Law Commons^™

Patents: Hiding From History, Stephen M. Mcjohn

Suffolk University Law School Faculty Works

This essay considers how patent law doctrine clouds the historical record of technological development. The essay first surveys a recent book that relied heavily on patent records to reexamine acutely the role of intellectual property in economic development, "The Democratization of Invention," by B. Zorina Khan. The essay's second part discusses how patent law today likely distorts patents as primary historical sources. The law encourages an inventor not to accurately disclose her invention and its place in technological development, but rather to submit vague and overbroad invention descriptions and claims. In describing the invention, some case results perversely favor what …

Restoring The Grand Jury, Kevin Washburn

Faculty Scholarship

Though it is enshrined in the Constitution, the grand jury is one of the least respected institutions in American criminal justice today. Scholars regard the grand jury just as doctors regard the appendix: an organic part of our constitutional makeup, but not of much use. While scholars have proposed reforms, most of them seem only loosely related to the fundamental purpose of the grand jury. In an era of plea bargains, the grand jury can serve a crucial role in insuring popular legitimacy in the criminal justice system. In light of the criticism, however, the grand jury seems to be …

Quantifying The Tax Advantage Of Deferred Compensation, Eric D. Chason

Faculty Publications

No abstract provided.

The Perfect Compromise: Bridging The Gap Between At-Will Employment And Just Cause, Nicole Buonocore Porter

Faculty Publications

The debate [between the at-will employment rule and termination for just cause] has been raging for years, but it is not the primary purpose of this Article to rehash the debate over the value of employment at-will. Instead of taking sides, I find fault with both at-will employment and the just cause standard. Accordingly, the main purpose of this Article is to provide the perfect compromise between at-will employment and the just cause standard.

Under this proposed statute (which I have named the "Employment Termination Equity Act (ETEA)"), employers would be free to terminate without the burden of proving just …

Anna Fornalczyk, Biznes A Ochrona Konkurencji [Business And The Protection Of Competition], Oficyna A Wolters Kluwer Business, Kraków 2007, 220 P., Krzysztof Obłój

Yearbook of Antitrust and Regulatory Studies

No abstract provided.

Congressional Responses To Judicial Decisions, Neal Devins

Faculty Publications

No abstract provided.

Objectivity And Subjectivity In Contract Law: A Copernican Response To Professor Shiffrin, Jeffrey M. Lipshaw

Suffolk University Law School Faculty Works

This is a response to Seana Shiffrin's recent and important contribution to the continuing debate whether there is a universal moral or economic truth at the heart of contract law. Her most significant advance toward a general theory of promise and contract is not, however, her analysis of the divergence of morality and contract, but instead her identification of the critical moment at which the interposition of the public in a private matter occurs or is contemplated. This essay carries that theme forward, suggesting that a universal justification for contract law is not possible because the law, by its very …

Moral Intuitions And Organizational Culture, Milton C. Regan

Georgetown Law Faculty Publications and Other Works

Many efforts to understand and respond to a succession of corporate scandals over the last few years have underscored the importance of organizational culture in shaping the behavior of individuals. This focus reflects appreciation that even if an organization has adopted elaborate rules and policies designed to ensure legal compliance and ethical behavior, those pronouncements will be ineffective if other norms and incentives promote contrary conduct. Responding to the call for creating and sustaining an ethical culture in organizations requires appreciating the subtle ways in which various characteristics of an organization may work in tandem or at cross-purposes in shaping …

A Tribute To William P. Murphy: Labor Law Trailblazer And Man Of Unflinching Principle, Paul M. Secunda

Faculty Publications

No abstract provided.

Post-Tenure Review As If It Mattered, Jayne W. Barnard

Faculty Publications

No abstract provided.

No Two-Stepping In The Laboratories: State Deference Standards And Their Implications For Improving The Chevron Doctrine, Michael Pappas

Publications

No abstract provided.

Instead Of Enda, A Course Correction For Title Vii, Jennifer S. Hendricks

Publications

In September 2008, the D.C. federal court issued a landmark decision holding that discrimination against a transgender person was sex discrimination under Title VII. This decision throws into sharp relief the ongoing debates among supporters of the Employment Non-Discrimination Act about whether the compromise on including protection for gender identity claims. Consideration of ENDA in some form will likely be early on the agenda of the next Congress, especially under a Democratic administration likely to support the bill. This essay proposes an alternative to ENDA that would embrace the theoretical connections between sex, gender, and sexual orientation, with important practical …

Autonomy In The Law, Mortimer N.S. Sellers

Books

No abstract provided.

