Law Commons^™

A Methodical Approach To Legal Research: The Legal Research Plan, An Essential Tool For Today's Law Student And New Attorney, Caroline L. Osborne

Scholarly Articles

This article lays out an approach to teaching legal research through an examination of historical and contemporary approaches to legal research and research instruction. It discusses creating a research plan and reviews the most commonly used legal research texts. It concludes with sample research assignments and assessment tools.

Reply - Commercialization Without Exchange, Michael J. Burstein

Articles

In this brief reply to Prof. Ted Sichelman’s comments on my article Exchanging Information Without Intellectual Property, I argue that justifications for intellectual property that rely on the incentives exclusive rights offer for commercialization are not economically distinguishable from traditional theories based on incentives to invent or create in the first instance. Because innovation is not an event but a process, innovative activities may be subject to misappropriation – and therefore under-production – at multiple points along the supply chain that runs from conception to commercialization. The grant of exclusive rights is an intervention that can be made at any …

Asking The First Question: Reframing Bivens After Minneci, Alexander A. Reinert, Lumen N. Mulligan

Articles

In Minneci v. Pollard, decided in January 2012, the Supreme Court refused to recognize a Bivens v. Six Unknown Federal Narcotics Agents suit against employees of a privately run federal prison because state tort law provided an alternative remedy, thereby adding a federalism twist to what had been strictly a separation-of-powers debate. In this Article, we show why this new state-law focus is misguided. We first trace the Court’s prior alternative-remedies-to-Bivens holdings, illustrating that this history is one narrowly focused on separation of powers at the federal level. Minneci’s break with this tradition raises several concerns. On a …

The Haennig-Nordmann Papers: Two Lawyers In Occupied France, Eric Freedman, Richard H. Weisberg

Articles

No abstract provided.

Rules Or Standards For Intestate Succession?, Stewart E. Sterk

Articles

No abstract provided.

Integration Reclaimed: A Review Of Gary Peller's Critical Race Consciousness, Michelle Adams

Articles

Integration occupies a contested and often paradoxical place in legal and public policy scholarship and the American imagination. Today, more Americans are committed to integration than ever before. Yet this attachment to integration is hardly robust. There is a widespread perception that integration has failed. A vanishingly small percentage of social and economic resources are spent on integration. At the same time, some progressives and those who would otherwise consider themselves on the "left" criticize integration as insufficiently attentive to economic equality and dismissive of black identity and culture. Scholars from across the political spectrum have sought to explain this …

What's A Name Worth?: Experimental Tests Of The Value Of Attribution In Intellectual Property, Christopher Jon Sprigman, Christopher Buccafusco, Zachary Burns

Articles

Despite considerable research suggesting that creators value attribution – i.e., being named as the creator of a work – U.S. intellectual property (IP) law does not provide a right to attribution to the vast majority of creators. On the other side of the Atlantic, however, many European countries give creators, at least in their copyright laws, much stronger rights to attribution. At first blush it may seem that the U.S. has gotten it wrong, and the Europeans have made a better policy choice in providing to creators a right that they value. But for reasons we will explain in this …

Well-Being Analysis Vs. Cost-Benefit Analysis, John Bronsteen, Christopher Buccafusco, Jonathan S. Masur

Articles

No abstract provided.

Are Risks Wrong?, Anthony J. Sebok

Articles

No abstract provided.

Effect Precedes Cause: Kant And The Self-In-Itself, David G. Carlson

Articles

This article describes the metaphysics of Kant, according to which we never know the Thing In Itself but only the appearance of it. When applied to selfhood (which is a “thing”), Kant implies that we never know what motivates us to do what we do. Our reasons are after-the-fact apologies to justify our acts. For that reason the “cause” of our deed always (that is to say, our reasons) follows the deed itself. Effect precedes cause, on Kantian metaphysics.

The Critique Of Judgment: Introduction, Angelica Nuzzo, David G. Carlson

Articles

No abstract provided.

Roadblocks To Remedies: Recently Developed Barriers To Relief For Aliens Injured By U.S. Officials, Contrary To The Founders' Intent, Gwynne L. Skinner

University of Richmond Law Review

No abstract provided.

Peer Review Across The Curriculum, Patricia G. Montana

Faculty Publications

(Excerpt)

In 2007, two very influential institutes published reports that challenged legal educators to reconsider how they design courses, deliver instruction, assess their students’ learning and explore new ways to prepare students for the profession of law. The Carnegie Foundation for the Advancement of Teaching published its report, Educating Lawyers: Preparation for the Profession of Law (“Carnegie Report”), and the Clinical Legal Education Association published its study, Best Practices for Legal Education (“Best Practices Report”) (collectively, the “Reports”). Both Reports came to the same conclusion: law schools must devote more attention and resources to helping students develop the professional skills …

Rights And Wrongs In The Debate Over Single-Sex Schooling, Rosemary C. Salomone

Faculty Publications

(Excerpt)

In September 2011 an article entitled The Pseudoscience of Single-Sex Schooling appeared in the journal Science. Unlike articles typically published in peer-reviewed journals, the primary intent in this case was not to inform the scholarly community but rather to accomplish larger political and legal ends. Co-authored by eight prominent psychologists and neuroscientists, it immediately made the front pages of national newspapers and soon took the international media by storm. From the United Kingdom to Australia, New Zealand, India, and South Africa, it gave rise to a global debate about the pros and cons of single-sex schooling.

