Law Commons^™

Improving Patent Quality With Applicant Incentives, Stephen Yelderman

Journal Articles

This Article offers an alternative approach to the widely recognized problem of low-quality patents being granted by the patent office. Traditional reforms have focused almost exclusively on making the patent office more effective at examination. This Article instead looks at patent quality from an applicant’s perspective, and evaluates how certain patent rules might be encouraging inventors to file higher or lower quality claims. It proposes a variety of reforms to take advantage of applicants’ existing interests in obtaining patents that are both broad enough to create infringing activity and narrow enough to be valid. The result is a distinctive set …

The Inverse Relationship Between The Constitutionality And Effectiveness Of New York City "Stop And Frisk", Jeffrey Bellin

Faculty Publications

New York City sits at the epicenter of an extraordinary criminal justice phenomenon. While employing aggressive policing tactics, such as “stop and frisk,” on an unprecedented scale, the City dramatically reduced both violent crime and incarceration – with the connections between these developments (if any) hotly disputed. Further clouding the picture, in August 2013, a federal district court ruled the City’s heavy reliance on “stop and frisk” unconstitutional. Popular and academic commentary generally highlights isolated pieces of this complex story, constructing an incomplete vision of the lessons to be drawn from the New York experience. This Article brings together all …

Magna Carta And The Right To Trial By Jury, Thomas J. Mcsweeney

Faculty Publications

No abstract provided.

Attorney Competence In An Age Of Plea Bargaining And Econometrics, Jeffrey Bellin

Faculty Publications

This Essay explores the concept of attorney competence in a criminal justice system dominated by plea bargaining. It focuses, in particular, on the results of a widely-reported empirical study of Philadelphia murder cases that found “vast” differences in legal outcomes based on the type of defense attorney assigned to the case. The first part of the Essay explores the implications of these empirical findings, which appear to stem from a counter-intuitive form of professional competence, persistence in convincing one’s client to plead guilty. The findings are particularly intriguing in light of the Supreme Court’s recent expansion of ineffective assistance of …

States And Status: A Study Of Geographical Disparities For Immigrant Youth, Laila Hlass

Faculty Scholarship

This article looks at the legal and practical challenges arising out of a particular immigration protection for abandoned, abused, and neglected child migrants called “Special Immigrant Juvenile Status” (SIJS). This benefit, which is a pathway to legal permanent residence and citizenship, is the only area within federal immigration law that requires a state court to take action in order for immigration authorities to consider an individual’s eligibility for relief. Using an original data set of roughly 12,000 SIJS applications from the Department of Homeland Security in June 2013, this article describes trends over time and by state regarding the number …

Third-Party Litigation Funding And The Dodd-Frank Act, Victoria Sahani

Faculty Scholarship

This article questions whether the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”) should apply to the growing phenomenon of third-party litigation funding, in which outside entities invest in litigation or arbitration for profit. Currently, the United States, Australia, and the United Kingdom lightly regulate third-party litigation funding, but the majority of the day-to-day oversight comes through voluntary funder self-regulation. Most third-party funders of commercial disputes are private hedge funds that are subject to the securities regulations of the jurisdictions in which they operate. The Dodd-Frank Act is a relatively new statute in the United States that regulates …

Incorporating Rights: Child Labor In African Agriculture And The Challenge Of Changing Practices In The Cocoa Industry, Erika George

Faculty Scholarship

Millions of children around the world are working.¹ Many youth are fortunate to enjoy age-appropriate employment and learn valuable skills through work. Unfortunately, too many children labor under abusive conditions-some are trafficked, others are enslaved . These unfortunate children are denied the opportunity to enjoy the fundamental human rights essential to their development and guaranteed under international law.

This essay offers an overview of the issues associated with child labor eradication, a review of the legal instruments regulating the work of children, and an assessment of recent initiatives to address the worst forms of child labor in the cocoa …

Tinkering With Success: College Athletes, Social Media And The First Amendment, Meg Penrose

Faculty Scholarship

Good law does not always make good policy. This article seeks to provide a legal assessment, not a policy directive. The policy choices made by individual institutions and athletic departments should be guided by law, but absolutely left to institutional discretion. Many articles written on college student-athletes' social media usage attempt to urge policy directives clothed in constitutional analysis.

In this author's opinion, these articles have lost perspective-constitutional perspective. This article seeks primarily to provide a legal and constitutional assessment so that schools and their athletic departments will have ample information to then make their own policy choices.

