Law Commons^™

African Asylum At A Crossroads: Activism, Expert Testimony, And Refugee Rights, Iris Berger, Tricia Redeker Hepner, Benjamin N. Lawrance, Joanna T. Tague, Meredith Terretta

Ohio University Press Open Access Books

African Asylum at a Crossroads: Activism, Expert Testimony, and Refugee Rights examines the emerging trend of requests for expert opinions in asylum hearings or refugee status determinations. This is the first book to explore the role of court-based expertise in relation to African asylum cases and the first to establish a rigorous analytical framework for interpreting the effects of this new reliance on expert testimony.

Over the past two decades, courts in Western countries and beyond have begun demanding expert reports tailored to the experience of the individual claimant. As courts increasingly draw upon such testimony in their deliberations, expertise …

An Introduction To The Women In Law Symposium, Tracy Thomas

Con Law Center Articles and Publications

This collected symposium gives context and definition to these continuing problems of sex discrimination. The included articles pull back the curtain to provide examples of how and why sex discrimination still exists. The articles go deeper, fleshing out persistent notions of gender as subordinate, exploring the public perception of gender in appearance of femininity and masculinity. They illustrate the tangible legal results of these gendered notions to legal issues as varied as forced sterilization of the mentally disabled, equal employment, or the criminalization of prostitution.

Tying The Knot With A Surname? The Constitutionality Of Japan's Law Requiring A Same Marital Name, Koji Higashikawa

Con Law Center Articles and Publications

The Japanese Supreme Court issued a decision denying married women the right to retain their separate maiden name legally after marriage. It upheld the constitutionality of an old law requiring both marital partners to adopt the same surname. This essay by a Japanese scholar provides insight and explanation into the Supreme Court’s decision.

Back To Class: Lessons From The Roberts Court Class Action Jurisprudence, Bernadette Bollas Genetin

Con Law Center Articles and Publications

This symposium issue on The Class Action After a Decade of Roberts Court Decisions provides perspectives on how the class action has fared under persistent Supreme Court scrutiny. Over the past ten years, the Roberts Court has repeatedly returned to questions concerning class action litigation...This ten-year retrospective on the Roberts Court’s class action decisions provides a timely opportunity to reflect on the Supreme Court’s institutional role in construing the Federal Rules and in creating class action policy through decisions construing Rule 23...The contributors to this symposium focus on the Roberts Court class action decisions as a whole; the Roberts Court’s …

The Supreme Court's New Approach To Personal Jurisdiction, Bernadette Bollas Genetin

Con Law Center Articles and Publications

The Supreme Court has returned to the issue of whether a “reasonableness” analysis or an “interstate federalism” focus underlies personal jurisdiction doctrine. It has, thus, renewed the debate regarding whether the so-called “forward-looking” or “backward-looking” face of International Shoe should control.

This Article explores two 2014 cases in which the Court took strides toward implementing a liberty interest, or reasonableness, view of personal jurisdiction. In the first case, Daimler AG v. Bauman, the Court introduced a new, narrower approach to general jurisdiction. Under Bauman’s more constrained analysis, general jurisdiction will be available primarily in an individual’s domicile and …

Tradition, Policy And The Establishment Clause: Justice Kennedy's Opinion In Town Of Greece V. Galloway, Wilson Huhn

Con Law Center Articles and Publications

The great jurisprudential battle that has raged in the Supreme Court for more than a century and the question that our society has struggled with since the advent of the Civil War is whether the Constitution is a command by our ancestors that we retain the same political structures, social hierarchies, and cultural traditions that they had, or whether it reflects ideals of liberty, equality, fairness, and tolerance that they aspired to and that they expected us to reach for. That struggle between rules and standards, doctrine and principles, conventionalism and consequentialism, tradition and policy in the interpretation of the …

Two Models Of Unpatentable Subject Matter, Alan L. Durham

Santa Clara High Technology Law Journal

Patentable subject matter has become one of the most controversial areas of patent law. Efforts to articulate a lucid and productive theory of patentable subject matter must acknowledge that there are two competing models of unpatentable subject matter. One posits that natural laws, natural phenomena, and abstract ideas are themselves ineligible for patenting, and that each example of a natural law, natural phenomenon, or abstract idea further defines a class of inventions that cannot be patented because they lack an additional element of ingenuity—or “inventive concept”—that sufficiently distinguishes those inventions from their natural counterparts. This “penumbral” model of unpatentable subject …

All That Is Solid Melts Into Air: The Subject-Matter Eligibility Inquiry In The Age Of Cloud Computing, Scott T. Luan

Santa Clara High Technology Law Journal

This article critiques and refines the subject-matter eligibility inquiry in patent law by examining the process of creativity in the context of software-implemented inventions. As a substantive critique of § 101 jurisprudence, this article, informed by copyright law, proposes a working hypothesis for a general structure of the subject-matter eligibility inquiry in which a critical determination is the appropriate level of abstraction for claim construction. As a discursive critique of the limits and limitations of judicial language, this article argues that courts have incorrectly presumed that contemporary legal thought is equipped, conceptually and linguistically, to understand the full significance of …

Reconsidering The Standard For Enhanced Damages In Patent Cases In View Of Recent Guidance From The Supreme Court, Howard Wisnia, Thomas Jackman

Santa Clara High Technology Law Journal

This article examines whether the jurisprudence of the enhanced damages provision found in 35 U.S.C. § 284 should be modified in light of recent Supreme Court decisions that have altered the jurisprudence of the attorney’s fees provision found in 35 U.S.C. § 285. The authors conclude that a revision is needed to the standard for determining whether to award enhanced damages under § 284 and that juries as opposed to judges should determine whether to grant such an award as well as the amount of the award.

