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Articles 1 - 30 of 60
Full-Text Articles in Law
Tcl V. Ericsson: The First Major U.S. Top-Down Frand Royalty Decision, Jorge L. Contreras
Tcl V. Ericsson: The First Major U.S. Top-Down Frand Royalty Decision, Jorge L. Contreras
Utah Law Faculty Scholarship
On December 21, 2017, the U.S. District Court for the Central District of California released its long awaited Memorandum of Findings of Fact and Conclusions of Law in TCL Communications v. Ericsson. In a lengthy and carefully crafted decision, Judge James Selna sets forth some important new points regarding the calculation of fair, reasonable and non-discriminatory (FRAND) royalties for standardsessential patents (SEPs). Among other things, the decision offers a strong endorsement of “top down” methodologies for the calculation of SEP royalties, and makes significant use of the non-discrimination (ND) prong of the FRAND commitment in arriving at a FRAND royalty …
The Risk Of An Anti-Consumer Cfpb, Christopher L. Peterson
The Risk Of An Anti-Consumer Cfpb, Christopher L. Peterson
Utah Law Faculty Scholarship
The risks of an anti-consumer CFPB go beyond just those cases currently under investigation. America has a massive financial sector that is constantly evolving and reinventing itself. This striving for innovation and efficiency is, of course, one of the American financial system’s great advantages. Nevertheless, the Sun-Tzu-worshipping, MBA-wielding financiers that use boilerplate consumer credit contracts as weapons in their endless market-share battles are paying attention to what the agency is doing—and more importantly, to what it is not doing. A chilled CFPB law enforcement program will embolden the consumer finance industry to roll out more misleading advertising, more deceptive sales …
Eu Sep Communication Summary And Commentary - Tilec 2nd Conference On Competition, Standardization And Innovation, Jorge L. Contreras
Eu Sep Communication Summary And Commentary - Tilec 2nd Conference On Competition, Standardization And Innovation, Jorge L. Contreras
Utah Law Faculty Scholarship
These slides briefly summarize the main points of the European Commission's Nov. 29, 2017 Communication on Standards Essential Patents (SEPs)
Policy Paper: The Need To Enhance Victims’ Rights In The Florida Constitution To Fully Protect Crime Victims’ Rights, Paul Cassell, Margaret Garvin
Policy Paper: The Need To Enhance Victims’ Rights In The Florida Constitution To Fully Protect Crime Victims’ Rights, Paul Cassell, Margaret Garvin
Utah Law Faculty Scholarship
Given the emerging consensus concerning victims' rights as reflected in many state constitutions as well as in federal law, Florida should not simply rest on the nearly thirty-year-old provison currently in its constitution. Instead, Florida should, through its established and recognized procedures, expand the protections contained in its provision to cover the rights reflected in provisions enacted across the country and reflected in Marsy's Law.
Choosing Corporations Over Consumers: The Financial Choice Act Of 2017 And The Cfpb, Christopher L. Peterson
Choosing Corporations Over Consumers: The Financial Choice Act Of 2017 And The Cfpb, Christopher L. Peterson
Utah Law Faculty Scholarship
The Financial Choice Act of 2017 is appropriately named in at least one sense: its proposed restrictions on the authority of the Consumer Financial Protection Bureau reflect a choice by the House of Representatives to protect financial companies at the expense of consumers. This choice is borne out by the data. As this empirical review of CFPB enforcement cases demonstrates, nearly all of the relief provided to American consumers in CFPB enforcement cases arose where a bank, credit union, or other finance company deceived their customers about a material aspect of their product or service. Between 2012 and 2016, the …
The Reference Assistant, Felicity Murphy, Annalee Hickman Moser
The Reference Assistant, Felicity Murphy, Annalee Hickman Moser
Utah Law Faculty Scholarship
In 2017, the authors conducted the third survey in an unofficial series about a type of law student employee that the authors call the reference assistant. This article analyzes the survey results, argues the advantages of the reference assistant, and details a case study of successful implementation of the reference assistant model at the BYU Law Library.
