Law Commons^™

Vol. Ix, Tab 46 - Ex. 37 - Expert Report Of Dr. Kent D. Van Liere, Kent Van Liere

Rosetta Stone v. Google (Joint Appendix)

Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?

Why Legal Positivism?, Brian Leiter

Public Law and Legal Theory Working Papers

No abstract provided.

Living By The Initiative And Dying By The Initiative, Steve R. Johnson

Scholarly Publications

A significant fiscal development in recent decades in many states has been revision of tax laws and policy not by legislatures but by voters through the initiative process. Initiatives often have been used to restrain the growth of taxes and spending, and to that extent the owners of wealth, property, and income have benefitted from initiatives. Among the many examples of controversial and important state tax and spending initiatives, one may think of the Taxpayer Bill of Rights in Colorado, the supermajority requirement for tax increases in Nevada, and of course Proposition 13 in California.

However, that gate swings both …

Alimony Treatment For A Single Payment, Douglas A. Kahn

Articles

Before 1942 alimony paid to a former spouse was not included in the spouse’s gross income. In 1942 Congress adopted the antecedent to section 71. Although an alimony recipient must recognize gross income, section 215 provides the payer with a nonitemized deduction for the payment. Therefore, the alimony tax provisions provide a congressionally approved income-splitting arrangement which can benefit the parties by shifting income from a high-bracket taxpayer to one in a lower tax bracket. The parties can divide the resulting savings between them by altering the amount paid to the former spouse.

The Ecological Advantages Of Nuclear Power, Fred P. Bosselman

All Faculty Scholarship

Major electric utilities are deciding whether to build nuclear power plants. How will their decision affect ecological processes and systems, both in the United States and globally? The article makes three arguments: (1) if nuclear power plants are not built, the gap will be filled by more coal-fired power plants; (2) the impact of coal-fired power plants on ecological processes and systems is likely to be increasingly disastrous; and (3) nuclear power’s ecological impacts are likely to be neutral or even positive.

December 13, 2009: Time To Buy An American Car, Bruce Ledewitz

Hallowed Secularism

Blog post, “Time to Buy an American Car“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Home Foreclosures: Will Voluntary Mortgage Modification Help Families Save Their Homes? Part Ii? : Hearing Before The H. Comm. On The Judiciary Subcomm. On Commercial And Administrative Law, 111th Cong., Dec. 11, 2009 (Statement Of Associate Professor Adam J. Levitin, Geo. U. L. Center), Adam J. Levitin

Testimony Before Congress

The results to date from MHAP are deeply disappointing. Even the most optimistic view of HAMP and HARP’s potential would now project the programs as having only a minor impact on the foreclosure crisis. Until and unless the problems of unemployment; negative equity, and servicer capacity, incentives, and contract restrictions are addressed, we are unlikely to see noticeably different results. These issues cannot be addressed within the current structure of HAMP.

Unfortunately, none of the solutions for foreclosures due to unemployment are particularly satisfying, and without addressing unemployment, foreclosures will remain at elevated levels. Bankruptcy presents possible solutions to negative …

No Free Lunch? Current Challenges Facing The National School Lunch And School Breakfast Programs, Eileen Salinsky

National Health Policy Forum

This background paper describes important characteristics of the National School Lunch Program and the School Breakfast Program, reviews U.S. Department of Agriculture rules regarding the nutritional content of school meals, and examines compliance with current nutrition standards. It also considers the dietary status and obesity risk of meal program participants, discusses proposed improvements to nutritional standards and meal requirements, and highlights key legislative issues.

Got Junk? The Federal Role In Regulating “Competitive” Foods, Eileen Salinsky

National Health Policy Forum

A wide variety of food and beverage items are available in schools in addition to the school meals provided through the National School Lunch Program and School Breakfast Program. A long-standing source of controversy, the need for stronger federal restrictions on foods that compete with school meals is again under debate. This issue brief examines the availability and consumption of competitive foods, explores the regulation of these foods at the federal level, considers trends in state and local restrictions, and summarizes perceived barriers to improving the nutritional quality of competitive food options.