Limited Consumer Privacy Protections Against The Layers Of Big Data, Andrew W. Bagley, Justin S. Brown

Santa Clara High Technology Law Journal

Consumers give away their data voluntarily and involuntary through their everyday online interactions. Many of these interactions are governed by “click-wrap” agreements in which consumers agree to data use terms with their Internet service provider (ISP), content provider, or an entire computing ecosystem through various layers of the Internet. This phenomenon effectively means that consumers lose control of their data to an endless web of third party big-data brokers unaccountable to the user. All the while, the increasingly dynamic and valuable nature of datasets makes it difficult to predict how data collected today will be used in the future. To …

Civil Justice Initiative: The Landscape Of Civil Litigation In State Courts, Paula Hannaford-Agor, Scott Graves, Shelley Spacek Miller

Faculty Publications

This study was undertaken to inform the deliberations of the Conference of Chief Justices (CCJ) Civil Justice Improvements Committee as it developed recommendations based on evidence-based practices to improve civil case processing in state courts. Much of the debate concerning the American justice system focuses on procedural issues that add complexity to civil litigation, resulting in additional cost and delay and undermining access to justice. Many commentators are alarmed by the increasing privatization of the civil justice system and particularly by the dramatic decline in the rates of civil bench and jury trials. In addition, substantially reduced budgetary resources since …

What Dna Can And Cannot Say: Perspectives Of Immigrant Families About The Use Of Genetic Testing In Immigration, Llilida P. Barata, Helene Starks, Patricia Kuszler, Wylie Burke

Articles

Genetic technologies are being implemented in areas that extend beyond the field of medicine to address social and legal problems. An emerging example is the implementation of genetic testing in the family petitioning process in immigration policy. This use of genetic testing offers the potential benefits of reducing immigration fraud and making the process more efficient and accessible for immigrants, especially those without documentation. However, little is known about the positive or negative impacts of such testing on immigrant families and their communities.

This study collected empirical data through family interviews to understand the experiences and attitudes of individuals who …

Ctc And International Research And Information Systems, Ruth Bird, Penny A. Hazelton, Kyle Brown

Articles

There is a long history of creating digital libraries of legal materials in general and of international legal materials in particular. This article highlights the history of several noteworthy examples of earlier digital libraries. It then describes the creation of the Cape Town Convention Academic Project digital library. Finally, the article applies lessons learned from the histories of the earlier libraries to analyse issues the Cape Town Convention library may face in the future.

Experience The Future: Papers From The Second National Symposium On Experiential Education In Law: Alliance For Experiential Learning In Law, Christine N. Cimini, Roberto L. Corrada, Myra Berman, Christine E. Cerniglia, Katherine R. Kruse

Articles

On June 13-15, 2014 the Second National Symposium on Experiential Educa­tion in Law took place in Greensboro, North Carolina. The Alliance for Experi­ential Learning in Law and Elon University School of Law hosted the symposium, with the support of Northeastern University School of Law. Presenters included professors and practitioners across multiple disciplines, in­cluding business, medicine, and architecture, and they shared their insights about the value of experiential education in their fields. Working from the Alliance for Experiential Learning in Law also presented their findings and distributed a set of working papers, which eventually culminated into this report. The report covers …

"Lead In The Far North" By Acceding To The Law Of The Sea Convention, Craig H. Allen

Articles

The theme for the 2015 Arctic Encounter Symposium was “Charting a Path to U.S. Leadership in the Far North.” I would like to begin my comments regarding U.S. leadership by reminding the audience that the Arctic is primarily a maritime domain and the fundamental rule set for international relations in the Arctic’s maritime domain is the 1982 U.N. Convention on the Law of the Sea (LOS Convention), a convention to which the United States remains the most conspicuous non-party.

When Private Property Rights Collide With Growth Management Legislation, Steve P. Calandrillo, Chryssa V. Deliganis, Andrea Woods

Articles

Over the past century, ever-expanding urban and suburban growth in the United States has offered a clear sign of America’s economic vitality, but it has not come without unique challenges of its own. Indeed, efforts to promulgate “smart growth” legislation as an antidote to suburban “sprawl” have proliferated in the past three decades, but it is time we ask ourselves whether their benefits outweigh their unintended consequences. States and local governments that once enthusiastically touted such legislation are beginning to confront unforeseen obstacles–and litigation–that raise the need for immediate reform.