As directly …

Antitrust Law And Economic Theory: Finding A Balance, Edward D. Cavanagh

Faculty Publications

Over the past forty years, the federal courts have relied more and more on economic theory to inform their antitrust analyses. Economic theory has indeed provided guidance with respect to antitrust issues and assisted the courts in reaching rational outcomes. At the same time, infusion of economic evidence into antitrust cases has made these cases more complex, lengthier, more expensive to litigate, and less predictable.

This Article argues that courts need to restore the balance between facts and economic theory in undertaking antitrust analysis. The problem is not that judges and juries cannot reach good outcomes in antitrust cases, but …

Introduction Of Chief Justice Roberts, At The Robert H. Jackson Center, May 17, 2013, John Q. Barrett

Faculty Publications

(Excerpt)

A backdrop to this event is an ongoing, if entirely friendly, War Between the States … or at least between two States.

As a boy, Robert H. Jackson and family moved from the state of his birth to a second state, where he completed grade school and high school and then embarked on life. Our honored guest, John G. Roberts, Jr., did the same thing in his boyhood. In Jackson’s case, following his birth and early boyhood on the family farm in Spring Creek Township, Warren County, Pennsylvania, the move was to Frewsburg, New York, and then to Jamestown—Pennsylvania …

Remarks At The Naming Ceremony, Robert H. Jackson United States Courthouse, Buffalo, New York, John Q. Barrett

Faculty Publications

(Excerpt)

Thank you, Chief Judge Skretny, for that generous introduction. Thank you and congratulations, for vision and dedicated efforts, to Senators Schumer and Gillibrand; Representative Higgins; Chief Judge Skretny and Judge Arcara; Chief Judge Katzmann; Chief Judge Preska; all of their judicial and court colleagues; Administrator Pease; Mayor Brown and city officials; Buffalo law, business and civic leaders; and the people—all of the lucky “Jacksonland” people—of the Western District of New York.

As has been noted, young Robert H. Jackson’s life path ran right through this site. Born in Spring Creek, Pennsylvania, Jackson grew up there and then in Chautauqua …

Setting Attorneys' Fees In Securities Class Actions: An Empirical Assessment, Lynn A. Baker, Michael A. Perino, Charles Silver

Faculty Publications

(Excerpt)

In 1995, Congress overrode President Bill Clinton's veto and enacted the Private Securities Litigation Reform Act ("PSLRA"), a key purpose of which was to put securities class actions under the control of institutional investors with large financial stakes in the outcome of the litigation. The theory behind this policy, set out in a famous article by Professors Elliot Weiss and John Beckerman, was simple: self-interest should encourage investors with large stakes to run class actions in ways that maximize recoveries for all investors. These investors should naturally want to hire good lawyers, incentivize them properly, monitor their actions, and …

Ethical Concerns When Settlement Includes An Agreement About Expungement, Christine Lazaro

Faculty Publications

(Excerpt)

When a customer makes a complaint against his or her broker, oftentimes that complaint is reported on the broker’s public record and made available to the public through the BrokerCheck system provided by the Financial Industry Regulatory Authority (FINRA). The National Association of Securities Dealers (NASD) established BrokerCheck in 1998 to provide the public with information about the professional background, business practices, and conduct of brokers and brokerage firms.

Understandably, brokers generally attempt to keep as clean a record as possible because potential clients may use BrokerCheck to decide whether to invest with a particular broker. To remove a …

Law Student Laptop Use During Class For Non-Class Purposes: Temptation V. Incentives, Jeff Sovern

Faculty Publications

(Excerpt)

When the creators of the children’s television show Sesame Street wished to know whether preschoolers would actually watch it, their head of research, Ed Palmer, set up a room with a television monitor showing segments from the show. On a nearby screen, Palmer projected slides of various images; the slides changed every seven-and-a-half seconds. Then he brought small children in and waited to see if the children focused on the Sesame Street segments or the still pictures. Only segments that elicited attention from many preschoolers ended up on the air. As a result, the producers discarded segments that they …

Learning Contracts Through Current Events: Lawrence Cunningham’S Contracts In The Real World: Stories Of Popular Contracts And Why They Matter, Miriam A. Cherry

Faculty Publications

(Excerpt)

In his recent book published by Cambridge University Press, Professor Lawrence Cunningham explores the nuances of contract law through current events. His decision to use the contracts of modern-day singers, actors, and entertainers to illustrate contract law principles is an inspired choice that will appeal to today’s law students. The book guides the reader down the well-trodden path of classic contract doctrines and applies those classics in modern, celebrity-laden contexts. In this regard, the book reads like an updated version of Marvin Chirelstein’s classic contracts primer— an easy-to-read and clearly written commentary. Cunningham’s version adds rollicking celebrity stories to …

