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2012

Faculty Publications

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Articles 1 - 30 of 302

Full-Text Articles in Law

Redlined Text Of The Leahy-Smith America Invents Act (Aia) And Unrelated Sections Of The Patent Act Pending Enactment Of H.R. 6621, Brian J. Love Dec 2012

Redlined Text Of The Leahy-Smith America Invents Act (Aia) And Unrelated Sections Of The Patent Act Pending Enactment Of H.R. 6621, Brian J. Love

Faculty Publications

No abstract provided.


Patent Assertion Entities, Colleen Chien Dec 2012

Patent Assertion Entities, Colleen Chien

Faculty Publications

The DOJ and FTC held a workshop on patent assertion entities on Dec 10 2012. This talk gives an overview of the economics, policy of patent assertion entities drawing upon previous and new empirical work. Using pathbreaking, disruptive techniques and capturing economies of scale, PAEs drive down the cost of patent enforcement. PAEs brought 61% of all patent litigations in 2012, representing fewer defendants than in 2011, because of changes in the patent law. 76% of PAE defendants were sued by a PAE that sued more than 15 defendants, and 61% were sued by a PAE that had brought 8 …


The Age Of Marital Capacity: Reconsidering Civil Recognition Of Adolescent Marriage, Vivian E. Hamilton Dec 2012

The Age Of Marital Capacity: Reconsidering Civil Recognition Of Adolescent Marriage, Vivian E. Hamilton

Faculty Publications

Age at marriage has for decades been the strongest and most unequivocal predictor of marital failure. The likelihood of divorce nears eighty percent for those who marry in mid-adolescence, then drops steadily. Delaying marriage until the mid-twenties reduces one’s likelihood of divorce to thirty percent. Women who marry at age twenty-one or younger, moreover – and one in ten U.S. women do – experience worse mental and physical health, attain less education, and earn lower wages than those who marry later. Post-divorce, they and their children tend to endure even greater economic deprivation and instability than do never-married mothers, who …


Inside Voices: Protecting The Student-Critic In Public Schools, Josie F. Brown Dec 2012

Inside Voices: Protecting The Student-Critic In Public Schools, Josie F. Brown

Faculty Publications

First Amendment doctrine acknowledges the constructive potential of citizens’ criticism of public officials and governmental policies by offering such speech vigilant protection. However, when students speak out about perceived injustice or dysfunction in their public schools, teachers and administrators too often react by squelching and even punishing student-critics. To counteract school officials’ reflexively repressive responses to student protest and petition activities, this Article explains why the faithful performance of public schools’ responsibility to prepare students for constitutional citizenship demands the adoption of a more receptive and respectful attitude toward student dissent. After documenting how both educators and courts have mistakenly …


Civil Rights, Charter Schools, And Lessons To Be Learned, Derek W. Black Dec 2012

Civil Rights, Charter Schools, And Lessons To Be Learned, Derek W. Black

Faculty Publications

Two major structural shifts have occurred in education reform in the past two decades: the decline of civil rights reforms and the rise of charter schools. Courts and policy makers have relegated traditional civil rights reforms that address segregation, poverty, disability, and language barriers to near irrelevance, while charter schools and policies supporting their creation and expansion have rapidly increased and now dominate federal policy. Advocates of traditional civil rights reforms interpret the success of charter schools as a threat to their cause, and, consequently, have fought the expansion of charter schools. This Article argues that the civil rights community …


Beyond Law Enforcement: Camreta V. Greene, Child Protection Investigations, And The Need To Reform The Fourth Amendment Special Needs Doctrine, Josh Gupta-Kagan Dec 2012

Beyond Law Enforcement: Camreta V. Greene, Child Protection Investigations, And The Need To Reform The Fourth Amendment Special Needs Doctrine, Josh Gupta-Kagan

Faculty Publications

The Fourth Amendment “special needs” doctrine distinguishes between searches and seizures that serve the “normal need for law enforcement” and those that serve some other “special need,” excusing non-law enforcement searches and seizures from the warrant and probable cause requirements. The Supreme Court has never justified drawing this bright line exclusively around law enforcement searches and seizures but not those that threaten important non-criminal constitutional rights.