Reading Alexander V. Choate Rightly: Now Is The Time, Leslie Francis, Anita Silvers
Reading Alexander V. Choate Rightly: Now Is The Time, Leslie Francis, Anita Silvers
Utah Law Faculty Scholarship
Whatever happens to the Affordable Care Act (ACA) over the next few years, it is fair to assume that state Medicaid programs will be subjected to cost control measures. Despite the recent deployment of substantial arguments to the contrary, the belief still persists that the Supreme Court’s decision in Alexander v. Choate over thirty years ago stands for the proposition that disability anti-discrimination law does not impose requirements on the structure of Medicaid benefits. This belief is misleading at best. In this article, we challenge the access/content distinction and the straitened interpretation of Alexander v. Choate that has resulted from …
The Supreme Court's Last 30 Years Of Federal Indian Law: Looking For Equilibrium Or Supremacy?, Alexander Tallchief Skibine
The Supreme Court's Last 30 Years Of Federal Indian Law: Looking For Equilibrium Or Supremacy?, Alexander Tallchief Skibine
Utah Law Faculty Scholarship
Since 1831, Indian nations have been viewed as Domestic Dependent Nations located within the geographical boundaries of the United States. Although Chief Justice John Marshall acknowledged that Indian nations had a certain amount of sovereignty, the exact extent of such sovereignty as well as the place of tribes within the federal system has remained ill-defined. This Article examines what has been the role of the Supreme Court in integrating Indian nations as the third Sovereign within our federalist system. The Article accomplishes this task by examining the Court’s Indian law record in the last 30 years. The comprehensive survey of …
The Caa Motor Vehicle Inspection And Maintenance Program: Is It Cost Effective?, Arnold W. Reitze Jr.
The Caa Motor Vehicle Inspection And Maintenance Program: Is It Cost Effective?, Arnold W. Reitze Jr.
Utah Law Faculty Scholarship
Under the Clean Air Act, state-run vehicle inspection and maintenance (I/M) programs aim at preventing both manufacturers and consumers from circumventing or tampering with emissions control technology. Recent manufacturer cheating scandals, however, were detected by means other than I/M programs, and much I/M enforcement has been targeted at relatively low-level offenses. This Article traces the evolution of the I/M program and examines whether it currently provides benefits greater than its costs to vehicle owners, using Utah’s Wasatch Front (which includes Salt Lake City) to illustrate how the program operates in practice. It concludes that there is little current information to …
Climate Change And Common But Differentiated Responsibilities For The Ocean, Robin Kundis Craig
Climate Change And Common But Differentiated Responsibilities For The Ocean, Robin Kundis Craig
Utah Law Faculty Scholarship
Nations’ impacts on the ocean and their impacts on climate change are linked, especially given the synergistic interactions among these impacts on the two largest global commons—the atmosphere and the ocean. This article argues that climate change mitigation law, as represented internationally by the United Nations Framework Convention on Climate Change and its follow-on agreements, can better reflect nations’ broader Common but Differentiated Responsibilities (CBDR) by taking ocean impacts into account—in particular, contributions to ocean acidification and to marine fishing.
Erisa And Graham-Cassidy: A Disaster In Waiting For Employee Health Benefits And For Dependents Under 26 On Their Parents’ Plans, Leslie Francis
Erisa And Graham-Cassidy: A Disaster In Waiting For Employee Health Benefits And For Dependents Under 26 On Their Parents’ Plans, Leslie Francis
Utah Law Faculty Scholarship
Graham Cassidy § 105 would repeal the ACA “employer mandate”. Although its sponsors claim that the bill will give states a great deal of flexibility, it will do nothing to help states ensure that employers provide their employees with decent health insurance; quite the reverse. It will also give employers the freedom to ignore the popular ACA requirement that allows children up to age 26 to receive coverage through their parent’ plans, at least when their parents get health insurance from their employers. Here’s why.
Tax-Deductible Conservation Easements And The Essential Perpetuity Requirements, Nancy Mclaughlin
Tax-Deductible Conservation Easements And The Essential Perpetuity Requirements, Nancy Mclaughlin
Utah Law Faculty Scholarship
Property owners who make charitable gifts of perpetual conservation easements are eligible to claim federal charitable income tax deductions. Through this tax-incentive program the public is investing billions of dollars in easements encumbering millions of acres nationwide. In response to reports of abuse in the early 2000s, the Internal Revenue Service (Service) began auditing and litigating questionable easement donation transactions, and the resulting case law reveals significant failures to comply with the deduction’s requirements. Recently, the Service has come under fire for enforcing the deduction’s “perpetuity” requirements, which are intended to ensure that the easements will protect the subject properties’ …
The Anti-Suit Injunction - A Transnational Remedy For Multi-Jurisdictional Sep Litigation, Jorge L. Contreras, Michael A. Eixenberger
The Anti-Suit Injunction - A Transnational Remedy For Multi-Jurisdictional Sep Litigation, Jorge L. Contreras, Michael A. Eixenberger
Utah Law Faculty Scholarship
Litigation concerning standards-essential patents (SEPs) has become increasingly global, with parallel litigation occurring over the same issues in multiple jurisdictions throughout North America, Europe and Asia. As a result, litigants have sought mechanisms to coordinate these actions both to manage costs and to avoid inconsistent and incompatible results. One little-known procedural mechanism that has long been available to manage multi-jurisdictional litigation, and which is growing in popularity in SEP disputes, is the anti-suit injunction.
