Law Commons^™

Ndls Update 10/21/2014, Notre Dame Law School

NDLS Update

NDLS Update is a weekly email newsletter of news, events, and opportunities for Law School faculty and staff.

If It Looks Like A Vessel: The Supreme Court’S “Reasonable Observer” Test For Vessel Status, David R. Maass

Florida Law Review

What is a vessel? In maritime law, important rights and duties turn on whether something is a vessel. For example, the owner of a vessel can limit his liability for damages caused by the vessel under the Limitation of Shipowners’ Liability Act, and an injured seaman who is a member of the crew of a vessel can claim remedies under the Jones Act. Under the general maritime law, a vendor who repairs or supplies a vessel may acquire a maritime lien over the vessel. In these and other areas, vessel status plays a crucial role in setting the limits of …

Brown V. Plata: Renewing The Call To End Mandatory Minimum Sentencing, Steven Nauman

Florida Law Review

After more than twenty years of litigation, the United States Supreme Court finally determined whether California’s overcrowded prison system created a constitutional violation in Brown v. Plata. With prisons and jails across the country operating at well over 100% capacity, the Court concluded what advocates had been screaming for over a decade: prison overcrowding cannot be tolerated, and the only remedy is to reduce prison populations. What the Court failed to resolve, however, was what the primary cause of prison overcrowding is and how states and the federal government are supposed to comply with capacity expectations amid concerns for …

Bringing Our Children Back From The Land Of Nod: Why The Eighth Amendment Forbids Condemning Juveniles To Die In Prison For Accessorial Felony Murder, Mariko K. Shitama

Florida Law Review

Over 2,589 individuals sit in prison, where they have been condemned to die for crimes they committed before their eighteenth birthday. At least a quarter of these individuals received this sentence for accessorial felony murder, or a crime in which they did not kill or intend to kill the victim. Beginning with Roper v. Simmons in 2005 and continuing with Graham v. Florida in 2010, recent Eighth Amendment jurisprudence has recognized that juveniles are fundamentally different from adults in ways that limit the constitutionality of imposing adult punishment on them. In June 2012, the Supreme Court held that sentencing juveniles …

Civil Rule 54(B): Seventy-Five And Ready For Retirement, Andrew S. Pollis

Florida Law Review

As we commemorate the diamond anniversary of the Federal Rules of Civil Procedure, this Article takes a critical look at one of the failed Rules: Rule 54(b). Although many commentators have noted difficulties with Rule 54(b), this is the first effort to describe those difficulties comprehensively, analyze their root causes, and offer a workable alternative.

When an order resolves a discrete claim in a multi-claim action, Rule 54(b) permits a district court to sever the order for immediate appeal by “expressly determin[ing] that there is no just reason for delay.” The rule was designed to ease the hardship on litigants …

Vicarious Aggravators, Sam Kamin, Justin Marceau

Florida Law Review

In Gregg v. Georgia, the Supreme Court held that the death penalty was constitutional so long as it provided a non-arbitrary statutory mechanism for determining who are the worst of the worst, and therefore, deserving of the death penalty. As a general matter, this process of narrowing the class of death eligible offenders is done through the codification of aggravating factors. If the jury finds beyond a reasonable doubt that one or more aggravating factors exists, then a defendant convicted of murder is eligible for the ultimate sentence. There is, however, a critical, unanswered, and under-theorized issue raised by …

Founding-Era Conventions And The Meaning Of The Constitution’S “Convention For Proposing Amendments”, Robert G. Natelson

Florida Law Review

Under Article V of the U.S. Constitution, two thirds of state legislatures may require Congress to call a “Convention for proposing Amendments.” Because this procedure has never been used, commentators frequently debate the composition of the convention and the rules governing the application and convention process. However, the debate has proceeded almost entirely without knowledge of the many multi-colony and multi-state conventions held during the eighteenth century, of which the Constitutional Convention was only one. These conventions were governed by universally-accepted convention practices and protocols. This Article surveys those conventions and shows how their practices and protocols shaped the meaning …

Comment On The Proposed Definition Of “Eligible Organization” For Purposes Of Coverage Of Certain Preventative Services Under The Affordable Care Act, Lyman P.Q. Johnson, David K. Millon, Stephen M. Bainbridge, Ronald J. Colombo, Brett Mcdonnell, Alan J. Meese, Nathan B. Oman

Scholarly Articles

In late August 2014, after suffering a defeat in the Supreme Court Hobby Lobby decision when the Court held that business corporations are “persons” that can “exercise religion,” the Department of Health and Human Services (“HHS”) proposed new rules defining “eligible organizations.” Purportedly designed to accommodate the Hobby Lobby ruling, the proposed rules do not comport with the reasoning of that important decision and they unjustifiably seek to permit only a small group of business corporations to be exempt from providing contraceptive coverage on religious grounds. This comment letter to the HHS about its proposed rules makes several theoretical and …

Vol. 47, No. 07 (October 20, 2014)

Indiana Law Annotated

No abstract provided.