Child protection investigations illustrate the problem: Millions of times each year, state child protection authorities search families’ homes, and seize children for interviews about alleged maltreatment. Only a minority of these investigations involve an …


Reverse-Commandeering, Margaret Hu Dec 2012

Reverse-Commandeering, Margaret Hu

Faculty Publications

Although the anti-commandeering doctrine was developed by the Supreme Court to protect state sovereignty from federal overreach, nothing prohibits flipping the doctrine in the opposite direction to protect federal sovereignty from state overreach. Federalism preserves a balance of power between two sovereigns. Thus, the reversibility of the anticommandeering doctrine appears inherent in the reasoning offered by the Court for the doctrine’s creation and application. In this Article, I contend that reversing the anti-commandeering doctrine is appropriate in the context of contemporary immigration federalism laws. Specifically, I explore how an unconstitutional incursion into federal sovereignty can be seen in state immigration …


The Irony Of Privacy Class Action Litigation, Eric Goldman Dec 2012

The Irony Of Privacy Class Action Litigation, Eric Goldman

Faculty Publications

In the past few years, publicized privacy violations have regularly spawned class action lawsuits in the United States, even when the company made a good faith mistake and no victim suffered any quantifiable harm. Privacy advocates often cheer these lawsuits because they generally favor vigorous enforcement of privacy violations, but this essay encourages privacy advocates to reconsider their support for privacy class action litigation. By its nature, class action litigation uses tactics that privacy advocates disavow. Thus, using class action litigation to remediate privacy violations proves to be unintentionally ironic.


The Incredible Shrinking Confrontation Clause, Jeffrey Bellin Dec 2012

The Incredible Shrinking Confrontation Clause, Jeffrey Bellin

Faculty Publications

Sharp turns in the Supreme Court’s recent Confrontation Clause jurisprudence have left scholars reeling from conflicting emotions: exhilaration, despair, denial, and soon, perhaps, cynical acceptance. While most commentators celebrated the demise of the incoherent Ohio v. Roberts framework, their excitement largely faded as the Court’s decisions in Davis v. Washington and Bryant v. Michigan revealed nascent flaws in the evolving doctrine and sharply curtailed the newly revitalized confrontation right.

Recent scholarship strives to reanimate the jurisprudence by expanding the doctrinal definition of “testimonial” statements – the sole form of evidence that the Court now recognizes as implicating the Confrontation Clause. …


What Is The Fuss About Joint Direct Infringement?: The Saga Of Akamai/Mckesson, Brian J. Love Nov 2012

What Is The Fuss About Joint Direct Infringement?: The Saga Of Akamai/Mckesson, Brian J. Love

Faculty Publications

  • Summary of procedural history and en Banc holding
  • Effect on Litigation in medical devices and computer software fields
  • Effect on patent prosecution
  • Discussion of dissents: Will this case be taken up by the Supreme Court?


Could A Patent Term Reduction Solve The Software Patent Problem?, Brian J. Love Nov 2012

Could A Patent Term Reduction Solve The Software Patent Problem?, Brian J. Love

Faculty Publications

No abstract provided.


Comments On Petherbridge, Et Al., Unenforceability, Brian J. Love Nov 2012

Comments On Petherbridge, Et Al., Unenforceability, Brian J. Love

Faculty Publications

No abstract provided.


The Patent Remedy Dynamic [Georgetown-Stanford Conference], Colleen Chien Nov 2012

The Patent Remedy Dynamic [Georgetown-Stanford Conference], Colleen Chien

Faculty Publications

Panel discussion on the NPEs, patent damages, including review of expert testimony, the effect of RAND and other policies on standard-setting cases at the ITC and in district courts, and other patent remedy issues.


