Law Commons^™

Coordination-Focused Patent Policy, Stephen Yelderman

Journal Articles

This Article explores the practical consequences of an important shift that has recently taken place in patent theory. Although it was long agreed that the purpose of granting patents is to reward invention, today many scholars instead attempt to justify the patent system based on its role in facilitating information exchange and enabling technical coordination among firms. This change in justification is controversial, and its viability remains a fiercely contested question. But despite intense attention at the level of theory, little has been said about the consequences of this debate for patent policy itself. This Article addresses that void, developing …

The English Fire Courts And The American Right To Civil Jury Trial, Jay Tidmarsh

Journal Articles

This Article uncovers the history of a long-forgotten English court system, the “fire courts,” which Parliament established to resolve dispute between landlords and tenants in urban areas destroyed in catastrophic fires. One of the fire courts’ remarkable features was the delegation of authority to judges to adjudicate disputes without juries. Because the Seventh Amendment’s right to a federal civil jury trial depends in part on the historical practice of English courts in 1791, this delegation bears directly on the present power of Congress to abrogate the use of juries in federal civil litigation.

Parliament enacted fire-courts legislation on eight occasions …

Do Patent Challenges Increase Competition?, Stephen Yelderman

Journal Articles

This Article is the first to seriously scrutinize the claim that patent challenges lead to increased competition. It identifies a number of conditions that must hold for a patent challenge to provide this particular benefit, and evaluates the reasonableness of assuming that the pro-competitive benefits of patent challenges are generally available. As it turns out, there are a number of ways these conditions can and regularly do fail. This Article synthesizes legal doctrine, recent empirical scholarship, and several novel case studies to identify categories of challenges in which the potential benefits for competition are smaller than previously thought or, in …

Neoclassical Administrative Common Law, Jeffrey A. Pojanowski

Journal Articles

This essay reviews John Dickinson’s neglected classic, Administrative Justice and the Supremacy of Law in the United States. Writing on the cusp of the New Deal, Dickinson helped establish a mainstream, moderate stance about the shape and legitimacy of the administrative state. A closer reading of this work, which is rich in jurisprudential reflection and historical learning, offers a better idea about the structure, promise, and limits of the doctrinal world he helped create.

Outlining The Case For A Common Law Duty Of Care Of Business To Exercise Human Rights Due Diligence, Douglass Cassell

Journal Articles

This article outlines the case for a business duty of care to exercise human rights due diligence, judicially enforceable in common law countries by tort suits for negligence brought by persons whose potential injuries were reasonably foreseeable. A parent company’s duty of care would extend to the human rights impacts of all entities in the enterprise, including subsidiaries. A company would not be liable for breach of the duty of care if it proves that it reasonably exercised due diligence as set forth in the Guiding Principles on Business and Human Rights. On the other hand, a company’s failure to …

Justice Brandeis And Substantive Due Process, Barry Cushman

Journal Articles

This brief essay, prepared for the Touro Law Center and Jewish Law Institute conference, “Louis D. Brandeis: An Interdisciplinary Retrospective,” examines the substantive due process jurisprudence of Justice Brandeis.

A Code-Based Approach To Unauthorized Access Under The Computer Fraud Abuse Act, Patricia L. Bellia

Journal Articles

Thirty years ago, Congress passed the Computer Fraud and Abuse Act (CFAA) to combat the emerging problem of computer crime. The statute’s core prohibitions targeted one who “accesses” a computer “without authorization” or who “exceeds authorized access.” Over time, incremental statutory changes and large-scale technical changes have dramatically expanded the potential scope of the CFAA. The question of what constitutes unauthorized access has taken on far greater significance than it had thirty years ago, and courts remain deeply divided on this question. This Article explores the text, purpose, and history of the CFAA, as well as a range of normative …

Diagnosis And Treatment Of The "Superiority Problem", Jay Tidmarsh

Journal Articles

Christine Bartholomew has provided a brilliant diagnosis of the "superiority problem" in class-action law, although I am not convinced that her plan to treat the will cure the patient. If superiority is to be eliminated, predominance must also be abandoned. Some new formula must replace Rule 23(b)(3) in its entirety. The problem of Rule 23(b)(3) is that the factors (especially superiority) give too much power to courts to get the results they want. Unless the ills that Professor Bartholomew documents are to be repeated in a new form, any replacement for Rule 23(b)(3) must be far more specific and concrete …

Result Inequality In Family Law, Margaret Brinig

Journal Articles

To the extent that family law is governed by statute, all families are treated as though they are the same. This is of course consistent with the equal protection guarantees of the US Constitution as well as those of the states. However, in our pluralistic society, all families are not alike. At birth, some children are born to wealthy, married parents who will always put the children’s interests first and will never engage in domestic violence. Many laws benefit these children, while, according to some academics, they either further disadvantage other children or at best ignore their needs.