An anti-suit injunction is an interlocutory remedy issued by a court in one jurisdiction which prohibits a litigant from initiating or continuing parallel litigation in another …
Hate Speech On Social Media, Amos N. Guiora, Elizabeth Park
Hate Speech On Social Media, Amos N. Guiora, Elizabeth Park
Utah Law Faculty Scholarship
This essay expounds on Raphael Cohen-Almagor’s recent book, Confronting the Internet’s Dark Side, Moral and Social Responsibility on the Free Highway, and advocates placing narrow limitations on hate speech posted to social media websites. The Internet is a limitless platform for information and data sharing. It is, in addition, however, a low-cost, high-speed dissemination mechanism that facilitates the spreading of hate speech including violent and virtual threats. Indictment and prosecution for social media posts that transgress from opinion to inciteful hate speech are appropriate in limited circumstances. This article uses various real-world examples to explore when limitations on Internet-based hate …
Reform Or Ruin? Proposals To Amend Section 101, Jorge L. Contreras
Reform Or Ruin? Proposals To Amend Section 101, Jorge L. Contreras
Utah Law Faculty Scholarship
No abstract provided.
A New Perspective On Frand Royalties: Unwired Planet V. Huawei, Jorge L. Contreras
A New Perspective On Frand Royalties: Unwired Planet V. Huawei, Jorge L. Contreras
Utah Law Faculty Scholarship
In Unwired Planet v. Huawei, Mister Justice Colin Birss of the UK High Court of Justice (Patents) has issued a detailed and illuminating opinion regarding the assessment of royalties on standards-essential patents (SEPs) that are subject to FRAND (fair, reasonable and non-discriminatory) licensing commitments. Among the important and potentially controversial rulings in the case are: (1) there is but a single FRAND royalty rate applicable to any given set of SEPs and circumstances, (2) neither a breach of contract nor a competition claim for abuse of dominance will succeed unless a SEP holder’s offer is significantly above the true FRAND …
How Photographs Infringe, Terry S. Kogan
How Photographs Infringe, Terry S. Kogan
Utah Law Faculty Scholarship
Courts and commentators have lavished attention on the question of what makes a photograph original and entitled to copyright protection. Far less attention has been devoted to the issue of how photographs infringe. This is the first Article to systematically explore the different ways in which a photograph can steal intellectual property. Photographs can infringe in two ways: by replication and by imitation. A photograph infringes by replication when, without permission, a photographer points her camera directly at a copyright-protected work—a sculpture, a painting, another photograph—and clicks the shutter. A photograph can also infringe by imitation. In such cases, the …
Essentiality And Standards-Essential Patents, Jorge L. Contreras
Essentiality And Standards-Essential Patents, Jorge L. Contreras
Utah Law Faculty Scholarship
As creatures of policy language, different SDO definitions of essentiality must be given interpretive deference. Nevertheless, as scholarship and case law in this area expands, a number of common themes emerge in the interpretation of essentiality requirements. One such theme is the economic equation of essentiality with non-substitutability that has arisen in the context of patent pools. Another is the blurred divide between commercial and technical essentiality. A third is the practical necessity of assessing essentiality when hundreds of potentially essential patent claims are at issue. These issues, coupled with the recognized phenomenon of over-declaration, suggests that more efficient, rapid …
The Bail Book: A Comprehensive Look At Bail In America's Criminal Justice System - Introduction, Shima Baughman
The Bail Book: A Comprehensive Look At Bail In America's Criminal Justice System - Introduction, Shima Baughman
Utah Law Faculty Scholarship
Mass incarceration is one of the greatest social problems facing the United States today. America incarcerates a greater percentage of its population than any other country and is one of only two countries that requires arrested individuals to pay bail to be released from jail while awaiting trial. After arrest, the bail decision is the single most important cause of mass incarceration, yet this decision is often neglected since it is made in less than two minutes. Shima Baradaran Baughman draws on constitutional rights and new empirical research to show how we can reform bail in America. Tracing the history …
Gloucester County School Board V. G.G. : Brief Of Amicus Curiae In Support Of Respondent, Terry S. Kogan
Gloucester County School Board V. G.G. : Brief Of Amicus Curiae In Support Of Respondent, Terry S. Kogan
Utah Law Faculty Scholarship
The sex-segregated public restroom, first man- dated by laws in the late nineteenth century, has be- come a pervasive architectural feature of contemporary America that is unlikely to disappear any time soon. Title IX and its implementing regulations recognize, and do not seek to alter, this arrangement. Understanding the origins of this social convention in the United States, however, illustrates that separating such facilities by sex was not simply a natural, neutral response to anatomical differences, but rather an ideological cultural response that reflected and reinforced the prevailing gender norms of the time.