Copyright’S Mercantilist Turn, Glynn S. Lunney Jr

Faculty Scholarship

Over the last twenty years, arguments for broader copyright have taken an increasingly mercantilist turn. Unable to establish that broader copyright will lead to more or better original works, as the Constitution and the traditional economic framework require, proponents have begun arguing for broader copyright on the basis of revenue and jobs. Rampant unauthorized copying is theft or piracy, proponents insist, depriving copyright owners of revenue and destroying jobs. Whether or not it leads to more or better works, broader copyright will increase revenue to copyright owners and thus increase employment in the copyright industries. This increased employment, on its …

Enforcement Of Foreign Arbitration Agreements And Awards: Application Of The New York Convention In The United States, Louis Del Duca, Nancy A. Welsh

Faculty Scholarship

Internationalc ommercial arbitrationp rovides customized and efficient resolution for disputes arising out of transnational commerce. When arbitration occurs in states that have ratified the New York Convention, the process also offers enforceable outcomes even in states other than the one where the arbitration occurred. The United States ratified the New York Convention in 1970, and its courts overwhelmingly enforce both arbitration agreements and arbitral awards. There are exceptions, however, and American courts require the use of certain procedures.

This Article provides a brief survey of American courts' recognition and enforcement of foreign arbitration agreements and arbitral awards. It begins by …

Conflict Of Laws, James P. George, Susan T. Phillips

Faculty Scholarship

States' and nations' laws collide when foreign factors appear in a lawsuit. Nonresident litigants, incidents outside the forum, and judgments from other jurisdictions can create problems with personal jurisdiction, choice of law, and the recognition of foreign judgments. This Article reviews Texas conflict cases from Texas state and federal courts during the Survey-period from November 1, 2011 through October 31, 2013. The Article excludes cases involving federal-state conflicts; intrastate issues, such as subject matter jurisdiction and venue; and conflicts in time, such as the applicability of prior or subsequent law within a state. State and federal cases are discussed together …

Robert Bork & Commercial Speech, Jonathan H. Adler

Faculty Publications

Before he redefined antitrust, Judge Robert Bork took aim at the First Amendment. Though his work in this area was not nearly as influential, it received substantial attention, particularly after President Ronald Reagan nominated Judge Bork to replace Justice Lewis Powell on the Supreme Court in 1987. Judge Bork's 1971 article, Neutral Principles and Some First Amendment Problems challenged the prevailing wisdom on the proper scope of First Amendment protections. In this article, published seven years before The Antitrust Paradox, Bork maintained that only "explicitly political" speech warranted constitutional protection. Other types of speech or expression, including much indisputably …

Climate Balkanization: Dormant Commerce And The Limits Of State Energy Policy, Jonathan H. Adler

Faculty Publications

Through the imposition of mandates on what sorts of energy may be produced or sold, state regulatory efforts have imposed burdens on interstate energy markets. In some cases, these burdens are explicit, as when states have privileged in-state energy sources at the expense of out-of-state producers or sellers. In other cases, these burdens are the inevitable consequence of state efforts to reduce the environmental impacts of energy consumed within the state. Such restrictions, and their associated burdens on interstate commerce, raise serious constitutional questions. Under the so-called "Dormant Commerce Clause," state regulations that discriminate against out-of-state actors are presumptively unconstitutional, …

Exploring The Illusion Of Transparency When Lying And Truth-Telling: The Impact Of Age, Self-Consciousness, And Framing, Jason Mandelbaum

Dissertations, Theses, and Capstone Projects

Individuals often overestimate the ability of others to accurately determine their internal states. This illusion of transparency has been shown to manifest itself in everyday scenarios, including when people are asked to estimate if others can tell when they are lying. Yet it has not been observed when truth-telling, nor investigated developmentally. The current experiments tested for an illusion of transparency when individuals were truth-telling and lying and investigated how a participant's age, dispositional self-consciousness, situational self-awareness and how questions were framed impacted the strength and prevalence of the illusion of transparency.

In Experiments 1 and 2, children and adolescents …

Is Burglary A Violent Crime? An Empirical Investigation Of Classifying Burglary As A Violent Felony And Its Statutory Implications, Phillip Kopp

Dissertations, Theses, and Capstone Projects

Under the common law, burglary is defined as a crime committed against the property of another, and is listed as a property offense for purposes of statistical description by the Uniform Crime Reports (UCR) and the National Crime Victimization Survey (NCVS). However, burglary is prosecuted and sentenced as a violent crime under habitual offender laws at the federal level, and can be regarded as violent in state law, depending on varied circumstances. Using a mixed methods approach, the current study compared state and federal burglary and habitual offender statutes to an empirical description of the offense. First, a comprehensive content …

Law Without Recognition: The Lack Of Judicial Discretion To Consider Individual Lives And Legal Equities In United States Immigration Law, John Clark Salyer