Ferc Order 1000 As A New Tool For Promoting Energy Efficiency And Demand Response, Shelley Welton, Michael Gerrard Nov 2012

Ferc Order 1000 As A New Tool For Promoting Energy Efficiency And Demand Response, Shelley Welton, Michael Gerrard

Faculty Publications

In July 2011, the Federal Energy Regulatory Commission (FERC) issued Order No. 1000, the latest in a series of orders directed at improving federal transmission access, planning, and coordination. Order 1000 requires, for the first time, that electricity transmission providers engage in regionwide transmission planning, and further mandates that such planning consider how federal and state public policies affect transmission needs. Public utility transmission providers are now in the process of amending their operating tariffs to comply with this new order. It is therefore an important time for all those with an interest in the future of the electric grid …


Restrictive State And Local Immigration Laws: Solutions In Search Of Problems, Pratheepan Gulasekaram, Karthick Ramakrishnan Nov 2012

Restrictive State And Local Immigration Laws: Solutions In Search Of Problems, Pratheepan Gulasekaram, Karthick Ramakrishnan

Faculty Publications

In the Issue Brief, the authors demonstrate that conventional understandings of why states and localities pass restrictive immigration laws do not hold up under empirical analysis. Rather, the data from their nationwide study of 50 states and over 25,000 local jurisdictions show that “what most subfederal jurisdictions with immigration enforcement laws share is not economic stress or overconsumption of public goods or heightened violent crime, but rather a partisan composition within their legislative and executive branches that is highly receptive to enforcement heavy proposals.” These laws are not, as some have contended, organic local responses to inaction at the federal …


Markets As A Moral Foundation For Contract Law, Nathan B. Oman Nov 2012

Markets As A Moral Foundation For Contract Law, Nathan B. Oman

Faculty Publications

No abstract provided.


Bullshit!: Why The Retroactive Application Of Federal Rules Of Evidence 413-414 And State Counterparts Violates The Ex Post Facto Clause, Colin Miller Oct 2012

Bullshit!: Why The Retroactive Application Of Federal Rules Of Evidence 413-414 And State Counterparts Violates The Ex Post Facto Clause, Colin Miller

Faculty Publications

In Calder v. Bull, the Supreme Court recognized four types of laws that cannot be applied retroactively consistent with the Ex Post Facto Clause, including “[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” But, in its opinion in Carmell v. Texas, the Court determined that ordinary rules of evidence do not violate the Clause because they (1) are “evenhanded, in the sense that they may benefit either the State or the defendant in a …


Should Frand Patents Get Exclusion Orders?, Colleen Chien Oct 2012

Should Frand Patents Get Exclusion Orders?, Colleen Chien

Faculty Publications

No abstract provided.


The Law School Critique In Historical Perspective, A. Benjamin Spencer Oct 2012

The Law School Critique In Historical Perspective, A. Benjamin Spencer

Faculty Publications

Contemporary critiques of legal education abound. This arises from what can be described as a perfect storm: the confluence of softness in the legal employment market, the skyrocketing costs of law school, and the unwillingness of clients and law firms to continue subsidizing the further training of lawyers who failed to learn how to practice in law school. As legal jobs become increasingly scarce and salaries stagnate, the value proposition of law school is rightly being questioned from all directions. Although numerous valid criticisms have been put forth, some seem to be untethered from a full appreciation for how the …


Acronyms, Douglas E. Abrams Oct 2012

Acronyms, Douglas E. Abrams

Faculty Publications

No abstract provided.


Side Letters, Incorporation By Reference And Construction Of Contractual Relationships Memorialized In Multiple Writings, Royce De R. Barondes Oct 2012

Side Letters, Incorporation By Reference And Construction Of Contractual Relationships Memorialized In Multiple Writings, Royce De R. Barondes

Faculty Publications

This article will examine the legal principles applicable to contractual relationships memorialized in multiple writings.


