Law Commons^™

Virotech Patents, Viropiracy, And Viral Sovereignty, Peter K. Yu

Faculty Scholarship

Although there are many important intellectual property and public health developments in the United States, the domestic debate remains surprisingly disconnected from the international debate. To help bridge this disconnect, this Article discusses the interrelationship between intellectual property and public health in the context of communicable diseases. This type of disease is intentionally picked to highlight how developments abroad could easily affect what happens at home, and vice versa.

The first half of this Article recounts three distinct stories about viruses responsible for AIDS, SARS, and the avian influenza (H5N1). The first story focuses on the ongoing developments within the …

Reanalyzing Cost-Benefit Analysis: Toward A Framework Of Function(S) And Form(S), Robert B. Ahdieh

Faculty Scholarship

The analysis herein arises from the collision course between the sweeping reforms mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and a single sentence of the U.S. Code, adopted nearly fifteen years earlier and largely forgotten ever since. Few were likely thinking of Section 106 of the National Securities Market Improvement Act when the Dodd-Frank Act was enacted on July 21, 2010. As applied by the D.C. Circuit less than a year later in Business Roundtable v. SEC, however, that provision’s peculiar requirement of cost-benefit analysis could prove the new legislation’s undoing.

To help navigate …

The Case For A Legislative Amendment Against Accessory Copyright For Grey Market Products: What Can The U.S. Learn From Singapore And Australia, Irene Calboli, Mary Lafrance

Faculty Scholarship

In this article, we suggest that the U.S. Congress could implement a legislative provision prohibiting copyright protection for incidental product features in the context of parallel imports. The U.S. would not be the first country to implement such a provision. In 1994, Singapore pioneered the adoption of a similar provision, which was introduced as an amendment to the SG 1987 Copyright Act. A few years later, in 1998, Australia incorporated a similar amendment to its Aust. Copyright Act 1968. In this article, we analyse in detail the Singapore and Australia provisions and, building upon these provisions, we suggest …

Educating Main Street Lawyers, Luz E. Herrera

Faculty Scholarship

Discussion about the value of a law degree has focused on the financial success of lawyers. Both defenders and critics of the existing legal education model largely ignore the implications that the cost of legal education and high lawyer fees have on access to justice. While a lawyer’s ability to make a decent living must be addressed when determining the value of a legal education, we fail to take into account the fact that there are millions of individuals in the U.S. who cannot find a lawyer to represent them when they need one. For advocates who believe that our …

Without Precedent: Legal Analysis In The Age Of Non-Judicial Dispute Resolution, Mark Edwin Burge

Faculty Scholarship

For more than a century, the American system of legal education has predominantly emphasized the role of cases and judge-made law, but with the understanding that the craft of the lawmaking judge is constrained by the doctrine of stare decisis. This case-oriented approach to teaching law extends to statutes: students learn of the role of courts in interpreting and explaining statutes, making judicial construction of statutes part-and-parcel of statutory law. Thus, pervading the formative first year of law school is the assumption that the role of lawyers is principally to analyze what courts have done in the past in …

Toward A Jurisprudence Of Free Expression In Russia: The European Court Of Human Rights, Sub-National Courts, And Intersystemic Adjudication, Robert B. Ahdieh, H. Forrest Flemming

Faculty Scholarship

Protection of free expression in Russia is headed the wrong direction, but one institution may still be able to slow its backward slide: the Russian judiciary. In particular, sub-national courts-those operating at the ground level-have the potential to shape a renewed jurisprudence of free expression in Russia. To encourage as much, the European Court ofHuman Rights (ECHR) should engage the Russian courts in a pattern of "intersystemic adjudication, "pressing them to embrace ideas about the role of courts, the law, human rights, and free expression more in line with international norms. Hopefully, this can reverse Russia's current path toward the …

Systematically Thinking About Law Firm Ethics: Conference On The Ethical Infrastructure And Culture Of Law Firms, Susan Saab Fortney

Faculty Scholarship

To advance the discourse related to law firm ethics and the impact of formal controls and informal influences on lawyer conduct, we convened on April 5, 2013 the Conference on the Ethical Infrastructure and Culture of Law Firms ("Conference" or "Symposium"). The Conference, conducted under the auspices of the Hofstra Law Review and the Maurice A. Deane School of Law at Hofstra University's Institute for the Study of Legal Ethics, was funded in part by the Abraham J. Gross '78 Conference and Lecture Fund at the Maurice A. Deane School of Law at Hofstra University. Experts who have studied issues …

Something To [Lex Loci] Celebrationis: Federal Marriage Benefits Following United States V. Windsor, Meg Penrose