Dissertations, Theses, and Capstone Projects

Law is not separate and apart from society but exists as a unique institution within society both being directed by social change and affecting social change. The history of U.S. immigration law shows that immigrants were welcomed or rejected depending on economic, political, and social factors (such as racial attitudes) and the legal definitions of what sorts of immigration were permissible or excludable differed over time. Since the 1990s, hostile attitudes towards certain immigrants have been represented in laws to a greater and greater extent, most significantly with the 1996 amendments to the Immigration and Nationality Act. As a result …

Friends Of The Wild Swan V. Ashe, Hannah S. Cail

Public Land & Resources Law Review

In Friends of the Wild Swan v. Ashe, the District Court of Montana reviews the reasonableness of the U.S. Fish and Wildlife Service’s delayed preparation of the Canada lynx recovery plan. Environmental organizations brought the action for declaratory and injunctive relief pursuant to the ESA and the APA. In applying the “TRAC factors” and the “rule of reason,” the U.S. District Court for the District of Montana held that the Service’s twelve-year delay was unreasonable. The court ordered the Service propose a schedule, which the court will set as firm after review.

Ndls Update 09/30/2014, Notre Dame Law School

NDLS Update

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

The James Keller Award By The Christophers, The Christophers

1975–1999: David T. Link

In 2014, Fr. David Link, was awarded the James Keller Award in recognition of putting his faith into action to change the world for better by serving in prison ministry.

The Christophers were founded in 1945 by Maryknoll priest Father James Keller who saw there was a need for people of all faiths to engage in constructive action based on gospel values.

How Serious Is The Supreme Court About Religious Freedom?, Dawinder S. Sidhu

Faculty Scholarship

A new case will test whether the justices' defense of conscience in Hobby Lobby applies to minority religions like Muslims, or just to Christians.

Holder’S Inconsistent Constitutional Legacy, Lauren Carasik

Media Presence

No abstract provided.

Article Iii, The Framers, And Al Bahlul: A Reply To Steve, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Click Away: A Texas Law On “Improper Photography” Bites The Dust, Joanna L. Grossman, Lawrence M. Friedman

Hofstra Law Faculty Scholarship

Ronald Thompson was arrested in Texas and charged with 26 counts of “improper photography” in 2011. He was seen taking pictures of kids underwater at Sea World. After parents complained, he was arrested. A search of his camera revealed 73 photos of children in swimsuits, with the focus on their breasts and buttocks.

His behavior, according to the authorities, violated a provision of the Texas criminal code on “improper photography” (Tex. Penal Code, sec. 21.15). This provision outlawed photographs taken “without the other person’s consent,” and “with intent to arouse or gratify the sexual desire of any person.” Thompson’s defense: …

Front Matter

Journal of Digital Forensics, Security and Law

No abstract provided.

Masthead

Journal of Digital Forensics, Security and Law

No abstract provided.

Back Matter

Journal of Digital Forensics, Security and Law

No abstract provided.

Corporate Social Responsibility For Enforcement Of Labor Rights: Are There More Effective Alternatives?, Barbara J. Fick

Journal Articles

This article addresses the concept of corporate social responsibility (hereinafter CSR) as it relates to labor rights. It considers the following issues: is the CSR model, as evidenced by the adoption of corporate codes of conduct, effective in protecting labor rights?; and is this model the best way to protect labor rights? These issues are examined from two perspectives: practical and philosophical. Lastly, some alternative enforcement mechanisms are considered and their respective advantages and disadvantages for purposes of ensuring labor rights are discussed.

Volume 88, Issue 3 (2014)

Obiter Dicta

No abstract provided.

Vol. 47, No. 05 (September 29, 2014)

Indiana Law Annotated

No abstract provided.

Mmu: 09/29/14–10/05/14, Student Bar Association

Monday Morning Update

MMU Monday morning Update (Sept. 29 - Oct. 5)

Monday, Sept. 29

• “Jumpstart Your Public Interest Job Search,”
• ND Law & Economics Workshop. Prof. Brinig discusses “Shared Parenng Laws: Mistakes of Pooling.”
• Rosary, 4:30
• SBA Meeting
• Monday Night Soccer

Tuesday, Sept. 30

• "The Bar Exam: All You Need to Know" is presented by Themis Bar Review
• ND Men’s Soccer v. VCU
• Halloween Costume idea: Vigo the Carpathian

Wednesday, Oct. 1

• Business Law Forum (BLF) will be holding an Experiential Learning Meeting
• The Clynes Chair Lecture: Eduardo Ferrer MacGregor Poisot, Judge, Inter-American Court of Human Rights, will be speaking. The topic: …