Heal Utah, Et. Al., Plaintiffs/Appellants, V. Kane County Water Conservancy District, Et. Al. Defendant/Appellees., Utah Court Of Appeals

Utah Court of Appeals Briefs (2007– 2019)

BRIEF OF APPELLANTS

Inter Partes Review: An Early Look At The Numbers, Brian Love, Shawn Ambwani

Faculty Publications

In the roughly two years since inter partes review replaced inter partes reexamination, petitioners have filed almost two-thousand requests for the Patent Trial and Appeal Board to review the validity of issued U.S. patents. As partial data on inter partes review (IPR) has trickled out via the blogosphere, interest from patent practitioners and judges has grown to a fever (and sometimes fevered) pitch. To date, however, no commentator has collected a comprehensive set of statistics on IPR. Moreover, what little data currently exists focuses on overall institution and invalidation rates — data that, alone, gives us little idea whether IPR …

Legal Formalism, Procedural Principles, And Judicial Constraint In American Adjudication, Christopher J. Peters

All Faculty Scholarship

American proponents of legal formalism, such as Supreme Court Justice

Antonin Scalia, worry (quite reasonably) that unfettered judicial discretion

poses a threat to democratic legitimacy, and they offer formalism – the mechanical

implementation of determinate legal rules – as a solution to this threat. I argue

here, however, that formalist interpretive techniques are neither sufficient nor

necessary to impose meaningful constraint on judges. Both the text and the

“original meaning” of legal rules are endemically under determinate, leaving much

room for judicial discretion in the decision of cases. But meaningful judicial

constraint can and does flow from other sources in …

October 18, 2014: Can Materialism Be True?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Can Materialism Be True?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Safe Havens Or Dangerous Waters? A Phenomenological Study Of Abused Women's Experiences In The Family Courts Of Ontario, Lois Shereen Winstock

PhD Dissertations

This qualitative, interdisciplinary research study explores the experiences of women abused by their intimate partners who appear as litigants in family court proceedings in Ontario, and the responses of judges presiding over those proceedings.

Domestic violence and abuse affects families from all social, economic and cultural groups. Women have been overwhelmingly identified as the victims of domestic violence and abuse. Children exposed to domestic violence and abuse, either directly or indirectly, are also negatively impacted. The term woman abuse has been employed to denote the gendered nature of the phenomena.

Studies of abused womens interactions with the legal system across …

Southern Telecom Order On Motions For Sanctions, Melvin K. Westmoreland

Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions

No abstract provided.

Judicial Speculation On Consumer Impression: The Pitfalls Of Measuring Trademark Tacking As A Question Of Law, Megan Majcher Hartnett

Catholic University Law Review

Trademark tacking allows a mark owner to adjust her mark without losing protection. The test for determining whether tacking is appropriate is whether the new mark is the legal equivalent of the old. This equivalency is measured by evaluating the continuing commercial impression created by the marks. A circuit split has developed over whether this test is a question of law or a question of fact. This Comment argues that the continuing commercial impression test is ill-suited to be measured as a question of law. Initially, this Comment focuses on how commercial impression is a fact-based inquiry and should be …

Access For Access: Ensuring Access To Federal Courts For Parents Seeking To Exercise Rights Of Access Under The Hague Convention On The Civil Aspects Of International Child Abduction, Katherine L. Olson

Catholic University Law Review

Each year, thousands of children are abducted across international borders, often by one of their parents. The Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) and its implementing legislation, the International Child Abduction Remedies Act (ICARA), provide recourse to the non-abducting parent. However, recent cases in the U.S. Courts of Appeal for the Fourth and Second Circuits have created a circuit split on the issue of whether rights of access, in contrast to rights of custody, convey a private right of action in U.S. federal courts under the Hague Convention. This Comment examines this circuit split …

The Meme Of Voter Fraud, Atiba R. Ellis

Catholic University Law Review

The meme of voter fraud is the idea that unworthy voters are attacking the electoral system by voting fraudulently through impersonation or other bad acts. Although scholars of election law aptly demonstrate that the meme is a myth, the meme nonetheless endures as a rationale for the continued passage of heightened voter regulations like voter identification laws. Scholarship critiquing the voter fraud meme relies on partisanship as the prime explanation for voter fraud arguments. This explanation is incomplete in light of the fact that proponents of the myth continue to believe it on an ideological level even when the lack …

The Jurisprudence Of Nature: The Importance Of Defining What Is "Natural", Jill M. Fraley

Catholic University Law Review

Informal regulations defining nature, natural, and organic have proliferated across diverse fields of law from patents to agriculture, from taxation to gemstones. The unwritten jurisprudence of defining nature is primarily a story of the struggle to isolate mankind’s manipulations and interventions, creating a man-nature dichotomy that frustrates more than it explicates. This failure to define nature continues with the Supreme Court’s recent Myriad decision, which struggles to define the law of nature exception to patentability, highlighting the challenge of measuring levels of human intervention and manipulation. Our dichotomous definitions do not generate neat, binary answers, but rather complicated scales of …

Searching For Culpability, Punishing The Guilty, And Protecting The Innocent: Should Congress Look To The Model Penal Code To Stem The Tide Of Federal Overcriminalization?, David Dailey