Faculty Scholarship

The critical issue the Defense of Marriage Act ("DOMA") resolves is: who decides? Who decides whether, when, and to what extent same-sex marriages created in one American state will be recognized by other state governments, and by the federal government? That structural issue is the most important issue at stake in the controversy about interstate recognition of same-sex marriage in the United States. It is a question legal proceduralists and legal structuralists--such as conflict of laws --scholars can, should, and largely do understand and appreciate. The structural matters of respect for the constitutional allocation of government, and adherence to legitimate …

Duke-Ing Out Pattern Or Practice After Wal-Mart: The Eeoc As Fist, Angela D. Morrison

Faculty Scholarship

The Equal Employment Opportunity Commission (EEOC) has an essential role to play in bringing pattern or practice suits, and now is the time for it to assert its role. A pattern or practice claim, also called a systemic claim, is one in which an employer has regularly and purposefully discriminated against a class of employees based on their religion, race, sex, color, or national origin, such that the discrimination is the employer's standard operating procedure. In recent years, the Supreme Court has limited private litigants' access to the courts in ways that impact the ability of plaintiff classes to assert …

Reverse Payments, Perverse Incentives, Murat C. Mungan

Faculty Scholarship

Issuing and enforcing prescription drug patents requires courts and legislatures to strike a delicate balance. A patent gives drug manufacturers a legal, if temporary, monopoly on sales of a drug; this encourages manufacturers to engage in costly research and development of new medicines. But not all patents issued by the Patent Office are ultimately deemed valid – generic drug manufacturers can infringe the patent, and, when sued, attack its validity in court on a variety of grounds, including obviousness. In recent years, patent holders have begun to settle these suits (which they initiated) by paying the alleged infringer. Not surprisingly, …

The Latest Red River Rivalry: The Supreme Court's Recent Decision Regarding The Red River Compact, Luke W. Davis, Gabriel Eckstein

Faculty Scholarship

On June 13, 2013, the United States Supreme Court issued a unanimous decision in a “Red River Rivalry” with much greater implications than the annual football game. In Tarrant Regional Water District v. Herrmann, the court sided entirely with Oklahoma in that state’s dispute with Texas over the allocation of Red River water. This decision will have considerable impact on Texas’ ability to meet its ever-growing water needs. Moreover, the decision could be consequential for other interstate water compacts and the states relying on the rivers and tributaries governed by those agreements.

Endangered Species In The Oil Patch: Challenges And Opportunities For The Oil And Gas Industry, Gabriel Eckstein, Jesse Snyder

Faculty Scholarship

Tension among competing interests is nothing new in environmental law. Even among the most tenacious adversaries, the ability to find common ground can serve as an impetus to further the aims of both industry and environmental proponents. Broadly speaking, advocates of the oil and gas industry prefer few restraints, if any, on exploration, development, and production. Comparatively, champions of biological and ecological preservation favor regulatory protections to conserve these interests. Cutting across these often disparate objectives, the Endangered Species Act (ESA) presents a not-so-obvious opportunity for both sides to receive a share of the pie through cooperation and forward planning. …

Bridging The International Law-International Relations Divide: Taking Stock Of Progress, Adam Irish, Charlotte Ku, Paul F. Diehl

Faculty Scholarship

International law (IL) and international relations (IR) have long been considered separate academic enterprises, with their own theoretical orientations, methodologies, and publishing outlets.

The net effect has been that the insights and research findings of one discipline have largely been unknown or ignored in the other. This has occurred despite the commonality of focusing on many of the same substantive interests, namely international cooperation in general, issues of war and peace, environmental regulation, and trade. This has led to numerous calls over the past two decades to bridge the international law and international relations divide. Yet one recent work claims …

Render Unto Rawls: Law, Gospel, And The Evangelical Fallacy, Wayne R. Barnes

Faculty Scholarship

There are many voices in American politics claiming that various candidates, laws and policies are necessitated by a “Christian” worldview. Many of these voices use explicit public rhetoric that their position is the one compelled by “Christian” principles. Although religious voices have been present in the United States since its founding, the volume and urgency of the voices seems to have increased dramatically in the last several decades, during the so-called “culture wars.” These voices famously come from the Christian Religious Right, advocating socially conservative laws on issues such as abortion and same-sex marriage. But there are also voices from …

Article 9 And The Characterization And Treatment Of Tenant Security Deposits, William H. Henning, R. Wilson Freyermuth

Faculty Scholarship

Each day, thousands of lessees enter into contracts under which they lease either real or personal property. Under the majority of these contracts, the lessee agrees to pay (and does pay) a "security deposit" to the lessor. The lessor typically agrees to refund the deposit at the conclusion of the lease term if the lessee fully performs its obligations under the lease contract. Is Article 9 relevant to this transaction? Has the lessor taken a "security interest" in the lessee's property to secure the lessee's obligations under the lease contract?

