Law Commons^™

Assessing Law Students As Reflective Practitioners, Margaret Reuter

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We begin with two premises. One, legal educators, particularly clinical faculty who teach experiential courses, aim for their students to become reflective practitioners. Two, despite the highly personal nature of reflection, law faculty can assess law students’ ability to reflect meaningfully by reviewing and evaluating their reflective journals and essays. This is a story about the three authors of this essay: the genesis of our teaching techniques in reflective practice; how we discovered our similar approaches to assessing reflective practice; and how we have embarked on a project to discover whether a rubric we developed collectively can become the basis …

The Doctor Requirement: Griswold, Privacy, And At-Home Reproductive Care, Yvonne F. Lindgren

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Supreme Court privacy jurisprudence has traditionally offered greater protection to activities when exercised within the home. This is true in common law as well as across a broad range of constitutional claims. For example, common law privacy identifies the home as a location of solitude and repose, often conceptualized as the “right to be let alone.” Speech, or the right to be free of unwanted messages, is enhanced when the claimant is within the confines of her or his home. Fourth Amendment protections against search and seizure and the notion of the reasonable expectation of privacy are enhanced when the …

I Know What You Did Last Summer: A User’S Guide For Internet Investigations, Sean O'Brien, Quinn O'Brien

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Coauthored with licensed private investigator Quinn O'Brien, this article provides important ethical considerations, practice tips, and technical advice about the preparation, execution, preservation, and follow-up investigation of subjects using the Internet.

Civil Rules Interpretive Theory, Lumen N. Mulligan, Glen Staszewski

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We claim that the proper method of interpreting the Federal Rules of Civil Procedure — civil rules interpretive theory — should be recognized as a distinct field of scholarly inquiry and judicial practice. Fundamentally, the Rules are not statutes. Yet the theories of statutory interpretation that are typically imported into Rules cases by the courts rely upon a principle of legislative supremacy that is inapplicable in this context. That said, we recognize the Rules as authoritative law that is generally amenable to a form of jurisprudential purposivism. Working from this newly elucidated normative foundation, we reject the Rules-as-statutes interpretive approach …

The Prescription Drug Pricing Moment: Using Public Health Analysis To Clarify The Fair Competition Debate On Prescription Drug Pricing And Consumer Welfare, Ann Marie Marciarille

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Fair competition law and public health law talk past each other when discussing pharmaceutical pricing and distribution. The former cannot agree on the relevant definition of consumer welfare. The latter does not fully comprehend the highly complex but inherently collective nature of pharmaceutical drug acquisition in the United States. This essay proposes to inject public health discourse into this debate to enrich it, focus it, and render it more accessible to those who must live by its outcome.

What Is Meant By Freedom?, Paul D. Callister

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Freedom is overlooked as a legal and social concept, with few attempts to define it. Lon Fuller articulated the critical question about freedom: “How can the freedom of human beings be affected or advanced by social arrangement, that is by laws, customs, institutions, or other forms of social order that can be changed or preserved by purposive human actions?” Freedom needs to be defined in the context of this question — as an ideal to be advanced by our social institutions, laws, and customs. The article first begins with a framework for freedom established by Lon Fuller in a neglected …

Who Is Parent And Who Is Child In Same-Sex Family? - Legislative And Judicial Issues For Lgbt Families Post-Separation, Part Ii: The U.S. Perspective, Mary Kay Kisthardt, Richard A. Roane

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No abstract provided.

The Power Of The Public Defender Experience: Learning By Fighting For The Incarcerated And Poor, Patrick C. Brayer

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This Essay discusses how public defender apprenticeships impact law students and help mold their future careers. Brayer discusses the tangible advantages that the apprenticeship imparts on students as well as the transferable skills that students gain. Brayer then analyzes the internal and professional growth of students that participate in this apprenticeship. Brayer situates this growth within the context of Chief Justice John Marshall’s own similar experience, arguing how the public defender experience focuses and matures aspiring lawyers.

Cities, Inclusion And Exactions, Audrey G. Mcfarlane, Randall K. Johnson

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Cities across the country are adapting mandatory inclusionary zoning. Yet, consensus about the appropriate constitutional standard to measure the propriety of mandatory inclusionary zoning has not been fully reached. Under one doctrinal lens, inclusionary zoning is a valid land use regulation adopted to ensure a proper balance of housing within the jurisdiction. Under another doctrinal lens, challengers seek to characterize inclusionary zoning as an exaction, a discretionary condition subject to a heightened standard of review addressing the specific negative impact caused by an individual project on the supply of affordable housing in a jurisdiction. Drawing from the experience of Baltimore, …

How The United States Postal Service (Usps) Could Encourage More Local Economic Development, Randall K. Johnson

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No abstract provided.