Catholic University Law Review

In late 2014, the House Judiciary Committee's Overcriminalization Task Force is expected to release a final report on federal overcriminalization. The Task Force has been studying the issue for over a year, and had held several hearings on a lack of a mens rea requirement in many federal statutes, as well as regulatory offenses that carry criminal sanctions. Several experts have recommended that Congress enact a default mens rea provision similar to the Model Penal Code (MPC). This Comment explores the issue of mens rea at the federal level and the federal courts' understanding of mens rea in federal criminal …

Is The United States Prepared For Ebola?, Lawrence O. Gostin, James G. Hodge Jr., Scott Burris

Georgetown Law Faculty Publications and Other Works

The West African Ebola epidemic is a humanitarian crisis and a threat to international security. It is not surprising that isolated cases have emerged in Europe and North America, but a large outbreak in the United States, with its advanced health system, is unlikely. Yet the handling of the first domestically diagnosed Ebola case in Dallas, Texas, raised concerns about national public health preparedness. What were the critical health system vulnerabilities revealed in Dallas, and how can the country respond more effectively to novel diseases in a globalized world?

Financing Elections And "Appearance Of Corruption": Citizen Attitudes And Behavior In 2012, Molly J. Walker Wilson

Catholic University Law Review

As political spending reaches new highs in the 2012 election cycle, and as the controversy surrounding wealthy donors and interest groups grows, polls demonstrate a surge of cynicism among Americans who profess a belief that the American political system is corrupt. The Supreme Court’s 2010 decision in Citizens United made possible the most recent expansion of political spending. In this case, the question was whether allowing corporations and unions to spend unlimited amounts of money on political advertising would result in corruption or the appearance of corruption. The majority on the Court determined that it would not. Many observers have …

Alt-Labor, Secondary Boycotts, And Toward A Labor Organization Bargain, Michael C. Duff

Catholic University Law Review

Recently, workers led by non-union labor advocacy groups, popularly labeled “ALT-Labor,” staged strikes and other job actions across the low-wage economy. Some observers see this activity as the harbinger of a reinvigorated labor movement or as audacious dissent by low-wage workers with nothing to lose. Others view the activity cynically as an exercise in futility, a struggle against inexorable market forces that refuse to pay $15 per hour to a fast food restaurant or big box retail worker. This article presumes that employers will respond to ALT-Labor in a historically typical manner—by seeking labor injunctions and civil damages in courts. …

Sec V. Bauer: If The Glove Fits, It's Insider Trading, Kramer Ortman

Catholic University Law Review

Until SEC v. Bauer, insider trading has never been applied within the context of an open-ended mutual fund. In alleging insider trading against Jilaine Bauer, an account executive of a mutual fund, the SEC originally won summary judgment; however, the case on appeal saw the SEC drop its original theory, the classical theory of insider trading, in favor of the alternative misappropriation theory. This Note argues that the misappropriation theory applies in the context of open-ended mutual funds by recognizing that the policy reasons underlying the prohibitions against insider trading are centered on the principles of fairness, market integrity, …

Boyd Briefs - Oct. 16, 2014, University Of Nevada, Las Vegas -- William S. Boyd School Of Law

Boyd Briefs / Road Scholars

Boyd Briefs provides weekly information regarding the activities and accomplishments of the faculty, students, and alumni of the William S. Boyd School of Law at the University of Nevada, Las Vegas.

The Santa Clara, 2014-10-16, Santa Clara University

The Santa Clara

No abstract provided.

Up Close And Personal With Delaware, Darian M. Ibrahim, Brian J. Broughman

Popular Media

No abstract provided.

Summary Of Byars V. State, 130 Nev. Adv. Op. 85, Katherine Frank

Nevada Supreme Court Summaries

The Court determined that (1) pursuant to Missouri v. McNeely[1], the natural dissipation of marijuana in the blood stream does not constitute a per se exigent circumstance permitting a warrantless blood draw, (2) NRS 484C.160(7)[2], which allows officers to use force to obtain blood samples, violates the Fourth Amendment of the United States Constitution[3], and (3) when a warrantless blood draw is nonetheless taken in good faith, evidence obtained from the blood draw is admissible at trial.

Summary Of D.R. Horton V. Betsinger, 130 Nev. Adv. Op. 84, Gil Kahn

Nevada Supreme Court Summaries

The Court determined that even when a case is remanded only in order for a trier of fact to determine the amount of punitive damages, NRS 42.005(3) requires that same trier of fact to first determine whether such damages are warranted.

Summary Of Oxbow Constr. V. Eighth Jud. Dist. Ct., 130 Nev. Adv. Op. 86, Erik Foley

Nevada Supreme Court Summaries

The Court determined that (1) previously leased units become a “residence” under NRS 40.630 when their titles are later transferred to a home purchaser; (2) units previously leased prior to transfer of title to a purchaser are not considered “new” under NRS 40.615; and (3) where there is at least one “new residence” in a multiple unit building, relief is available for construction defects in the limited common areas assigned to that building.