This presentation …

Without Deference, Jeffrey Pojanowski

Journal Articles

This essay explores what judicial review of agency interpretations of law would look like if the Supreme Court abandoned Chevron deference in favor de novo review. It concludes that such an alternative regime has appealing features, but may not bring as much immediate, practical change as many critiques or defenses of Chevron presume. The largest change would come from how we think about law and policy in the administrative state. The theoretical scaffolding that would uphold a regime of non-deferential review is far more classical in cast than the moderate legal realism underwriting Chevron. The more traditional character of this …

Congressional Originalism, Amy Coney Barrett, John Copeland` Nagle

Journal Articles

Precedent poses a notoriously difficult problem for originalists. Some decisions – so-called super precedents – are so well baked into government that reversing them would wreak havoc. Originalists have been pressed to either acknowledge that their theory could generate major disruption or identify a principled exception to their insistence that judges are bound to enforce the Constitution’s original public meaning. While the stylized process of adjudication narrows the questions presented to the Court, in Congress the question of a measure’s constitutionality is always on the table. And because framing constraints do not narrow the relevant and permissible grounds of decision …

International Legal Protections For Migrants And Refugees: A Response To Father Brennan, Mary Ellen O'Connell

Journal Articles

Father Brennan’s Essay, “Human Rights and the National Interest: The Case Study of Asylum, Migration, and National Border Protection,” is a complex legal and ethical analysis of refugee law. This Commentary focuses on one aspect of the international law relevant to the Essay, namely, state obligations to migrants. Father Brennan’s main argument that migrants and refugees may be turned back, so long as the action respects human rights law, is consistent with the human right to life. Justly stopping migrants and refugees requires states to stop them before they enter either international waters or the state’s territorial waters. Further, Father …

Checks, Balances, And Nuclear Waste, Bruce R. Huber

Journal Articles

The Nuclear Waste Policy Act of 1982 established a process for siting and constructing repositories for nuclear waste. When Nevada’s Yucca Mountain emerged as a likely repository site, that state’s officials and allies exercised the numerous political and legal checks afforded by the Act and appear, at least for the time being, to have defeated the selection. But Nevada’s victory may well be the nation’s loss. In the absence of a national waste repository, nuclear power plant operators have no choice but to store spent nuclear fuel on site, where it presents a number of risks not contemplated by the …

Enduring Originalism, Jeffrey Pojanowski, Kevin C. Walsh

Journal Articles

If our law requires originalism in constitutional interpretation, then that would be a good reason to be an originalist. This insight animates what many have begun to call the “positive turn” in originalism. Defenses of originalism in this vein are “positive” in that they are based on the status of the Constitution, and constitutional law, as positive law. This approach shifts focus away from abstract conceptual or normative arguments about interpretation and focuses instead on how we actually understand and apply the Constitution as law. On these grounds, originalism rests on a factual claim about the content of our law: …

Tax Treaties And The Taxation Of Services In The Absence Of Physical Presence, Michael Kirsch

Journal Articles

It is old news that modern technological developments have strained long‐standing international tax policies and principles. Tax treaties have attempted to keep pace by fitting these new developments within the existing framework. This brief article addresses one aspect of technological developments that can directly affect individual taxpayers—the increasing ability to deliver personal services electronically across borders, without the need for the service provider to have a physical presence in the “source” country. In particular, it focuses on recent developments with the U.N. Model, which may allow source‐based taxation of at least some types of services income even in the absence …

Discretionary Dockets, Randy J. Kozel, Jeffrey Pojanowski

Journal Articles

The Supreme Court’s workload and its method for selecting cases have drawn increasing critical scrutiny. Similarly, and separately, recent commentary has focused on the disparate approaches the Court has taken to resolving cases on its (historically small) docket. In this Essay we draw these two lines of inquiry together to argue that the Court’s case selection should align with its approach to constitutional adjudication. In doing so, we discuss four modes of constitutional decisionmaking and then examine the interplay between those modes, the Court’s management of its docket, and its sense of institutional role. The Court, we argue, has neither …

White Paper: Options For A Treaty On Business And Human Rights, Douglass Cassel, Anita Ramasastry

Journal Articles

The United Nations Human Rights Council decided in June 2014 to establish an Intergovernmental Working Group to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” The first meeting of the Working Group will take place in Geneva in July 2015.