In Part I, we highlight two opinions representative of the …

Clark Kerr And Me: The Future Of The Public Law School, Rachel F. Moran

Faculty Scholarship

Clark Kerr has long enjoyed an iconic status among leaders in public higher education. The former president of the University of California left a lasting impression on the academic world with his Godkin Lectures on the future of colleges and universities delivered at Harvard in 1963. He spoke at a moment when public higher education, and indeed higher education more generally, had been enjoying a renaissance of energy and vision. After World War II, veterans returned and reinvigorated the student body with the support of the GI Bill, and state legislatures generously funded public institutions to keep tuition low so …

Measuring State-Created Immigration Climate, Huyen Pham, Pham Hoang Van

Faculty Scholarship

The phenomenon of subfederal immigration regulation, in which state and local governments enact laws regulating immigrants within their jurisdictions, has become an enduring part of the American legal landscape. Though still the subject of occasional legal challenges, the focus of the national conversation has shifted from whether to have subfederal immigration regulation, to what form that regulation should take. States have taken widely varying approaches to immigration regulation; some like Arizona and Alabama have enacted restrictive, negative laws, while other states like Illinois and California have enacted laws to benefit the immigrants within their jurisdictions. Thus, in order to understand …

Sixteen And Pregnant: Minors' Consent In Abortion And Adoption, Malinda L. Seymore

Faculty Scholarship

A minor girl’s decision about how to handle an unplanned pregnancy is a highly contested issue. Especially contentious is the minor’s ability to consent to an abortion independently of an adult such as her parents or a judge. That issue has received substantial attention from policy makers, scholars, judges, and legislators. Almost no attention has been paid, however, to the decision of a pregnant minor to continue her pregnancy, relinquish her constitutionally protected parental rights, and place a child for adoption. In 37 states, a minor’s abortion decision is regulated differently than an adult’s, while in only 15 states is …

Paternalism And Psychic Taxes: The Government's Use Of Negative Emotions To Save Us From Ourselves, Gary M. Lucas Jr

Faculty Scholarship

Paternalism has become increasingly popular among policymakers. Governments at all levels are seriously considering or have recently adopted many paternalistic proposals. For example, the Obama Administration has increased cigarette taxes and adopted a tax on indoor tanning. Similarly, New York City Mayor Michael Bloomberg has proposed a ban on the sale of soda and other sugary drinks in containers larger than sixteen ounces. All of these policies are motivated to some degree by a desire to save people from themselves.

This Article analyzes whether the government should use "psychic taxes" as a tool for achieving paternalistic goals. A psychic tax …

The Hastie Fellowship Program At Forty: Still Creating Minority Law Professors, Thomas W. Mitchell

Faculty Scholarship

This article provides a history of and information about the structure of the William H. Hastie Fellowship Program at the University of Wisconsin Law School. This article is part of a series of articles published by the Wisconsin Law Review commemorating Professor James E. Jones Jr., emeritus professor of law at the University of Wisconsin Law School and the founder of the Hastie Fellowship Program. Forty years after this pioneering program was established, the Hastie Fellowship Program continues to represent the preeminent pipeline program that has enabled more than 30 minority lawyers to become tenure-track law professors at law schools …

Resistance Is Not Futile: Harnessing The Power Of Counter-Offensive Tactics In Legal Persuasion, Peter Reilly

Faculty Scholarship

A core competency for people working in law or business is the ability to influence and persuade: People need to become expert at getting others to agree, to go along, and to give in. The potential “targets” of one’s influence throughout a given workday are seemingly endless and include clients and customers, co-counsel, opposing counsel, supervisors, direct reports, contractors, subcontractors, consultants, secretaries, judges, juries, witnesses, police officers, court personnel, and others. Moreover, that influence is largely exerted through words spoken and behaviors exhibited within the context of a negotiation. And yet, leading academics have argued that the vast majority of …

Five Oft-Repeated Questions About China's Recent Rise As A Patent Power, Peter K. Yu

Faculty Scholarship

Policymakers, industries, commentators and the media have widely criticized China for its failure to adequately protect intellectual property rights. In recent years, however, the discourse on intellectual property developments in China has slowly begun to change. Such a change is the most notable in the patent area. Today, China is already among the top five countries filing patent applications through the Patent Cooperation Treaty (PCT). In 2011, the number of PCT applications increased by 33.4% to 16,406, earning China the fourth spot, behind only the United States, Japan and Germany. Among all the applicants, ZTE Corp. and Huawei Technologies had …

Cyberfinancing For Economic Justice, Lisa T. Alexander

Faculty Scholarship

This Article argues for the socially optimal regulation of online peer-to-peer (P2P) lending and crowdfunding to advance economic justice in the United States. Peer-to-peer lending websites, such as Prosper. com orKiva.org, facilitate lending transactions between individuals online with-out the involvement of a traditional bank or microfinance institution. Crowdfunding websites, such as Kickstarter. com, enable individuals to obtain financing from large numbers of contributors at once through an open online request for funds. These web-based transactions, and the intermediary organizations that facilitate them, constitute emerging cyberfinancing markets. These markets connect many individuals at once, across class, race, ethnicity, nationality, space, and …