This Article explores the impact of growth management acts on …

The Lost "Art" Of The Patent System, Sean M. O'Connor

Articles

Patent systems emerged in the early modern period of the West to incentivize development and dissemination of skills-based artisanal innovations. This approach appears to have been adopted by the Framers in drafting the Intellectual Property Clause.

Only later, in the Industrial Revolution, did ‘‘science’’ and ‘‘technology’’ begin to displace ‘‘art’’ as the perceived object of the U.S. patent system. This was in large part because of the emergence of the concept of ‘‘technology’’ itself as science-based innovation in artisanal and mechanized production.

The loss of an ‘‘art’’-based concept of the patent system is arguably causing some of the confusion over …

Obergefell'S Squandered Potential, Peter Nicolas

Articles

No abstract provided.

Gayffirmative Action: The Constitutionality Of Sexual Orientation-Based Affirmative Action Policies, Peter Nicolas

Articles

Twenty-five years ago, the U.S. Supreme Court established a consistency principle in its race-based equal protection cases. That principle requires courts to apply the same strict scrutiny to racial classifications designed to benefit racial minorities—such as affirmative action policies—as they do to laws invidiously discriminating against them. The new consistency principle, under which discrimination against whites is subject to strict scrutiny, conflicted with the Court's established criteria for declaring a group to be a suspect or quasi-suspect class entitled to heightened scrutiny, which focused on such considerations as the history of discrimination against the group and its political powerlessness.

As …

Have Fun With Strategic Planning, Kellye Y. Testy

Articles

No abstract provided.

Richmond Law Magazine: Winter 2015

Richmond Law Magazine

Features:

Traces of Ourselves

A Librarian and His Muse

The Long Game

Ethics For Media Lawyers: The Lessons Of Ferguson, Leonard M. Niehoff

Articles

Ferguson, Missouri, has a population of roughly 21,000 people. Thirty cities in Missouri have larger populations. The Edward Jones Dome, where the St. Louis Rams play football, seats three times as many people. Most of us had never heard of Ferguson prior to August 9, 2014, when a police oficer named Darren Wilson shot and killed an unarmed black teenager named Michael Brown. But, to paraphrase the grim observation of Ambrose Bierce, war is how Americans learn geography. So, as violence and vandalism erupted on its streets, the nation turned its attention toward Ferguson and labored to understand the place, …

Hunger, Poverty, And The Criminalization Of Food Sharing In The New Gilded Age, Marc-Tizoc González

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Growing Inequality And Children, Naomi Cahn, June Carbone

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Impact Of Race And Socioeconomic Status On Access To Accommodations In Postsecondary Education, Ashley Yull

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Gender Respect Education: A Proposal To Combat Commercial Sexual Exploitation, Serena Patel

American University Journal of Gender, Social Policy & the Law

No abstract provided.

How Far Will The Strictest State Push The Limits: The Constitutionality Of California’S Proposed Gun Law Under The Second Amendment, Lauren Paglini

American University Journal of Gender, Social Policy & the Law

No abstract provided.

For Men Only: A Gap In The Rules Allows Sex Discrimination To Avoid Ethical Challenge, Michelle N. Struffolino

American University Journal of Gender, Social Policy & the Law

The billboard states: “Divorce: Men Only.” The reaction is one of confusion. Something just does not seem right. Isn’t this discrimination? Is the system willing to allow this message because the need to protect men’s rights in divorce outweighs the systemic and societal harms associated with the message?

Although this article focuses on the ethical issues associated with firms that exclude women from the pool of potential divorce clients, the existence of women only law firms is acknowledged. The analysis of the ethical issues raised by these gender specific firms is somewhat the same regardless of what gender is excluded. …

Following New Lights: Critical Legal Research Strategies As A Spark For Law Reform In Appalachia, Nicholas F. Stump

American University Journal of Gender, Social Policy & the Law

The nascent “critical legal research” movement applies the constellation of critical theory to the American legal research regime. Work in this discourse has unpacked the means through which commercial print and online legal resources (e.g., Westlaw and Lexis) insidiously channel the efforts of legal researchers, essentially predetermining research outcomes. Although legal research is commonly conceived as a normatively neutral paradigm, such commercial homogenizing agents (paired with traditional methods of legal analysis) in fact reflect and perpetuate society’s dominant interests. As grounded in the existing literature, this Article outlines novel strategies that may together constitute one potential version of a critically …

The Resurgence Of Forced Labor: How The Sixth Circuit's Decision In United States V. Toviave Endorses The Exploitation Of Children, Sophia K. Niazi

American University Journal of Gender, Social Policy & the Law

Comment arguing that the Sixth Circuit decision in United States v. Toviave was erroneous because the court failed to determine that the alleged forced labor was used as a means to control the children in the case. The comment looks at the reasoning in Toviave and explores the Sixth Circuit's reasoning in the case as well as the Federal Forced Labor Statute, the Federal Involuntary Servitude Statute and Michigan's current child abuse laws.