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Articles 1 - 30 of 32
Full-Text Articles in Law
Right On Time: A Reply To Professors Allen, Claeys, Epstein, Gordon, Holbrook, Mossoff, Rose, And Van Houweling, Dotan Oliar, James Y. Stern
Right On Time: A Reply To Professors Allen, Claeys, Epstein, Gordon, Holbrook, Mossoff, Rose, And Van Houweling, Dotan Oliar, James Y. Stern
Faculty Publications
A simple observation started us off in writing Right on Time. Studying and teaching intellectual property law, we noticed striking parallels between traditional first possession rules in property law and analagous rules governing the acquisition of patent, copyright, and trademark rights. We thought that established first possession principles could illuminate the workings of IP law. As we dug in, however, it became increasingly clear that our premise wasn’t quite right. While many penetrating commentators had said many penetrating things about first possession, the leading treatments tended to focus on significant individual aspects of the overall issue. What we could …
Right On Time: First Possession In Property And Intellectual Property, Dotan Oliar, James Y. Stern
Right On Time: First Possession In Property And Intellectual Property, Dotan Oliar, James Y. Stern
Faculty Publications
How should we allocate property rights in unowned tangible and intangible resources? This Article develops a model of original acquisition that draws together common law doctrines of first possession with original acquisition doctrines in patent, copyright, and trademark law. The common denominator is time: in each context, doctrine involves a trade-off between assigning entitlements to resources earlier or later in the process of their development and use. Early awards risk granting exclusivity to parties who may not be capable of putting resources to their best use. Late awards prolong contests for ownership, which may generate waste or discourage acquisition efforts …
The Vanishing Common Law Judge, Neal Devins, David Klein
The Vanishing Common Law Judge, Neal Devins, David Klein
Faculty Publications
The common law style of judging appears to be on its way out. Trial courts rarely shape legal policymaking by asserting decisional autonomy through distinguishing, limiting, or criticizing higher court precedent. In an earlier study, we demonstrated the reluctance of lower court judges to assert decisional autonomy by invoking the holding–dicta dichotomy. In this Article, we make use of original empirical research to study the level of deference U.S. district court judges exhibit toward higher courts and whether the level of deference has changed over time. Our analysis of citation behavior over an eighty-year period reveals a dramatic shift in …
Sovereignty, Territoriality, And The Enforcement Of Foreign Judgments, George Rutherglen, James Y. Stern
Sovereignty, Territoriality, And The Enforcement Of Foreign Judgments, George Rutherglen, James Y. Stern
Faculty Publications
No abstract provided.
Felix Cohen On Legislation, Michael S. Green
Felix Cohen On Legislation, Michael S. Green
Faculty Publications
Felix Cohen's and Walter Wheeler Cook's prediction theory of law was a fundamentally positivist theory, according to which the law of a jurisdiction is reducible to regularities of official behavior. Cohen used the prediction theory to argue for philosophical anarchism - that is, the view that the existence of law does not entail a duty, even a prima facie duty, of obedience. In particular, Cohen extended philosophical anarchism to adjudication. The fact that officials in a jurisdiction regularly behave in a certain way does not give a judge adjudicating a case a moral reason to do the same. In deciding …
Is There Really A Difference Between Justification And Excuse Or Did We Academics Make It Up?, Linda A. Malone
Is There Really A Difference Between Justification And Excuse Or Did We Academics Make It Up?, Linda A. Malone
Faculty Publications
No abstract provided.