Corporate Strategies, First Sale Rules, And Copyright Misuse: Waiting For Answers From Kirstsaeng V. Wiley And Omega V. Costco (Ii), Irene Calboli

Faculty Scholarship

In this Essay, I continue my previous analysis of the first sale rule (or principle of exhaustion) in intellectual property law in the context of international trade. In particular, I highlight the differences between the first sale rules in trademark and copyright law--in particular, international first sale in trademark law and national first sale (at least to date) in copyright law--and criticize the corporate trend to invoke copyright protection for incidental product features of otherwise functional and uncopyrightable products in order to restrict the importation of gray market (genuine) products into the United States. During the past decade, corporations have …

Growing Inequality And Racial Economic Gaps, Thomas W. Mitchell

Faculty Scholarship

Over the past several decades, economic inequality has grown dramatically in the United States while inter-generational economic mobility has declined, which has challenged the very notion of the "American Dream." In fact, the United States is more economically unequal than most other industrialized countries. Further, there are dramatic and growing racial economic gaps in this country. Despite the Occupy Wall Street Movement, and the various spinoffs it has catalyzed, there has not been any sustained, widespread social movement to address economic inequality in the United States over the course of the past several decades. Furthermore, it is unlikely that a …

Tax Court Find Stars Transaction Lacks Economic Substance, Robert D. Probasco, Lee S. Meyercord

Faculty Scholarship

In Bank of New York Mellon Corp. v. Commissioner, the Tax Court found that a structured trust advantaged repackaged securities (“STARS”) transaction entered into by BNY Mellon lacked economic substance, and disallowed foreign tax credits of $199 million as well as transactional expenses of $8 million. BNY Mellon is the first test case to emerge from the IRS’s attempts to disallow tax benefits to several financial institutions that participated in the STARS transaction.

The STARS transaction is one of a number of different transactions that the IRS refers to as “foreign tax credit generators.” These transactions generally rely on inconsistent …

The Thoughtful Integration Of Mediation Into Bilateral Investment Treaty Arbitration, Nancy A. Welsh, Andrea Kupfer Schneider

Faculty Scholarship

While the current system of investment treaty arbitration has definitely improved upon the “gunboat diplomacy” used at times to address disputes between states and foreign investors, there are signs that reform is needed: states and investors increasingly express concerns regarding the costs associated with the arbitration process, some states refuse to comply with arbitral awards, other states hesitate to sign new bilateral investment treaties, and citizens have begun to engage in popular unrest at the prospect of investment treaty arbitration. As a result, both investors and states are advocating for the use of mediation to supplement investor-state arbitration. This Article …

Foreground Principles, Timothy M. Mulvaney

Faculty Scholarship

The U.S. Supreme Court has declared for decades that, for Takings Clause purposes, property interests are not created by the Constitution but rather are determined by “existing rules or understandings that stem from an independent source such as state law.” However, the Court has exhibited a strong normative preference for a certain type of independent source — “background principles” of the common law — over others, namely state statutory and administrative law. This Article calls this preference into question.

The Article develops a model to demonstrate the four basic categories, or quadrants, of takings decisions that extensive reliance on the …

"Moving The Ball Forward" In Consumer And Employment Dispute Resolution: What Can Planning, Talking, Listening And Breaking Bread Together Accomplish?, Nancy A. Welsh, David B. Lipsky

Faculty Scholarship

Article Extract:

Mandatory pre-dispute arbitration has been a divisive issue for many years, particularly since the Supreme Court began enforcing the arbitration clauses that businesses and employers impose on consumers and employees, respectively, in contracts of adhesion. In 2009, the Dispute Resolution Section’s Council proposed to weigh in on this issue through the vehicle of an ABA House of Delegates resolution. The compromise position developed by the Section, expressing support for pre-dispute mandatory arbitration clauses provided they offer a meaningful opt-out, generated such a firestorm of opposition from both pro-arbitration and anti-arbitration advocates that the Council ultimately chose to abstain …

Outspoken: Social Media And The Modern College Athlete, Meg Penrose

Faculty Scholarship

The First Amendment to the United States Constitution grants American citizens the right to free speech. However, in the case of college athletes, this right is not without limitation. In exchange for the privilege of participating in college level athletics, college athletes voluntarily agree to terms that restrict their abilities to speak freely, specifically in the context of social media platforms. This article details situations in which college athletes have made offensive statements via social media for which they later needed to delete, explain, and apologize. These examples support the notion that restrictions on college athletes' speech are not only …