Confidentiality: The Illusion And The Reality— Affirmative Steps For Lawyers And Mediators To Help Safeguard Their Mediation Communications, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Confidentiality is one promise of mediation that is increasingly broken, even though judges, lawyers and mediators frequently extol the sacredness of mediation confidentiality as a primary benefit for considering mediation as a settlement forum. We observe that legal challenges to any aspect of the mediation have caused judges to scrutinize mediation communications in a way that renders mediation confidentiality vulnerable at a minimum and violated at the worst. We are finding it a chronic challenge to decipher the precise and appropriate boundaries of mediation confidentiality. Moreover, we are increasingly discomforted to see that even unsuccessful legal challenges to mediation …

Cyber Commodification, Miriam A. Cherry

Faculty Publications

(Excerpt)

Last year, the Huffington Post blog found itself involved in a contentious legal dispute with its unpaid bloggers about the commodification of its content. The Huffington Post features many posts that are straight-ahead news reports; other posts have featured more ideological content aimed at a liberal audience. Leading up to the 2008 election, many Huffington Post bloggers wrote accounts critical of then-President George W. Bush, specifically his administration’s treatment of the Guantanamo Bay prisoners, while others wrote to assist fellow Democratic voters become more familiar with the primary candidates. Regardless of one’s personal political leanings, the website attracted a …

What Sally Soprano Teaches Lawyers About Hitting The Right Ethical Note In Adr Advocacy, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Paradoxically, when lawyers opt to mediate or arbitrate, lawyers may still wind up selecting, shaping and advocating in these dispute resolution processes to resemble the very litigation process they have sought to avoid. After all, litigation likely comports with the lawyer’s own conflict style, comfort level and concepts of justice. As a consequence of this litigation bias, we see that the metaphorical doors of a multi-door courthouse that once offered a menu of dispute resolution choices are increasingly leading us back to one choice: a variation of the litigation door. Even though the Model Rules of Professional Conduct confirm …

Reflections Of A First-Time Expert Witness, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

On January 2, 2013, I testified as an expert witness at a sentencing hearing in federal district court. It was my first time being qualified as an expert, and my only time testifying in court in any capacity. A couple of months earlier, I had been contacted by an Assistant Federal Public Defender (AFPD) who asked if I’d be interested in being retained as an expert. She was handling the sentencing of a man convicted of child pornography possession, receipt, and transportation, and had read my work criticizing the development of the Federal Sentencing Guidelines provisions for these offenses. …

Taking Note: On Copyrighting Students’ Lecture Notes, Matthew M. Pagett

Richmond Journal of Law & Technology

An essential element of individual property is the legal right to exclude others from enjoying it. If the property is private, the right of exclusion may be absolute; if the property is affected with a public interest, the right of exclusion is qualified. But the fact that a product of the mind has cost its producer money and labor, and has a value for which others are willing to pay, is not sufficient to ensure to it this legal attribute of property. The general rule of law is, that the noblest of human productions— knowledge, truths ascertained, conceptions, and ideas— …

Exposing Latent Patent Infringement, Bryan Blumenkopf

Richmond Journal of Law & Technology

Consider the following canonical patent infringement scenario. A

[1] plaintiff owns a patent with one or more claims to the patent’s underlying technology. Under 35 U.S.C. § 271(a), this plaintiff has the rights to manufacture, sell, use, or import the technology delineated by those claims.1 The defendant manufactures, sells, uses, or imports what appears to be the same technology. Because the claim language is not entirely clear, a judge construes the exact meaning of the claims in a preliminary hearing.2 Assuming that the patent is upheld as valid, a jury then determines whether the defendant’s device meets the limitations of …

Local Rules, Standing Orders, And Model Protocols: Where The Rubber Meets The (E-Discovery) Road, Thomas Y. Allman

Richmond Journal of Law & Technology

[District Courts], impatient with the failure of the national system to solve pressing, indeed urgent, procedural problems, utilize local rules in an effort to shape pragmatic solutions . . . . [as] one route to procedural change.

Information Governance: It’S A Duty And It’S Smart Business, Charles R. Ragan

Richmond Journal of Law & Technology

A scant generation ago (twenty-five years), the World Wide Web—“an internet-based hypermedia initiative for global information sharing” —was largely a laboratory phenomenon. In 1994, the Clinton Administration urged world leaders to develop a global information superhighway, and the Information Age raced upon us. Now, Facebook has more than one billion accounts and most of us are constantly deluged by volumes of electronic information through e-mail, texts, social media, the Internet, cable systems, and others.

No Implied Effect: The ‘Safe’ Fcc Cell Phone Radiation Standard And Tort Immunity By Implied Conflict Preemption, Sean M. Sherman

Richmond Journal of Law & Technology

Cell phones emit low-level radiation. Constantly.