Securities Fraud, Recidivism, And Deterrence, Jayne W. Barnard
Securities Fraud, Recidivism, And Deterrence, Jayne W. Barnard
Faculty Publications
Legal scholars have expended considerable energy on the study of high-level securities fraud violators-Ken Lay, Bernie Ebbers, Dennis Kozlowski, etc. There has been little attention, however, to the perpetrators of "retail" securities fraud-the con artists who sell bogus stock over the Internet, orchestrate elaborate pump-and-dump schemes, and create a never-ending array of purportedly "risk free" investment opportunities. Collectively, and in a cruel mockery of capitalism, these offenders extract hundreds of millions dollars from investors each year. In this article, Professor Barnard examines this group of offenders, focusing particularly on those who recidivate-often moving from state to state and scheme to …
The Failure Of Bowles V. Russell, Scott Dodson
The Failure Of Bowles V. Russell, Scott Dodson
Faculty Publications
The Supreme Court recently decided Bowles v. Russell—perhaps that Term’s most underrated case—which characterized the time to file a civil notice of appeal as jurisdictional and therefore not subject to equitable excuses for noncompliance. In so holding, the Court overstated the supporting precedent, inflated the jurisdictional importance of statutes, and undermined an important recent movement to clarify when a rule is jurisdictional and when it is not. This did not have to be. The Court missed a golden opportunity to chart a middle course—holding the rule mandatory but nonjurisdictional—that would have been more consistent with precedent while resolving the …
Family Structure, Children, And Law, Vivian E. Hamilton
Family Structure, Children, And Law, Vivian E. Hamilton
Faculty Publications
No abstract provided.
Creative Sanctions For Online Investment Fraud, Jayne W. Barnard
Creative Sanctions For Online Investment Fraud, Jayne W. Barnard
Faculty Publications
No abstract provided.
Palazzolo, The Public Trust, And The Property Owner's Reasonable Expectations: Takings And The South Carolina Marsh Island Bridge Debate, Erin Ryan
Faculty Publications
No abstract provided.
What Do Snowmobiles, Mercury Emissions, Greenhouse Gases, And Runoff Have In Common?: The Controversy Over "Junk Science", Linda A. Malone
What Do Snowmobiles, Mercury Emissions, Greenhouse Gases, And Runoff Have In Common?: The Controversy Over "Junk Science", Linda A. Malone
Faculty Publications
No abstract provided.
Coercion And Choice Under The Establishment Clause, Cynthia V. Ward
Coercion And Choice Under The Establishment Clause, Cynthia V. Ward
Faculty Publications
In recent Establishment Clause cases the Supreme Court has found nondenominational, state-sponsored prayers unconstitutionally "coercive" -although attendance at the events featuring the prayer was not required by the state; religious dissenters were free to choose not to say the challenged prayers; and dissenters who so chose, or who chose not to attend the events, suffered no state-enforced sanction. Part I of this Article lays out the historical background that gave rise to the coercion test, traces the development of that test in the Court's case law, and isolates the core elements in the vision of coercion that animates the test. …
Space, Place, And Speech: The Expressive Topography, Timothy Zick
Space, Place, And Speech: The Expressive Topography, Timothy Zick
Faculty Publications
No abstract provided.
When Lochner Met Dolan: The Attempted Transformation Of American Land Use Law By Constitutional Interpretation, Ronald H. Rosenberg, Nancy Stroud
When Lochner Met Dolan: The Attempted Transformation Of American Land Use Law By Constitutional Interpretation, Ronald H. Rosenberg, Nancy Stroud
Faculty Publications
No abstract provided.
Allocution For Victims Of Economic Crimes, Jayne W. Barnard
Allocution For Victims Of Economic Crimes, Jayne W. Barnard
Faculty Publications
No abstract provided.
The Effect Of Courtroom Technologies On And In Appellate Proceedings And Courtrooms, Fredric I. Lederer
The Effect Of Courtroom Technologies On And In Appellate Proceedings And Courtrooms, Fredric I. Lederer
Faculty Publications
No abstract provided.
Negotiated Development Denial Meets People's Court: Del Monte Dunes Brings New Wildcards To Exactions Law, Jonathan M. Davidson, Ronald H. Rosenberg, Michael C. Spata
Negotiated Development Denial Meets People's Court: Del Monte Dunes Brings New Wildcards To Exactions Law, Jonathan M. Davidson, Ronald H. Rosenberg, Michael C. Spata
Faculty Publications
The United States Supreme Court Answered "YES" to the $1.45 million over exaction question for 1999. In City of Monterey v. Del Monte Dunes at Monterey Ltd., a unanimous court extended the scope of compensatory takings review beyond land dedication conditions into the realm of regulatory denial. Justice Kennedy's opinion vitalized the "legitimate state interests" test from Agins v. City of Tiburon to sustain an inverse condemnation conclusion and damage award to the frustrated developer. A majority of the court also concurred that the trial court may delegate this takings conclusion to the jury under federal civil rights law. The …
Civil Rights Act Of 1991 -- Employer Liability For Punitive Damages In Title Vii Claims, Angela M. Banks
Civil Rights Act Of 1991 -- Employer Liability For Punitive Damages In Title Vii Claims, Angela M. Banks
Faculty Publications
No abstract provided.
