Law Commons^™

One Size Does Not Fit All: A Framework For Tailoring Intellectual Property Rights, Michael W. Carroll

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The United States and its trading partners have adopted cultural and innovation policies under which the government grants one-size-fits-all patents and copyrights to inventors and authors. On a global basis, the reasons for doing so vary, but in the United States granting intellectual property rights has been justified as the principal means of promoting innovation and cultural progress. Until recently, however, few have questioned the wisdom of using such blunt policy instruments to promote progress in a wide range of industries in which the economics of innovation varies considerably.

Provisionally accepting the assumptions of the traditional economic case for intellectual …

Alternative Software Protection In View Of In Re Bilski, Charles Duan, Lauren Katzenellenbogen, James Skelley

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The United States Court of Appeals for the Federal Circuit's (CAFC) en banc decision, In re Bilski, redefined the standard for patenting processes including business methods and computer software. In Bilski, the Federal Circuit departed from the "useful, concrete, and tangible result" test it had established in State Street Bank & Trust Co. v. SignatureFinancialGroup,Inc., which had been the standard for the past ten years. The Federal Circuit returned to a test articulated nearly 40 years ago by the Supreme Court in Gottschalk v. Benson, and clarified that State Street was "never intended to supplant the Supreme Court's test.", Under …

Boumediene’S Quiet Theory: Access To Courts And The Separation Of Powers., Stephen I. Vladeck

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At the core of Justice Kennedy's majority opinion in Boumediene v. Bush are his repeated suggestions that habeas corpus is an integral aspect of the separation of powers, and that, as such, the writ remains relevant even when the individual rights of those who would seek its protections are unclear. And whereas some might view these passages as little more than rhetorical flourishes, it is difficult to understand the crux of Kennedy's analysis - of why the review available to the Guantanamo detainees failed to provide an adequate alternative to habeas corpus - without understanding the significance of his separation-of-powers …

Memorial To Barbara Ringer, Peter Jaszi

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The story goes that in 439 BC the retired consul Cincinnatus was summoned from the plow by the Senate and people of Rome. One more time, he saw the Republic through a time of particular peril, resigning office immediately afterwards to return to his rural retirement - to be transmuted into a timeless emblem of selfless probity. Episodes of this kind are even rarer in the annals of the U.S. civil service than in the Roman history. But I had the good fortune to be a witness to one such - Barbara Ringer's return to the Library of Congress in …

Sexual Politics And Social Change, Darren L. Hutchinson

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The Article examines the impact of social movement activity upon the advancement of GLBT rights. It analyzes the state and local strategy that GLBT social movements utilized to alter the legal status of sexual orientation and sexuality following the Supreme Court’s ruling in Bowers v. Hardwick. Successful advocacy before state and local courts, human rights commissions, and legislatures fundamentally shifted public opinion and laws regarding sexual orientation and sexuality between Bowers and the Supreme Court’s ruling in Lawrence v. Texas. This altered landscape created the “political opportunity” for the Lawrence ruling and made the opinion relatively “safe.”

Currently, GLBT rights …

Managing The Unmanageable: A Brief Accounting Of A Special Master’S Thirty Years Of Experience In Complex Litigation, Paul Rice

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Managing an efficient, but fair, pretrial process in a large and complex case has always been a challenge. With the advent of electronic communications and the corresponding explosion of privilege claims, this challenge has become significantly more difficult. Indeed, it is not uncommon for corporate parties to assert tens of thousands, if not hundreds of thousands, of privilege claims. Furthermore, the resolution of these privilege questions is often compounded by difficult choice of law questions that can have the result of different substantive principles being applied to identical discovery demands originating in different jurisdictions. Additionally, before addressing the increasingly voluminous …

Development And Outcomes Of Investment Treaty Arbitration, Susan Franck

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The legitimacy of investment treaty arbitration is a matter of heated debate. Asserting that arbitration is unfairly tilted toward the developed world, some countries have withdrawn from World Bank dispute resolution bodies or are taking steps to eliminate arbitration. In order to assess whether investment arbitration is the equivalent of tossing a two-headed coin to resolve investment disputes, this article explores the role of development status in arbitration outcome. It first presents descriptive, quantitative research about the developmental background of the presiding arbitrators who exert particular control over the arbitration process. The article then assesses how (1) the development status …

Financial Crisis Containment, Anna Gelpern

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This Article maps financial crisis containment - extraordinary measures to stop the spread of financial distress - as a category of legal and policy choice. I make three claims.