Cooper's Quiet Demise (A Short Response To Professor Strauss), Frederic M. Bloom

Publications

No abstract provided.

State Courts Unbound, Frederic M. Bloom

Publications

We may not think that state courts disobey binding Supreme Court precedent, but occasionally state courts do. In a number of important cases, state courts have actively defied apposite Supreme Court doctrine, and often it is the Court itself that has invited them to.

This Article shows state courts doing the unthinkable: flouting Supreme Court precedent, sometimes at the Court's own behest. The idea of state court defiance may surprise us. It is not in every case, after all, that state courts affirmatively disobey. But rare events still have their lessons, and we should ask how and why they emerge. …

The Wise Researcher: One Library’S Experience Implementing A Federated Search Product, Yumin Jiang, Georgia Briscoe

Publications

No abstract provided.

The Accounting: Habeas Corpus And Enemy Combatants, Emily Calhoun

Publications

The judiciary should impose a heavy burden of justification on the executive when a habeas petitioner challenges the accuracy of facts on which an enemy combatant designation rests. A heavy burden of justification will ensure that the essential institutional purposes of the writ--and legitimate, separated-powers government--are preserved, even during times of national exigency. The institutional purposes of the writ argue for robust judicial review rather than deference to the executive. Moreover, the procedural flexibility traditionally associated with the writ gives the judiciary the tools to ensure that a heavy burden of justification can be imposed.

Interpretive Sovereignty: A Research Agenda, Kristen A. Carpenter

Publications

In federal Indian law, the treaty operates as our foundational legal text. Reflecting centuries-old historical political arrangements between Indian nations and the United States, treaties remain vital legal instruments that decide dozens of legal cases each year. Yet, these treaties--originally drafted in English by the federal government, following negotiations with tribal representatives who usually spoke their own languages--present a number of ambiguities for contemporary courts. The dominant model of treaty interpretation is one in which judges interpret treaties in a manner they they believe to reflect Indians' understanding of treaty terms and, more generally, to promote the interests of Indian …

Walking The Path Of The Law: How Law Graduates Navigate Career Choices And Tolerate Jobs That Fail To Meet Expectations, Deborah J. Cantrell, Elizabeth Levy Paluck, Heather Lord, April Smith

Publications

If one talks to law students about the their career expectations, one is likely to hear a common story: when the student graduates, she plans to go into private practice, or possibly take a government job, or even less probably, take a public interest job. The students think their initial choices of legal jobs set them on a career trajectory that is fairly immutable. However, the students' beliefs may not be based on actual information about how lawyers choose their career paths.

This empirical study of 2800 lawyers who graduated from law school between 1970 and 1999 analyzes whether lawyers …

Real Property And Peoplehood, Kristen A. Carpenter

Publications

This Article proposes a theory of real property and peoplehood in which lands essential to the identity and survival of collective groups are entitled to heightened legal protection. Although many Americans are sympathetic to American Indian tribes and their quest for cultural survival, we remain unable to confront the uncomfortable truth that the very thing Indian peoples need is their land, the same land that the U.S. took from them. This is especially the case with regard to the sacred sites of Indian peoples, whose religions and cultures are inextricably linked to those sites. Federal law permits the United States …

Extraterritoriality, Antitrust, And The Pragmatist Style, Justin Deystone

Publications

In the last decades of the 20th century, David Kennedy and Martti Koskenniemi made the case that the modern structure of international legal argument was characterized by "pragmatism." Taking this idea as its baseline, this Article's central argument is that legal pragmatism embodies a dominant style of contemporary legal reasoning, and that as Kennedy and Koskenniemi might have suggested, it is on display in some of the canonical antitrust decisions having an international dimension. The Article also seeks to show that pragmatism's ostensible triumph is best understood as a contest of three distinctly legal pragmatisms: "eclectic pragmatism," as evidenced in …

Garbage Pails And Puppy Dog Tails: Is That What Katz Is Made Of?, Aya Gruber

Publications

This Article takes the opportunity of the fortieth anniversary of Katz v. U.S. to assess whether the revolutionary case's potential to provide broad and flexible privacy protection to individuals has been realized. Answering this question in a circumspect way, the Article pinpoints the language in Katz that was its eventual undoing and demonstrates how the Katz test has been plagued by two principle problems that have often rendered it more harmful to than protective of privacy. The manipulation problem describes the tendency of conservative courts to define reasonable expectations of privacy as lower than the expectations society actually entertains. The …

Retaliatory Litigation Tactics: The Chilling Effects Of "After-Acquired Evidence", Melissa Hart