The Council did not further specify what sort of instrument should be drafted. The Center for Human Rights of the American Bar Association and the Law Society of England and Wales have asked the present authors to prepare a “White Paper” on possible options for a …

Realising The Promise Of Costs Budgets: An Economic Analysis, Jay Tidmarsh

Journal Articles

The costs-budget system implemented in the Jackson reforms promises to keep litigation costs within socially appropriate bounds. To realise this promise fully however; the goal of this reform must be reoriented. Using real-options analysis, this article demonstrates that costs budgeting in its present form often fails to achieve a reduction of litigation costs to the socially appropriate level–defined to be the point at which the social benefits of litigation exceeds its costs–because parties may have a private incentive to invest socially excessive amounts on litigation. This result is true under both the English ("loser pays") and the American ("bear your …

Book Review, Douglass Cassell

Journal Articles

Reviewing Federico Fabbrini, Fundamental Rights in Europe: Challenges and Transformations in Comparative Perspective (2014)

Fabbrini’s study sheds valuable light on the dynamics that shape the interactions among multiple levels of human rights protection in Europe, and on the consequences for rights protection that tend to ensue. Less successful is his outsized confidence in a comparative approach, especially as applied to political and juridical communities as distinct as the USA and Europe. While the imperfect comparisons yield useful insights, Fabbrini at times overstates their import.

Ilya Somin's The Grasping Hand: Kelo V. City Of New London & The Limits Of Eminent Domain (Book Review), James J. Kelly Jr.

Journal Articles

Ultimately, Somin’s single-minded dedication to a federal constitutional ban on economic development taking prevents the book from offering a full and fair consideration of alternative responses to eminent domain abuse. His survey of the various state legislative reforms enacted as a result of homeowner backlash to Kelo quite rightly points out the shortcomings of populist challenges to sophisticated vested interests. But his blatant aversion to engage with the substantial problems that public purpose land assembly faces without resort to eminent domain closes off any fair comparison of proposals that rival his own, particularly the position of fellow libertarian and ardent …

Perceptions And Reality: The Enforcement Of Foreign Arbitral Awards In China, Roger P. Alford, Julian G. Ku, Bei Xiao

Journal Articles

The Article begins in Part I by discussing the academic literature reviewing China's implementation of the New York Convention with re­spect to foreign arbitral awards. In Part II, the Article lays out the domes­tic legal framework in China for implementing foreign arbitral awards and reviews judicial decisions interpreting the New York Convention. In Part III, the Article reports on the results of its survey of practitioner perceptions and experiences with the Chinese system of enforcing arbitral awards. Finally, in Part IV, the article concludes with a possible explana­tion for continuing skeptical views of China's system of enforcing foreign arbitral awards.

'The Better Part Of Valour Is Discretion': Should The Irs Change Or Surrender Its Oversight Of Tax-Exempt Organizations?, Lloyd Hitoshi Mayer

Journal Articles

Recent events have highlighted the difficulties the Internal Revenue Service faces when attempting to ensure that purportedly tax-exempt organizations in fact qualify for that status. The problems in this area go much deeper than a group of IRS employees subjecting certain organizations to greater scrutiny based on their political leanings, however. For decades members of the public, the media, the academy, and Congress have criticized the limited ability of the IRS to ensure that organizations claiming exemption from federal income tax in fact deserve that categorization. Yet examples of IRS failings in this area continue to arise with depressing frequency. …

The Fair Market Value Of Public Resources, Bruce R. Huber

Journal Articles

This Article explores the problem of public resource sales with particular reference to natural resources managed by the federal government. Lands owned by the United States hold trillions of dollars' worth of natural resources. Federal agencies earn billions in annual revenue from resource sales, yet critics assert that billions more could be reaped if resources were sold for a fair price. Although federal law has increasingly required that agencies price resources at fair market value, this requirement is surprisingly difficult to interpret and even more dfficult to implement and enforce. This Article analyzes the various forces that bear on public …

