has to prove it, and what circumstances, if any, will bar the proceeding from going forward." Additionally, new constitutional and policy concerns stem from the increased governmental discretion in deciding which suits can and cannot proceed.6 The problems resulting from the government's expanded discretion go to the very nature of qui tam actions themselves.

This ...


Charity In The 21st Century: Trending Toward Decay, Roger Colinvaux Jan 2011

Charity In The 21st Century: Trending Toward Decay, Roger Colinvaux

Scholarly Articles and Other Contributions

The Article argues that the federal tax law framework relating to charitable organizations is decaying. Through an overview of the historical development of the law relating to charity in the 20th century, the Article shows that the statutory law has passively accommodated significant growth of the charitable sector without demanding any rigor of the sector in the form of positive requirements or quantitative measures. This has led to growth without meaningful oversight – a recipe for problems. The Article then provides an overview of many of the scandals that engulfed the sector during the early 21st century and shows that the ...


A Patent Misperception, Elizabeth I. Winston Jan 2011

A Patent Misperception, Elizabeth I. Winston

Scholarly Articles and Other Contributions

Antitrust and intellectual property laws promote innovation and competition. As long as the costs of promotion do not exceed the benefit to society, then the laws act in harmony. Discord arises when patent holders use public and private ordering to restrain competition, restrict downstream trade, prevent the development of competing products and limit output by competitors. Using the Patent Act and the misperception of antitrust immunity to create a parallel and under-regulated legal system allows a small number of patent holders to coordinate their behavior to maximize profits and minimize competition. The Patent Act provides no shield to prosecution for ...


Differentiating The Federal Circuit, Elizabeth I. Winston Jan 2011

Differentiating The Federal Circuit, Elizabeth I. Winston

Scholarly Articles and Other Contributions

In 1982, Congress created the United States Court of Appeals for the Federal Circuit. Often referred to as an experiment, the Federal Circuit has flourished. Born again from the ashes of its predecessors, the aptly nicknamed Phoenix Court continues to grow in significance, stature, and strength. As it grows, however, the court remains rooted in its history and in its unique nature. This Article explores the Federal Circuit’s structure and its impact on the development of Federal Circuit jurisprudence. The Federal Circuit is distinguishable by more than its national jurisdiction – the very essence of the court sets it apart ...


The Constitutional Right Not To Participate In Abortions: Roe, Casey, And The Fourteenth Amendment Rights Of Healthcare Providers, Mark L. Rienzi Jan 2011

The Constitutional Right Not To Participate In Abortions: Roe, Casey, And The Fourteenth Amendment Rights Of Healthcare Providers, Mark L. Rienzi

Scholarly Articles and Other Contributions

The Fourteenth Amendment rights of various parties in the abortion context – the pregnant woman, the fetus, the fetus’ father, the state – have been discussed at length by commentators and the courts. Surprisingly, the Fourteenth Amendment rights of the healthcare provider asked to provide the abortion have not. Roe and Casey establish a pregnant woman’s Fourteenth Amendment right to decide for herself whether to have an abortion. Do those same precedents also protect her doctor’s right to decide whether to participate in abortion procedures?

The Court’s substantive due process analysis typically looks for rights that are “deeply rooted ...


Bioethics And Human Rights: Toward A New Constitutionalism, George P. Smith Ii Jan 2011

Bioethics And Human Rights: Toward A New Constitutionalism, George P. Smith Ii

Scholarly Articles and Other Contributions

No abstract provided.


Regulating Morality Through The Common Law And Exclusionary Zoning, George P. Smith Ii, Gregory P. Bailey Jan 2011

Regulating Morality Through The Common Law And Exclusionary Zoning, George P. Smith Ii, Gregory P. Bailey

Scholarly Articles and Other Contributions

The extent to which a free society seeks to regulate sexual expression is problematic. What was defined as immoral or contra bonos mores in the 20th century, has become less of an issue in today’s liberal society. Freedom of sexual intimacy and expression are, to be sure, 1st Amendment and 14th Amendment rights. But, with every assertion of a fundamental right or liberty must come a concomitant understanding that there is a co-ordinate responsibility to exercise that right reasonably. Determining the reasonableness of any conduct grounded in these two amendments must be fact sensitive and guided by community standards ...


Refractory Pain, Existential Suffering, And Palliative Care: Releasing An Unbearable Lightness Of Being, George P. Smith Ii Jan 2011

Refractory Pain, Existential Suffering, And Palliative Care: Releasing An Unbearable Lightness Of Being, George P. Smith Ii

Scholarly Articles and Other Contributions

Since the beginning of the hospice movement in 1967, “total pain management” has been the declared goal of hospice care. Palliating the whole person’s physical, psycho-social, and spiritual states or conditions is central to managing the pain which induces suffering. At the end-stage of life, an inextricable component of the ethics of adjusted care requires recognition of a fundamental right to avoid cruel and unusual suffering from terminal illness. This Article urges wider consideration and use of terminal sedation, or sedation until death, as an efficacious palliative treatment and as a reasonable medical procedure in order to safeguard the ...


Reconceptualizing The Law Of Nuisance Through A Theory Of Economic Captivity, George P. Smith Ii, Matthew Saunig Jan 2011

Reconceptualizing The Law Of Nuisance Through A Theory Of Economic Captivity, George P. Smith Ii, Matthew Saunig

Scholarly Articles and Other Contributions

Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative defenses are — although not often allowed in practice by the courts — found in contributory negligence and assumption of the risk.

This Article seeks to develop a theory of economic captivity which embraces the notion that a plaintiff may be constrained, socio-economically, in making choices ...


Telling Tales In School: Storytelling For Self-Reflection And Pedagogical Improvement In Clinical Legal Education, Faith Mullen Jan 2011

Telling Tales In School: Storytelling For Self-Reflection And Pedagogical Improvement In Clinical Legal Education, Faith Mullen

Scholarly Articles and Other Contributions

In the past twenty years, there has been a surge in legal scholarship that recognizes the value of story in law, and law schools are beginning to tap into the extraordinary power of story. Largely absent from this mix are stories told by law students about their own experiences with the law. The authors used class time formerly devoted to clinic rounds to offer students the opportunity to tell stories about their cases outside the presence of their supervising attorneys. Clinical faculty then compared their own, recorded version of the story of a case with the student’s version. This ...