Publications

Even a victim of the most egregious discrimination may recover little monetary relief if the defendant discovers, after firing the employee, that she committed some firable offense. Yet the case in which the Supreme Court so held, McKennon v. Nashville Banner Publishing Co., was widely viewed as a victory rather than a defeat for plaintiffs. This surprising perception flowed from the Court's holding that such "after-acquired evidence" of misconduct merely limited remedies but did not completely eliminate plaintiffs' rights to sue for discrimination. Given that McKennon could be portrayed either as a victory for plaintiffs or an unjust denial …

How Do Securities Laws Influence Affect, Happiness, & Trust?, Peter H. Huang

Publications

This Article advocates that securities regulators promulgate rules based upon taking into consideration their impacts upon investors' and others' affect, happiness, and trust. Examples of these impacts are consumer optimism, financial stress, anxiety over how thoroughly securities regulators deliberate over proposed rules, investor confidence in securities disclosures, market exuberance, social moods, and subjective well-being. These variables affect and are affected by traditional financial variables, such as consumer debt, expenditures, and wealth; corporate investment; initial public offerings; and securities market demand, liquidity, prices, supply, and volume. This Article proposes that securities regulators can and should evaluate rules based upon measures of …

Emotional Adaptation And Lawsuit Settlements, Peter H. Huang

Publications

In Hedonic Adaptation and the Settlement of Civil Lawsuits, Professors John Bronsteen, Christopher Buccafusco, and Jonathan Masur note an unexplored aspect of protracted lawsuits: During prolonged litigation tort victims can adapt emotionally to even permanent injuries, and therefore are more likely to settle--and for less--than if their lawsuits proceeded faster. This Response demonstrates that this is a facile application of hedonic adaptation with the following three points. First, people care about more than happiness: Tort victims may sue to seek justice or revenge; emotions in tort litigation can be cultural evaluations; and people are often motivated by identity and …

Authentic Happiness & Meaning At Law Firms, Peter H. Huang, Rick Swedloff

Publications

We advocate that law firms can and should foster authentic happiness and meaning in the professional lives of their associates. Based upon empirical and experimental research in behavioral economics and positive psychology, we consider how law firms can implement policies to promote authentic happiness and meaning in their associates' professional lives. We also believe that law schools can and should help to reduce the anxiety, stress, and unhappiness that individuals feel as law students and help them develop abilities to achieve meaningful careers as law firm associates. We provide a guide as to how law firms and law schools can …

Authentic Happiness, Self-Knowledge And Legal Policy, Peter H. Huang

Publications

This Article analyzes three questions: can, how, and should legal policy help people in their individual quests for authentic happiness. This Article adopts psychologist Martin Seligman's definition of the phrase authentic happiness. This Article provides an introduction to examples of legal policies based upon empirical and experimental research in positive psychology, measures of subjective well-being, and quality of life studies.

American Indians, Climate Change, And Ethics For A Warming World, Sarah Krakoff

Publications

Developing a sense of ourselves that would properly balance history and nature and space and time is a more difficult task than we would suspect and involves a radical reevaluation of the way we look at the world around us. Do we continue to exploit the earth or do we preserve it and preserve life? Whether we are prepared to embark on a painful intellectual journey to discover the parameters of reconciling history and nature is the question of this generation.

The Intriguing Federalist Future Of Reproductive Rights, Scott A. Moss, Douglas M. Raines

Publications

As the decline of Roe v. Wade inspires renewed efforts to restrict federal constitutional abortion rights, the serious shortcomings of abortion rights advocates' strategies for preserving such rights will become increasingly apparent. Continued reliance on Roe is likely to fail with an increasingly unsympathetic Supreme Court. Even abortion rights supporters have begun to criticize the decision for weak reasoning, which is difficult to remedy at this late stage of federal abortion jurisprudence. Moreover, although autonomy and gender equality arguments for abortion rights would improve upon Roe's privacy rationale, such arguments would require abrogating substantial precedent and are, therefore, of limited …

The Chains Of The Constitution And Legal Process In The Library: A Post-Usa Patriot Reauthorization Act Assessment, Susan Nevelow Mart

Publications

Since the Patriot Act was passed in 2001, controversy has raged over nearly every provision. The controversy has been particularly intense over provisions that affect the patrons of libraries. This article follows those Patriot Act provisions that affect libraries, and reviews how they have been interpreted, how the Patriot Reauthorization Acts have changed them, and what government audits and court affidavits reveal about the use and misuse of the Patriot Act. The efforts of librarians and others opposed to the Patriot Act have had an effect, both legislatively and judicially, in changing and challenging the Patriot Act. Because libraries are …