The Shareholder Value Of Empowered Boards, K.J. Martijn Cremers, Simone M. Sepe

Journal Articles

In the last decade, the balance of power between shareholders and boards has shifted dramatically. Changes in both the marketplace and the legal landscape governing it have turned the call for empowered shareholders into a new reality. Correspondingly, the authority that boards of directors have historically held in U.S. corporate law has been eroded. Empirical studies associating staggered boards with lower firm value have been interpreted to favor this shift of authority, supporting the view that protecting boards from shareholder pressure is detrimental to shareholder interests. This Article presents new empirical evidence on staggered boards that not only exposes the …

Does The Death Penalty Require Death Row? The Harm Of Legislative Silence, Marah S. Mcleod

Journal Articles

This Article addresses the substantive question, "Does the death penalty require death row?" and the procedural question, "Who should decide? In most capital punishment states, prisoners sentenced to death are held, because of their sentences alone, in far harsher conditions of confinement than other prisoners. Often, this means solitary confinement for the years and even decades until their executions. Despite a growing amount of media attention to the use of solitary confinement, most scholars and courts have continued to assume that the isolation of death-sentenced prisoners on death row is an inevitable administrative aspect of capital punishment. To the extent …

Fragmented Oversight Of Nonprofits In The United States: Does It Work? Can It Work?, Lloyd Hitoshi Mayer

Journal Articles

Previously Brendan Wilson and I concluded that oversight of nonprofit governance would be most effective if it remained the responsibility of the states, although it would benefit from both a federal funding mechanism and enhanced coordination with the Internal Revenue Service.' More recently I concluded that oversight of federal tax exemption would be better served if Congress shifted the locus of that oversight to a national, self-regulatory organization working in close cooperation with the IRS given the perennial financial and other limitations faced by the IRS.2 What neither of these earlier articles addressed, however, was whether the current split of …

Affirmatively Furthering Neighborhood Choice: Vacant Property Strategies And Fair Housing, James J. Kelly Jr.

Journal Articles

When many of us think about fair housing enforcement, scenes involving undercover apartment applicants ferreting out racially biased landlords come to mind. Indeed, fair housing "testers" have been and continue to be an important element of civil rights accountability.' However, implementation of the Fair Housing Act of 1968 has had at least as much to do with increasing the supply of decent, affordable housing options to members of protected groups as with assuring those individuals that they will not be denied a particular housing unit because of the color of their skin or a disability.

This macro aspect of fair …

The Need To Refocus The U.S. Government's Post-9/11 Counter-Terrorist Financing Strategy Directed At Al Qaeda To Target The Funding Of Isis, Jimmy Gurule

Journal Articles

The Islamic State of Iraq and Syria ("ISIS") is the most deadly and well-funded foreign terrorist organization in the world. There are estimates that ISIS has an annual budget of over $2 billion to finance its goal of establishing a caliphate, or Islamic state, governed by its twisted version of Islamic law.1 Flush with funds, the terror group has acquired and controls large swaths of territory in Syria and Iraq, and the threat it poses extends to Jordan, Saudi Arabia, Egypt, Libya, Yemen, Lebanon, and beyond. 2 While depriving ISIS of funding is a central component of the United States …

Subsidiarity's Roots And History: Some Observations, John M. Finnis

Journal Articles

Subsidiarity, i.e., “the principle of subsidiarity,” i.e., “the principle of subsidiary function/responsibility,” i.e., the principle that it is unjust for a higher authority (e.g., the state’s government and law) to usurp the self-governing authority that lower authorities (e.g., in families or other civil associations), acting in the service of their own members (groups and persons), rightly have over those members, is a presumptive and defeasible, not an absolute, principle. But it excludes any general policy or aim of assuming the control or managerial direction of lower groups. Its deepest rationale is the intrinsic desirability of self-direction (not least in cooperatively …

Scope, Mark Mckenna, Mark A. Lemley

Journal Articles

Virtually every significant legal doctrine in IP is either about whether the plaintiff has a valid IP right that the law will recognize (validity); whether the defendant's conduct violates that right (infringement); or whether the defendant is somehow privileged to violate that right (defenses). IP regimes tend to separate doctrines in these three legal categories relatively strictly. They apply different burdens of proof and persuasion to infringement and validity. In many cases they ask different actors to decide one doctrine but not the other. And even where none of that is true, the nature of IP law is to categorize …