The Use And Preservation Of Grasslands: The Logic Of Hard Lessons, Irma S. Russell

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Planning for preservation of grasslands and all environmental resources is essential for the long-term well-being of the environment and humans. The interrelated nature of all resources of the physical world requires sustainable practices to maintain productivity and life. Recognition that the often-overlooked resource of grasslands is foundational to economic, environmental, and political stability of the region leads to the conclusion that planning for the long-range health of grasslands is essential to the economy as well as to the environment. Part II of this article explores the history of grasslands of the Midwest. It identifies the historical mismanagement of grasslands and …

The 2016-17 Survey Of Applied Legal Education, Robert R. Kuehn, David A. Santacroce, Margaret E. Reuter, Sue Schechter

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This report presents the results of the 2016-17 Center for the Study of Applied Legal Education (CSALE) Survey of Applied Legal Education. The survey was composed of four parts – a Master Survey directed to each ABA accredited U.S. law school; Law Clinics and Field Placement Course Sub-Surveys distributed by the schools to the persons responsible for each distinct law clinic or field placement course at the school; and a Faculty Sub-Survey distributed by the schools to each person teaching in a law clinic or field placement course. Ninety-four percent of law schools and over 1,100 clinical teachers participated in …

A Biotechnology-Centric Look At Fee Shifting In Patent Litigation Post-Octane Fitness, Christopher M. Holman

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The U.S. Supreme Court’s 2014 decision in Limelight Networks v. Akamai Technologies decision (Akamai III), in conjunction with the Federal Circuit’s stance on divided infringement claims, effectively undermined the value of method claims, particularly in the realm of pharmaceuticals, diagnostics, and other biotechnology related innovation, by limiting the ability of patentees to establish liability in cases where steps of the claimed method are performed by multiple parties. On remand, the en banc Federal Circuit in Akamai Technologies v. Limelight Networks (Akamai IV) sought to address the problem by expanding the definition of direct infringement under 271(a) to encompass more scenarios …

Tax Savings With Income-Based Charitable Requests, Christopher R. Hoyt

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No abstract provided.

Allen V. Bryers: The Missouri Supreme Court's 2016 Decision Adds Clarity (And Confusion) To Insurers' Duty And Right To Defend Their Insureds, Jeffrey E. Thomas

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In a previous paper, I suggested that the Missouri Supreme Court had adopted a forfeiture penalty for insurers that breached the duty to defend. This paper revises that position based on the December 2016 Missouri Supreme Court decision of Allen v. Bryers in which the court held that to recover damages beyond the applicable liability insurance policy limits, the insured (or an assignee) would have to demonstrate the insurer had acted in bad faith. However, the court confirmed a forfeiture approach up to the liability insurance policy limits. Where an insurer breaches its the duty to defend in a liability …

Extra-Contractual Liability In The Restatement Of The Law, Liability Insurance: Breach Of The Duty To Settle Or Bad Faith?, Jeffrey E. Thomas

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This paper focuses on the Restatement’s treatment of an insurer’s duty to settle and the duty of an insurer to act in good faith in handling liability claims. The duty to settle is framed as an objective “duty to the insured to make reasonable settlement decisions.” At the same time, however, a separate claim is retained for an insurer’s “bad faith” breach of its duties (including the duty to settle). Further, a subjective element is adopted for the bad faith standard. To be liable for “bad faith,” an insurer must act “without a reasonable basis for its conduct” and must …

Caught Between A Rock And A Hard Place: How Limelight Compounds The Challenges Facing Biotechnology Innovators After Mayo And Myriad, Christopher M. Holman

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The Supreme Court’s decision in Limelight Networks v. Akamai Technologies limiting the ability of patentees to establish liability in cases of divided infringement effectively undermines the value of method claims. The combined impact of Limelight and the Court’s previous patent eligibility decisions in Mayo and Myriad will be particularly felt in the area of personalized medicine and diagnostics, but could also threaten a broad swath of other important innovations in biotechnology and pharmaceuticals. Some of the potentially dire consequences of Limelight for some patentees, particularly in the biotechnology and pharma sectors, are reviewed in this article. But there could be …

Child Support: An Annotated Bibliography, 2010-2016, Nancy Levit

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No abstract provided.

The Supreme Court’S Devaluation Of U.S. Patents, Christopher M. Holman

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In a span of three weeks during the spring of 2017, the U.S. Supreme Court issued three patent decisions, bringing the total number of patent decisions for the 2016-2017 term to six. This means that the October 2016 term ties the previous record of six patent decisions in the October 2014 term. This represents a tremendous increase in the number of patent decisions compared to earlier times, and particularly the early days of the Federal Circuit. For reference, during the first quarter of a century the Federal Circuit was in existence, the Supreme Court heard on average less than one …

In Defense Of Secondary Pharmaceutical Patents: Response To The Un's Guidelines For Pharmaceutical Patent Examination, Christopher M. Holman

