Law Commons^™

The New Private Ordering Of Intellectual Property, Lawrence M. Sung

Faculty Scholarship

One consequence of the renewed U.S. Supreme Court interest in patent cases in recent years is an enhanced scrutiny on patent rights generally and, in particular, on the importance of better defining contracts to govern the patent rights among the parties. The Intellectual Property Law Program of the University of Maryland School of Law, in collaboratoin with the Business Law Program and the Journal of Business & Technology Law, convened a symposium on April 18, 2008 to consider the pertinent jurisprudence to inform prudent business practices in managing patent rights by private agreements. This Issue of the Journal includes a …

The Universal Declaration And South African Constitutional Law: A Response To Justice Arthur Chaskalson, Peter E. Quint

Faculty Scholarship

No abstract provided.

In The Wake Of Reinvigorated U.S. Supreme Court Activity In Patent Appeals, Lawrence M. Sung

Faculty Scholarship

No abstract provided.

Multilayered Racism: Courts' Continued Resistance To Colorism Claims, Taunya Lovell Banks

Faculty Scholarship

No abstract provided.

State And Federal Emergency Powers, Michael Greenberger, Arianne Spaccarelli

Faculty Scholarship

As the federal and state response to Hurricane Katrina demonstrated, a failure to understand and utilize legal authorities properly during a disaster can slow response efforts, destroy trust in governments, and exacerbate chaos and civil unrest. This chapter will provide an overview of the statutory and constitutional authority for state and federal response to emergencies, including a description of typical state emergency management statutes, a summary of the major federal statutes related to public health emergency responses, and a discussion of the constitutional limits on federal actions during a public health emergency.

Prosecuting Doctors For Trusting Patients, Deborah Hellman

Faculty Scholarship

In an escalating phase of our country’s war on drugs, doctors treating patients in pain are being prosecuted for drug trafficking under the Controlled Substances Act. While doctors surely can be guilty of drug trafficking when they sell drugs for money, lately some doctors have been prosecuted for violations of a statute that requires knowingly distributing or dispensing controlled substances in an unauthorized manner for simply being willfully blind to the fact that their patients were reselling the drugs. While willful blindness may be an apt substitute for knowledge in the traditional drug courier scenario, doctors in these cases are …

Here Comes The Judge! Gender Distortion On Tv Reality Court Shows, Taunya Lovell Banks

Faculty Scholarship

In the judicial world of television court shows women constitute a majority of the judges and where non-white women and men dominate. In real life most judges are white and male. This essay looks at the gender and racial composition and demeanor of these television reality judges. It asks whether women TV reality judges behave differently from their male counterparts and whether women’s increased visibility as judges on daytime reality court shows reinforces or diminishes traditional negative stereotypes about women, especially non-white women.

Privilege-Wise And Patent (And Trade-Secret)-Foolish?: How The Courts' Misapplication Of The Military And State Secrets Privilege Violates The Constitution And Endangers National Security, Davida H. Isaacs, Robert M. Farley

Faculty Scholarship

It is every inventor's nightmare: a valuable idea, stolen, with no legal recourse. Yet that is precisely what happened in Lucent v. Crater, where the Federal Circuit permitted the Federal Government to defeat the inventors' claims using the military and state secrets privilege. In light of the recent upsurge in the Government's invocation of this privilege, it is time to scrutinize more carefully courts' highly deferential response to its use. There is little question that the executive branch must be able to invoke the privilege in order to ensure that national security is not imperiled by public disclosure of information. …

Alinsky's Prescription: Democracy Alongside Law, Barbara L. Bezdek

Faculty Scholarship

This Article examines the import of the life’s work of Saul Alinsky—arguably the most prominent founder of contemporary organizing—to the content and methodologies of today’s legal education. I review the community organizing theory and practice of Saul Alinsky for its synergies and lessons on two approaches by legal theorists and educators working in law schools today — “community lawyering” and “social justice”education. These approaches embrace the special responsibility of the legal profession for the quality of justice in society[1] by extending the traditional conceptions of lawyers’ relationships with clients in ways that are informed by the insights of community organizers, …

Troubled Waters: Mid-Twentieth Century American Society On "Trial" In The Films Of John Waters, Taunya Lovell Banks

Faculty Scholarship

In this Article Professor Banks argues that what makes many of filmmaker John Waters early films so subversive is his use of the “white-trash” body—people marginalized by and excluded from conventional white America—as countercultural heroes. He uses the white trash body as a surrogate for talk about race and sexuality in the early 1960s. I argue that in many ways Waters’ critiques of mid-twentieth century American society reflect the societal changes that occurred in the last forty years of that century. These societal changes resulted from the civil rights, gay pride, student, anti-war and women’s movements, all of which used …

Research Stories: Video Tales From The Summer Associate Workplace, Susan Herrick

Faculty Scholarship

No abstract provided.