First, containment is distinct from financial regulation, crisis prevention and resolution. Containment is brief; it targets the immediate term. It involves claims of emergency, rule-breaking, time inconsistency and moral hazard. In contrast, regulation, prevention and resolution seek to establish sound incentives for the long term. Second, containment decisions deviate from non-crisis norms in predictable ways, and are consistent across diverse countries and crises. Containment invariably entails three kinds of choices: choices …

Aedpa, Saucier, And The Stronger Case For Rights-First Constitutional Adjudication, Stephen I. Vladeck

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As part of a symposium on new affirmative visions of the judicial role, this essay takes on the Supreme Court's increasing unwillingness to resolve constitutional questions in post-conviction habeas cases under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), as seen in decisions such as Wright v. Van Patten, 128 S. Ct. 743 (2008). In most cases in which AEDPA applies, a petitioner is only eligible for relief if a state court's constitutional error was unreasonable based on prior Supreme Court decisions (and not dicta). As a result, the Court has repeatedly concluded that a state court did …

The Rise Of International Criminal Law: Intended And Unintended Consequences, Kenneth Anderson

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The rise of international criminal law has been one of the remarkable features of international law since 1990. One of the less-explored questions of international criminal law is its social effects, within the international community and the community of public international law, in other parts and activities of international law. In particular, what are the effects of the rise of international criminal law and its emerging system of tribunals on the rest of the laws of armed conflict? What are the effects upon apparently unrelated aspects of humanitarian and human rights law? What are the effects upon other large systems …

Understanding The Federal Tort Claims Act: A Different Metaphor, Paul F. Figley

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When it enacted the Federal Tort Claims Act Congress waived the United States’ sovereign immunity for certain torts of the federal government. That waiver is subject to exclusions, exceptions, and limitations that may seem puzzling or counterintuitive. This essay explains the structure and operation of the Federal Tort Claims Act by comparing it to “a traversable bridge across the moat of sovereign immunity” (a metaphor used by Judge Max Rosenn in a slightly different context). The essay examines why Congress enacted the FTCA, the jurisdictional grant that allows some tort claims but not others, the pre-requisites to bringing suit, the …

This Field Is Our Field: Foreign Players, Domestic Leagues, And The Unlawful Racial Manipulation Of American Sport, N. Jeremi Duru

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Sport is a potent unifying force and a potentially powerful tool in bridging societal divides. As such, the increasing frequency of professional athletes leaving their home nations and continents to access employment opportunities abroad portends positively for greater cultural understanding in our global community. This paper argues, however, that in America’s professional sporting context, internationalization of sport plays an additional, unsavory, role – it serves as a means of manipulating leagues’ racial compositions. Studies conducted during the past twenty years reveal that spectators at professional American sporting contests – a substantial majority of whom are Caucasian – exhibit preferences for …

Patient Negligence: The Unreasonableness Of Relying On Trust, Song Richardson

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This project initiates a conversation about patient negligence and trust in the medical setting and offers a test to determine whether patient negligence should be considered in litigation. The project examines the line at which a physician’s impermissible conduct should become reasonably obvious to a patient and therefore trigger a reasonable response. Absent a reasonable response by patients, this project considers whether comparative negligence attaches. Goodwin and Richardson argue due diligence, an aspect of loyalty, is treated as a value fiduciaries owe their clients, rather than a reasonable step that clients owe themselves.

In this collaboration, the authors imagine and …

Offspring And Bodies: Dependency And Vulnerability In The Constitutional Jurisprudence Of Reproductive Rights, Ann Shalleck

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In this article, the author responds to Sherry Colb’s argument in "To Whom Do We Refer When We Speak of Obligations to “Future Generations”? Reproductive Rights and the Intergenerational Community," (77 GEO. WASH. L. REV. 1582 (2009)). Colb offered a new way to consider reproductive rights by delineating two distinct and not always overlapping interests at stake in giving meaning to and shaping the contours of the rights implicated in reproductive decisions. Through differentiating interests in bodily integrity and offspring selection, Colb disentangled underlying justifications for legal advocacy and judicial decisions and offered an interpretive frame through which to consider …

Article 124, War Crimes, And The Development Of The Rome Statute, Shana Tabak

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No abstract provided.

Whistle...And You've Got An Audience, Amanda Leiter

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One of the questions for discussion today is whether public rights litigation is an effective means of social change. This Article does not attempt an answer but begins to explore a set of issues central to any answer: the extent, types, uses, and potential shortcomings of government whistleblowing. There is considerable sociological and legal literature on government whistleblowing, but little of it addresses the issue from the angle relevant to maximizing the efficacy of public rights litigation. This Article begins to fill that gap. Part I discusses the importance of whistleblowers in the vindication and enforcement of public rights. Part …

Western Europe: Last Holdout In The Worldwide Acceptance Of Clinical Legal Education, Richard J. Wilson

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Clinical legal education has achieved widespread acceptance throughout the world, growing by leaps and bounds during recent decades in countries like Russia and China, and expanding rapidly in other areas of Eastern Europe, Latin America and Africa. It is, arguably, the most significant innovation in legal education since the “invention” of the Socratic-case method in the United States, at the turn of the 20th Century. There is, however, one geographic area where the philosophy and methodology of clinical legal education has been resisted. That area is Continental Western Europe (the UK has some clinics, though not widespread). This article examines …

The Phases And Faces Of The Duke Lacrosse Controversy: A Conversation, Angela J. Davis, James E. Coleman Jr, Michael Gerhardt, K.C. Johnson

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No abstract provided.