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In 2015 the United Nations Development Programme issued a document entitled Guidelines for Pharmaceutical Patent Examination: Examining Pharmaceutical Patents from a Public Health Perspective (the “Guidelines”). The heart of the Guidelines is a category-by-category examination of eight types of “secondary” pharmaceutical patent claims: Markush claims; selection patents; polymorphs; enantiomers; salts; ethers and esters; compositions; doses; combinations; prodrugs; metabolites; and new medical uses. The Guidelines advise patent offices to apply heightened patentability requirements to these claims in a manner that would effectively deny patent protection to important pharmaceutical innovations currently afforded patent protection. In particular, the Guidelines postulate that many forms …

The Death Of The Firm, June Carbone, Nancy Levit

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This Article maintains that the decision in Burwell v. Hobby Lobby, which referred to the corporation as a legal fiction designed to serve the interests of the people behind it, signals the “death of the firm” as a unit of legal analysis in which business entities are treated as more than the sum of their parts and appropriate partners to advance not just commercial, but public ends. The Hobby Lobby reference to the firm as a fiction is a product of a decades-long shift in the treatment of corporations. This shift reflects both an ideological embrace of the free-market-oriented “agency-cost” …

The Ozark National Scenic Riverways And The Sagebrush Rebellion In Missouri, John W. Ragsdale Jr

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This article focuses on the back country-the Ozark National Scenic Riverways (ONSR) and the community around and with the rivers. It begins historically, tracing the origins and courses of stable-state, subsistence agricultural societies in the rugged hills overlooking the Current and Jacks Fork Rivers. It shows that such societies, though autonomous, are vulnerable to outside aggression. War, raiders, in­dustrial timbermen, and modern technology can shatter the environ­mental balance. Dam builders, government land managers, and tour­ism can erode internal sovereignty, custom, and self-esteem. These forces befell the Ozark highlands around the ONSR.

Out of the breakdown of land and economy, and …

Benefits Of The U.S. Program For Terrorism Insurance From A Comparative Perspective, Jeffrey E. Thomas

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This article summarizes the U.S. program for terrorism insurance and outlines its advantages as compared to similar programs in other developed countries. The program, while similar to reinsurance, does not require participants to pay premiums but instead uses an ex post recoupment mechanism. Consequently, it is generally referred to as a Federal “backstop.” This approach requires less capital investment and makes “pricing” more accurate than a reinsurance approach. The program also requires insurers to maintain significant amounts of exposure through insurer deductibles and copayments, which creates market demand for the development of terrorism reinsurance in the private market. The current …

A Culture Of Silence: Exploring The Impact Of The Historically Contentious Relationship Between African-Americans And The Police, Mikah K. Thompson

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The relationship between African-Americans and the police has traditionally been focused on authority, control, and the enforcement of laws we now acknowledge were racially discriminatory. This historical relationship, when combined with a modern-day narrative that the police disproportionately stop, arrest, and utilize deadly force against African-Americans, has resulted in pervasive, inter-generational fear and distrust of the police. Most African-Americans view police officers not as the heroic protectors they can call upon when in need of help or the hard-hitting investigators they would trust to look into a family member’s murder. Instead, many African-Americans believe police officers have bought into the …

Fda’S Efforts To Tame The 'Wild West' Of Regenerative Medicine, Christopher M. Holman

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Stem cell-based regenerative therapies hold the potential to address a host of health concerns, particularly congenital, age-related, and trauma-induced injuries, and diseases involving organ and tissue degeneration, conditions that have proven refractory to conventional drug-based approaches. For the time being, however, there is little in the way of solid evidence supporting the safety and efficacy of most cell-based therapeutic approaches (with the notable exception of hematopoietic stem cells used to treat diseases of the blood and immune system). This Holman Report begins with an overview of the current uncertain regulatory status of regenerative medicine in the U.S., including several draft …

Charting The Contours Of Copyright Regime Optimized For Engineered Genetic Code, Christopher M. Holman

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There is a growing disconnect between the traditional patent-centric approach to protecting biotechnological innovation and the emerging intellectual property imperatives of “synthetic biology,” a promising new manifestation of biotechnology that enables the design and construction of artificial biological pathways, organisms or devices, as well as the redesign of existing natural biological systems. As explained in previous articles, one way to deal with this disconnect would be to expand the scope of copyrightable subject matter to encompass engineered genetic sequences, much in the way that copyright was expanded in the 1970s and 1980s to include computer programs. The present article expands …

Eli Lilly V. Teva: Generic Companies Infringe Under Akamai Iv In Case Of Divided Infringement, Christopher M. Holman

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The U.S. Supreme Court’s 2014 decision in Limelight Networks v. Akamai Technologies decision (Akamai III), in conjunction with the Federal Circuit’s stance on divided infringement claims, effectively undermined the value of method claims, particularly in the realm of pharmaceuticals, diagnostics, and other biotechnology related innovation, by limiting the ability of patentees to establish liability in cases where steps of the claimed method are performed by multiple parties. On remand, the en banc Federal Circuit in Akamai Technologies v. Limelight Networks (Akamai IV) sought to address the problem by expanding the definition of direct infringement under 271(a) to encompass more scenarios …