Physicians Who Break The Law, Diane E. Hoffmann

Faculty Scholarship

This paper takes as its starting point a recent article by Prof. Sandra Johnson, Regulating Physician Behavior: Taking Doctors “Bad Law” Claims Seriously. In the article, Johnson focuses on doctors who comply with the law despite their belief that the law is “bad”, i.e., causes them to behave in ways that are harmful to their patients. In Physicians Who Break the Law, I explore cases where physicians break the law claiming that it is “bad”. In this exploration, I focus on two areas of physicians’ lawbreaking: (1) violations of business-related laws, in particular, insurance fraud; and (2) violations of laws …

Recalibrating The Moral Compass: Expanding "Thinking Like A Lawyer" Into "Thinking Like A Leader", Karen H. Rothenberg

Faculty Scholarship

This essay was prepared for the Leadership in Legal Education Symposium IX.

Commentary [On Negligent Infliction Of Emotional Distress], Oscar S. Gray

Faculty Scholarship

These comments question the terminology used in the Third Restatement of Torts for psychological effects, partially on the ground of obsolescence in light of developments in the neurosciences. Instead of the distinction emphasized in the Third Restatement between “physical harm” and “emotional disturbance” (or “distress”), they suggest a distinction between “harm” that constitutes an impairment of functionality, which would be treated as a free-standing basis for liability, like conventional diseases or injuries, and “mere feelings”, which would continue to be compensable in negligence only parasitically. Similarly, the interest protected should be regarded not as an interest in freedom from “disturbance” …

Constitutional Faith And Dynamic Stability: Thoughts On Religion, Constitutions, And Transitions To Democracy, David C. Gray

Faculty Scholarship

This essay, written for the 2009 Constitutional Schmooze, explores the complex role of religion as a source of both stability and instability. Drawing on a broader body of work in transitional justice, this essay argues that religion has an important role to play in the complex web of overlapping associations and oppositions constitutive of a dynamically stable society and further contends that constitutional protections which encourage a diversity of religions provide the best hope of harnessing that potential while limiting the dangers of religion evidenced in numerous cases of mass atrocity.

Brief For Amicus Curiae David A. Super: Supporting Plaintiff-Appellants Urging Reversal, In Howard V. Hawkins (2009)., David A. Super

Faculty Scholarship

The Supreme Court has consistently held that congressional intent governs whether federal statutes are privately enforceable. Where Congress has been silent, a line of cases culminating in Gonzaga Univ. v. Doe, 536 U.S. 273 (2002), prescribes a formula for inferring congressional intent from the structure of a statute. Here, however, Congress has not been silent: the Food and Nutrition Act specifies the amount of retroactive benefits that may be awarded households in “any judicial action arising under this Act” and makes certain records of state agencies “available for review in any action filed by a household to enforce any provision …

60 Years Of The Basic Law And Its Interpretation: An American Perspective, Peter E. Quint

Faculty Scholarship

In commemoration of the 60th anniversary of the adoption of the German Basic Law (Constitution) , the author discusses certain aspects of the Basic Law, in comparison with the Constitution of the United States, and examines important developments in the jurisprudence if the German Constitutional Court interpreting the Basic Law.

A Circumspect Look At Problem-Solving Courts, Richard C. Boldt

Faculty Scholarship

No abstract provided.

Book Review: Fresh Perspectives On The "War On Terror", Katherine Vaughns

Faculty Scholarship

No abstract provided.

Foreword: Our Paradoxical Religion Clauses, Mark A. Graber

Faculty Scholarship

No abstract provided.

Judicial Diversity, Sherrilyn A. Ifill

Faculty Scholarship

No abstract provided.