Some Thoughts On The Evidentiary Aspects Of Technologically Produced Or Presented Evidence, Fredric I. Lederer
Some Thoughts On The Evidentiary Aspects Of Technologically Produced Or Presented Evidence, Fredric I. Lederer
Faculty Publications
No abstract provided.
Corporate Philanthropy, Executives' Pet Charities And The Agency Problem, Jayne W. Barnard
Corporate Philanthropy, Executives' Pet Charities And The Agency Problem, Jayne W. Barnard
Faculty Publications
No abstract provided.
The Children We Abandon: Religious Exemptions To Child Welfare And Education Law As Denials Of Equal Protection To Children Of Religious Objectors, James G. Dwyer
Faculty Publications
The story of children who die because their parents, in observance of their own religious principles, withhold conventional medical treatment from them is a familiar one. In this Article, James G. Dwyer shows that the phenomenon of parents denying secular benefits to their children for religious reasons goes far beyond these few highly publicized cases, extending into the realm of education as well as medical care. Moreover, Dr. Dwyer shows that the federal and state governments endorse this practice by statutorily exempting 'religious objector' parents from otherwise generally applicable compulsory child care and education laws. He argues that courts addressing …
Parents' Religion And Children's Welfare: Debunking The Doctrine Of Parents' Rights, James G. Dwyer
Parents' Religion And Children's Welfare: Debunking The Doctrine Of Parents' Rights, James G. Dwyer
Faculty Publications
The scope, weight, and assignment of parental rights have been the focus of much debate among legal commentators. These commentators generally have assumed that parents should have some rights in connection with the raising of their children. Rarely have commentators offered justifications for attributing rights to persons as parents, and when they have done so they have failed to subject those justifications to close scrutiny. This Article takes the novel approach of challenging parental rights in their entirety. The author explores the fundamental questions of what it means to say that individuals have rights as parents, and whether it is …
Legal Education And The Theatre Of The Absurd: "Can't Anybody Play This Here Game?", Paul A. Lebel
Legal Education And The Theatre Of The Absurd: "Can't Anybody Play This Here Game?", Paul A. Lebel
Faculty Publications
No abstract provided.
Valuation Issues In Applying Fraudulent Transfer Law To Leveraged Buyouts, Alemante G. Selassie
Valuation Issues In Applying Fraudulent Transfer Law To Leveraged Buyouts, Alemante G. Selassie
Faculty Publications
No abstract provided.
Fraud Bases Of Bulk Transferee Liability, Peter A. Alces
Fraud Bases Of Bulk Transferee Liability, Peter A. Alces
Faculty Publications
No abstract provided.
A Constitutional Right To Home Instruction?, Neal Devins
A Constitutional Right To Home Instruction?, Neal Devins
Faculty Publications
No abstract provided.
The Infliction Of Harm Through The Publication Of Fiction: Fashioning A Theory Of Liability, Paul A. Lebel
The Infliction Of Harm Through The Publication Of Fiction: Fashioning A Theory Of Liability, Paul A. Lebel
Faculty Publications
No abstract provided.
Standing And Adverseness In Challenges Of Tax Exemptions For Discriminatory Public Schools, Thomas Mccoy, Neal Devins
Standing And Adverseness In Challenges Of Tax Exemptions For Discriminatory Public Schools, Thomas Mccoy, Neal Devins
Faculty Publications
No abstract provided.
A Jurisprudential Perspective For The True Codification Of Payments Law, Peter A. Alces
A Jurisprudential Perspective For The True Codification Of Payments Law, Peter A. Alces
Faculty Publications
No abstract provided.