Smes, Open Innovation And Ip Management: Advancing Global Development, Stanley P. Kowalski

Law Faculty Scholarship

[Excerpt] Micro-Small-Medium Enterprises (abbreviated herein henceforth as “SMEs”) are global drivers of technological innovation and economic development. Perhaps their importance has been somewhat eclipsed by the mega-multinational corporate entities. However, whereas the corporations might be conceptualized as towering sequoia trees, SMEs represent the deep, broad, fertile forest floor that nourishes, sustains and regenerates the global economic ecosystem.

[. . .]

Broadly recognized as engines of economic and global development, SMEs account for a substantial proportion of entrepreneurial activity in both industrialized and developing countries. Indeed, their role as dynamos for technological and economic progress in developing countries is critical and …

December 10. 2009: The New Weirdness, Bruce Ledewitz

Hallowed Secularism

Blog post, “The New Weirdness“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Kiyemba V. Obama: Brief Of Amici Curiae Law Professors In Support Of Petitioners, Reuven S. Avi-Yonah

Appellate Briefs

Amici curiae are the immigration and constitutional law professors whose individual names appear in the Appendix to this Brief. Amici have expertise in the constitutional law of the United States relating to immigration and due process, as well as the statutes and rules governing entry, admission, detention and parole of non-citizens in the United States. With the consent of the parties, we offer our views on the historical and contemporary meaning of several major decisions of this Court, including Shaughnessy v. United States ex rel. Mezei ("Mezei"), 345 U.S. 206 (1953), Zadvydas v. Davis, 533 U.S. 678 …

Carr V. United States: Brief Of Law Professors As Amici Curiae In Support Of Petitioner, J. J. Prescott

Appellate Briefs

Amici curiae are law professors who specialize in constitutional law, substantive criminal law, and criminal procedure. As law professors, amici have a particular interest in ensuring that the Ex Post Facto Clause of Article I of the United States Constitution is enforced in a manner consistent with its core historic goals and principles. The judgment of the U.S. Court of Appeals for the Seventh Circuit violated these goals and principles, and it prescribed a peculiar new test for application of the Clause that significantly deviates from this Court's settled jurisprudence.

In this brief, amici explore the critical structural role of …

Testimony On H.R. 1924, The Tribal Law And Order Act Of 2009 Before The Subcommittee On Crime, Terrorism And Homeland Security United States House Of Representatives, 111th Congress, 1st Session (December 10, 2009), Barbara L. Creel

Faculty Scholarship

Professor Creel testifies that incarceration alone cannot address the problem of crime in Indian Country and advocates for additional funding and greater access to effective substance abuse treatment programs, education and job training, and culturally-based re-entry programs. Creel's testimony also emphasizes that Native American defendants in tribal court should be afforded the right to counsel, including the right of court appointed counsel, and due process of law. Tribal Law and Order Act 2009: Hearing on H.R. 1924 Before the Subcomm. on Crime, Terrorism and Homeland Security, 111th Cong. (2009) (statement of Barbara Creel, Assistant Professor of Law, University of New …

Summary Of Fields V. State, 125 Nev. Adv. Op. No. 57, Kimberly Duque

Nevada Supreme Court Summaries

Whether the district court abused its discretion in admitting prior bad act evidence because (1) it did not fall within the common-plan-or-scheme exception or because (2) its probative value was substantially outweighed by the danger of unfair prejudice.

Summary Of Thompson V. State, 124 Nev. Adv. Op. 59, Stephanie S. Buntin

Nevada Supreme Court Summaries

Appeal from a judgment of conviction by jury of conspiracy to commit a crime, burglary, robbery, first-degree kidnapping, and attempted grand larceny auto.

Summary Of Fields V. State,125 Nev. Adv. Op. No. 36, John F. Burns

Nevada Supreme Court Summaries

This case is an appeal from the Fourth Judicial District Court judgment of conviction of first-degree murder and conspiracy to commit murder. The appellant asserts error in admitting prior bad act evidence, error in excluding witness testimony as inadmissible extrinsic evidence, error in admitting telephone conversations subject to martial privilege, error in instructing the jury on specific intent, and improper argument by the prosecutor in closing argument.

Comments On Expanding Civic Participation In Voting By Expanded Use Of The Internet, Candice Hoke

Law Faculty Presentations and Testimony

Hoke's comments to the FCC on expanding civic participation in voting by expanded use of the Internet. Hoke recommends that the FCC not become involved in election regulatory issues concerning the Internet, but will support a different federal regulatory agency with national security and technical-cybersecurity expertise receiving primary jurisdiction over election cybersecurity.