Violence On The Brain: A Critique Of Neuroscience In Criminal Law, Amanda C. Pustilnik

Faculty Scholarship

Is there such a thing as a criminally "violent brain"? Does it make sense to speak of "the neurobiology of violence" or the "psychopathology of crime"? Is it possible to answer on a physiological level what makes one person engage in criminal violence and another not, under similar circumstances?

This Article first demonstrates parallels between certain current claims about the neurobiology of criminal violence and past movements that were concerned with the law and neuroscience of violence: phrenology, Lombrosian biological criminology, and lobotomy. It then engages in a substantive review and critique of several current claims about the neurological bases …

Woman Of Valor, Sherrilyn A. Ifill

Faculty Scholarship

No abstract provided.

The Costs Of Multiple Gestation Pregnancies In Assisted Reproduction, Urska Velikonja

Faculty Scholarship

The United States, unlike most developed countries, does not regulate its fertility industry. Rather, it vests control over the industry to professional organizations and to market forces. While lack of regulation has produced a vibrant market for fertility services, it has also produced an undesirable consequence: a high rate of multiple gestation pregnancies, including twin pregnancies. This Article summarizes the data on the medical, psychological, and financial costs associated with multiple pregnancies to the parents, the children, and American society. It suggests that the current U.S. regulatory regime has not only failed to address these costs as they surfaced but …

Making Peace And Making Money: Economic Analysis Of The Market For Mediators In Private Practice, Urska Velikonja

Faculty Scholarship

Mediation has grown tremendously in the last three decades, yet only a small number of mediators have been able to benefit financially from its growth. The supply of willing mediators by far exceeds the demand for their services. Mediator trainee overoptimism and the lack of formal barriers to entry result in excess entry in the market for mediators. However, the lack of a formal barrier, but the existence of de facto barriers to entry, such as mediator selection practices and specialization, combined with excessive individual optimism, creates inefficiently high levels of entry. This is socially suboptimal: many aspirant mediators spend …

Providing Interdisciplinary Services To At-Risk Families To Prevent The Placement Of Children In Foster Care, Deborah J. Weimer

Faculty Scholarship

Grandparents need support to take on the responsibility of children whose parents cannot care for them due to drug addiction, mental health issues, HIV illness, or other health problems. Without support and assistance, these families and children are likely to end up enmeshed in the already overburdened child abuse and neglect system. The University of Maryland has created a model program providing social work and legal services to at-risk grandparent families to help avoid the unnecessary placement of these chldren in foster care. In this new program, student attorneys and student social workers worked witn the grandparent client to help …

Saving Facebook, James Grimmelmann

Faculty Scholarship

This Article provides the first comprehensive analysis of the law and policy of privacy on social network sites, using Facebook as its principal example. It explains how Facebook users socialize on the site, why they misunderstand the risks involved, and how their privacy suffers as a result. Facebook offers a socially compelling platform that also facilitates peer-to-peer privacy violations: users harming each others’ privacy interests. These two facts are inextricably linked; people use Facebook with the goal of sharing some information about themselves. Policymakers cannot make Facebook completely safe, but they can help people use it safely.

The Article makes …

Saving Facebook: A Response To Professor Freiwald, James Grimmelmann

Faculty Scholarship

In this brief response to Professor Susan Freiwald's thoughtful comments on my article "Saving Facebook," I address three of Freiwald’s points, all of which go to the heart of my project. I justify my choice of Facebook, ask when user collective action can sufficiently protect privacy, and emphasize that these privacy issues are genuinely peer-to-peer.

The Ethical Visions Of Copyright Law, James Grimmelmann

Faculty Scholarship

This symposium essay explores the imagined ethics of copyright: the ethical stories that people tell to justify, make sense of, and challenge copyright law. Such ethical visions are everywhere in intellectual property discourse, and legal scholarship ought to pay more attention to them. The essay focuses on a deontic vision of reciprocity in the author-audience relationship, a set of linked claims that authors and audiences ought to respect each other and express this respect through voluntary transactions.

Versions of this default ethical vision animate groups as seemingly antagonistic as the music industry, file sharers, free software advocates, and Creative Commons. …

Going Underground: The Ethics Of Advising A Battered Woman Fleeing An Abusive Relationship, Leigh S. Goodmark

Faculty Scholarship

No abstract provided.