Defining Religion Down: Hasanna-Tabor, Martinez, And The U.S. Supreme Court, Carl H. Esbeck Oct 2012

Defining Religion Down: Hasanna-Tabor, Martinez, And The U.S. Supreme Court, Carl H. Esbeck

Faculty Publications

While two recent Supreme Court cases on religious freedom appear sharply at odds, in one material respect they harmonize around an understanding that religion is fully protected only when exercised in private. CLS v. Martinez involved Hastings College of Law. Hastings' regulation of extracurricular organizations was unusual in requiring that any student can join an organization. This all-comers rule had a discriminatory impact on organizations with exclusionary memberships, such as the Christian Legal Society (CLS) which required subscribing to a statement of faith and conduct. The Court acknowledged the discriminatory effect, but said that the Free Speech Clause protects speech …


Beware Of The Diamond Dogs: Why A 'Credentials Alone' Conception Of Probable Cause Violates The Compulsory Process Clause, Colin Miller Oct 2012

Beware Of The Diamond Dogs: Why A 'Credentials Alone' Conception Of Probable Cause Violates The Compulsory Process Clause, Colin Miller

Faculty Publications

In Florida v. Harris, the State has asked the Supreme Court to find that a positive alert by a certified narcotics-detection dog is per se sufficient, in and of itself, to establish probable cause for the search of a vehicle. This essay, to be published in conjunction with Leslie Shoebotham's amici brief in Harris, argues that this "credentials alone" conception of probable cause violates the Compulsory Process Clause.


Complex And Murky Spatial Planning, Josh Eagle Oct 2012

Complex And Murky Spatial Planning, Josh Eagle

Faculty Publications

No abstract provided.


Teacher, Mentor, Friend, Leader, Richard C. Reuben, Margaret L. Shaw Oct 2012

Teacher, Mentor, Friend, Leader, Richard C. Reuben, Margaret L. Shaw

Faculty Publications

It is a rare person who through his own thoughts and efforts can truly be said to have changed this country, and the world, for the better. Fewer still do it with humility and grace. Frank E. A. Sander is one such transformative figure, a man who for nearly 40 years has nurtured the field of dispute resolution that today is credited as being one of the most significant shifts in American law. Inspired by his ideas and efforts, the resolution of legal problems is faster, more humane, more effective, and less costly for those in the United States and …


Lonely Colonist Seeks Wife: The Forgotten History Of America’S First Mail Order Brides, Marcia A. Yablon-Zug Oct 2012

Lonely Colonist Seeks Wife: The Forgotten History Of America’S First Mail Order Brides, Marcia A. Yablon-Zug

Faculty Publications

No abstract provided.


The Scope Of Trademark Law In The Age Of The Brand Persona, Laura A. Heymann Oct 2012

The Scope Of Trademark Law In The Age Of The Brand Persona, Laura A. Heymann

Faculty Publications

No abstract provided.


Elected Judges And Statutory Interpretation, Aaron-Andrew P. Bruhl, Ethan J. Leib Oct 2012

Elected Judges And Statutory Interpretation, Aaron-Andrew P. Bruhl, Ethan J. Leib

Faculty Publications

This Article considers whether differences in methods of judicial selection should influence how judges approach statutory interpretation. Courts and scholars have not given this question much sustained attention, but most would probably embrace the “unified model,” according to which appointed judges (such as federal judges) and elected judges (such as many state judges) are supposed to approach statutory text in identical ways. There is much to be said for the unified model—and we offer the first systematic defense of it. But the Article also attempts to make the best case for the more controversial but also plausible contrary view: that …


Applying Crawford's Confrontation Right In A Digital Age, Jeffrey Bellin Oct 2012

Applying Crawford's Confrontation Right In A Digital Age, Jeffrey Bellin

Faculty Publications

No abstract provided.


Making Sex The Same: Ending The Unfair Treatment Of Males In Family Law, Myrisha S. Lewis Oct 2012

Making Sex The Same: Ending The Unfair Treatment Of Males In Family Law, Myrisha S. Lewis

Faculty Publications

No abstract provided.