Appeal No. 0816: Ohio Valley Energy Systems V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Order 2009-46

December 8, 2009: Are Religious Politics “Undemocratic”?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Are Religious Politics “Undemocratic”?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

A Potent Federal Prosecutorial Tool: Weyhrauch V. United States, James T. Van Strander

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

The Lodestar Ranger: Calculating Attorneys’ Fee Awards In Perdue V. Kenny A., Rebecca Friedman

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

December 5, 2009: Charles Taylor And The Future Of Secularism, Bruce Ledewitz

Hallowed Secularism

Blog post, “Charles Taylor and the Future of Secularism“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Policing The Good Guys: Regulation Of The Charitable Sector Through A Federal Charity Oversight Board, Terri Lynn Helge

Faculty Scholarship

Recently, public confidence in the charitable sector has eroded due to a barrage of media reports on scandals and abuses. The principal parties charged with regulation of the charitable sector, the Internal Revenue Service and state attorneys general, are saddled with bureaucratic constraints that make it difficult to enforce the laws governing the fiduciary responsibilities of charity managers. Substantial reform in the regulation of charitable organizations is necessary to curb the reported abuses that have undermined confidence in the charitable sector.

Some advocate expanding private regulation of the charitable sector to improve enforcement of the fiduciary responsibilities of charitable managers. …

Washington Pension System Review, H. Allan Hunt, Peter S. Barth, Heather Grob, Henry George Harder, Michael Silverstein

Testimonies

No abstract provided.

The International Trade Commission: Potential Bias, Hold-Up, And The Need For Reform, William Dolan

Duke Law & Technology Review

The International Trade Commission (ITC) is an alternate venue for holders of U.S. patents to pursue litigation against infringing products produced abroad and imported to the United States. Because the ITC may only grant injunctive relief, it has awarded injunctions in situations where there may have been better and more efficient remedies to the infringement available through litigation in federal district court. The increased likelihood of injunctive relief bolsters the position of patent holders against a wide range of producers in royalty negotiations and can harm the end consumers through a process known as "patent hold-up." There are currently sweeping …

You’Ve Got Mail: Harassing Emails And The First Amendment In State V. Drahota, Daniel J. Hassing

Nebraska Law Bulletin (Selected Issues)

Currently pending before the Nebraska Supreme Court is a case that seeks to balance two very important rights–the right to be left alone and the right to free speech. This indeed requires a delicate balance. On one hand, an error in one direction will force Nebraskans to endure demeaning, harassing, and offensive speech, even in their own home. But on the other hand, an error in the other direction will impede free speech, one of our society’s most cherished rights.

This commentary seeks to help the court find the right balance when it decides State v. Drahota, a case in …

Market Definition, Jonathan Baker, Lawrence White, Eduardo Perez Motta, Joseph Simons

Presentations

The Department of Justice and the Federal Trade Commission (FTC) solicited public comments and held joint public workshops to explore the possibility of updating the Horizontal Merger Guidelines that are used by both agencies to evaluate the potential competitive effects of mergers and acquistions. The goal of the workshops was to determine whether the Horizontal Merger Guidelines accurately reflect the current practice of merger review at the Department and the FTC as well as to take into account legal and economic developments that have occurred since the last significant Guidelines revision in 1992.

Summary Of Ouanbengboune V. State, 125 Nev. Adv. Op. No. 56, Ammon Francom

Nevada Supreme Court Summaries

An appeal from an Eighth Judicial District Court judgment of conviction, pursuant to a jury verdict, of first-degree murder with the use of a deadly weapon and robbery with the use of a deadly weapon.

The Role Of Ombudsmen In Assuring Quality For Residents Of Long-Term Care Facilities: Straining To Make Ends Meet, Carol O'Shaughnessy

National Health Policy Forum

Assuring quality of care for residents in long-term care facilities has been a serious and continuing concern of policymakers for decades. The Older Americans Act’s long-term care ombudsman program is a consumer advocacy model intended to improve quality of care by helping the 2.5 million residents of almost 67,000 nursing and other residential care facilities resolve complaints about their care and protect their rights. Despite broad recognition of its value in assisting residents and its efforts to complement federal and state oversight of long-term care facilities, some observers are concerned about the program’s ability to meet its legislative mandates. Limited …