Internal Displacement, The Guiding Principles On Internal Displacement, The Principles Normative Status, And The Need For Their Effective Domestic Implementation In Colombia, Robert K. Goldman

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No abstract provided.

Substance Or Illusion - The Dangers Of Imposing A Standing Threshold, Amanda Leiter

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No abstract provided.

Inter-American System, Diego Rodriguez-Pinzon

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No abstract provided.

Why Punctuation Matters; Part One, David Spratt

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No abstract provided.

Grammar Confidential: Dispelling Common Writing Myths, David Spratt

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No abstract provided.

No Enclaves Of Totalitarianism: The Triumph And Unrealized Promise Of The Tinker Decision, Jamin B. Raskin

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The Supreme Court's decision in Tinker v. Des Moines Independent Community School District forty years ago did for the ideal of expressive freedom in America's public schools what Brown v. Board of Education did for the ideal of racial equality. It made a core value of the Bill of Rights spring to life for young people facing authoritarian treatment at the hands of adult officials running their school systems. By privileging the right of students to engage in passionate political communication over the school's interest in maintaining discipline or the community’s interest in maintaining pro-war consensus, the Tinker decision was …

A New System Of Preventative Detention - Let's Take A Deep Breath, Jennifer Daskal

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Some have argued that the detention center at Guantanamo Bay cannot be closed until the U.S. passes new preventive detention laws that would allow it to detain those who cannot be tried but are considered too dangerous to release. This article rejects these claims, concluding that the existing criminal justice system can adequately deal with those who the U.S. should be seeking to detain. The article also warns of the costs of trying to set up an entirely new system of detention without charge. The article cautions that such a system will negate many of the reputational gains associated with …

Hein And Goldilocks Principle, Maya Manian

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Two weeks into his presidency, George W. Bush issued an executive order establishing the White House Office of Faith-Based and Community Initiatives (OFBCI) to encourage religious groups to provide federally funded social services. In particular, the OFBCI and its corresponding centers in various executive agencies sought to help religious organizations obtain federal grant monies by providing technical assistance to help them navigate the often byzantine bureaucracy surrounding federal grant-making. The OFBCI achieved its goal of increasing federal grants to religious organizations, in part by funding workshops and conferences designed to aid religious groups pursuing federal financing. Concerned that the Bush …

Racial Exhaustion, Darren Hutchinson

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This Article examines historical and contemporary race discourse contained in political and juridical sources in order to illustrate how opponents to racial egalitarian measures have frequently contested such policies on the grounds that they are redundant, unnecessary, or too burdensome or taxing. Racial exhaustion rhetoric has operated as a persistent discursive instrument utilized to contest claims of racial injustice and to resist the enactment of racial egalitarian legislation. Racial exhaustion rhetoric has enjoyed particular force during and immediately following periods of mass political mobilization by antiracist social movements and institutional political actors, and it retains potency in contemporary racial discourse. …

Immigrant Labor And The Occupational Safety & Health Regime; Part I: A New Vision For Workplace Regulation, Jayesh Rathod

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This article is the first in a series of three articles that together form a scholarly project that unearths the causes of recent trends in immigrant worker fatalities and injuries in the U.S., and presents recommendations for reversing it. The article examines how the history, structure, and operations of the federal Occupational Safety and Health Administration (OSHA) have, at times, obscured the workplace safety concerns of immigrant workers and have left these workers with no meaningful voice in the regulatory process. The article presents a set of regulatory imperatives to guide OSHA’s future work with respect to immigrant workers. These …

The Women's Protocol To The African Charter And Sexual Violence In The Context Of Armed Conflict Or Other Mass Atrocity, Susana Sacouto, Katherine A. Cleary

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No abstract provided.

The Problem Of Jurisdictional Non-Precedent, Stephen I. Vladeck

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Most critiques of the Supreme Court's June 2008 decision in Boumediene v. Bush (including Justice Scalia's dissent in the same) have at their core the argument that Justice Kennedy's majority opinion is inconsistent with prior precedent, specifically the Supreme Court's 1950 decision in Johnson v. Eisentrager. A closer read of Eisentrager, though, reveals a surprisingly unclear opinion by Justice Jackson, that seems to go out of its way to reach various issues on the merits even after suggesting that the federal courts lacked jurisdiction over habeas petitions filed by 22 Germans convicted of war crimes by a U.S. military tribunal …