Will Congress Remove Consumer Credit “Seat Belts”?, Christopher L. Peterson
Will Congress Remove Consumer Credit “Seat Belts”?, Christopher L. Peterson
Utah Law Faculty Scholarship
The CFPB has faced criticism not because it is out of control, but because it is effective. If the CFPB were bringing crazy cases, hundreds of federal judges appointed by Republican and Democratic presidents would simply dismiss the agency’s complaints. And some of those judges would enjoy doing so. Too many of America’s financiers are betting it will be easier to strangle the watchdog than actually follow the rules or pay up when they make a mistake. And worse, too many politicians, pundits, and astroturf-think-tanks-for-the-wealthy want to score political points by taking down what may be the best recent example …
Emerging Shadows In National Solar Policy? Nevada's Net Metering Transition In Context, Lincoln L. Davies, Sanya Carley
Emerging Shadows In National Solar Policy? Nevada's Net Metering Transition In Context, Lincoln L. Davies, Sanya Carley
Utah Law Faculty Scholarship
Nevada recently overhauled its net energy metering policy, and instituted a new net billing program in its place. Nevada’s decision received significant attention across the nation, and raised the question whether other states will follow suit. This article reviews the process and decisions in Nevada that led to these policy changes, and puts Nevada’s experience in the context of national solar industry and net metering policy trends. Observing that pressure to change net metering policies is likely to increase across the U.S., the article concludes with insights that other states can glean from Nevada’s experience.
Water Law And Climate Disasters, Robin Kundis Craig
Water Law And Climate Disasters, Robin Kundis Craig
Utah Law Faculty Scholarship
Climate and water supply have always been intimately connected. As a result, a given society’s water law generally reflects climatic realities, including its most common climate disasters. In the future, however, water-related climate disasters are likely to increase in frequency and perhaps even change in kind, because some of the most-predicted consequences of climate change are impacts on water supply, although those impacts will vary from region to region. This chapter examines the roles of water law in addressing three different forms of water-related climate disasters: drought, flooding, and coastal inundation. Each discussion begins with a closer examination of the …
Zero Sum Games In Pollution Control: The Games We Create Versus The Games We Discover, Robin Kundis Craig
Zero Sum Games In Pollution Control: The Games We Create Versus The Games We Discover, Robin Kundis Craig
Utah Law Faculty Scholarship
Environmental pollution lands us in zero-sum games. The more interesting question is: Do we discover these games? Or do we invent them? In other words, are there hard environmental limits on how much anthropogenic pollution natural systems can absorb, which we eventually discover? Or do we create zero-sum games for pollution purely as a result of our own goals for both ecosystems and social-ecological systems (SESs, a recognition that human societies are both part of and depend upon functioning ecosystems)? In fact, we do both, and the intersection of the two in a climate change era is worth examination.
Technical Standards, Standards-Setting Organizations And Intellectual Property: A Survey Of The Literature (With An Emphasis On Empirical Approaches), Jorge L. Contreras
Technical Standards, Standards-Setting Organizations And Intellectual Property: A Survey Of The Literature (With An Emphasis On Empirical Approaches), Jorge L. Contreras
Utah Law Faculty Scholarship
Important theoretical work relating to standards has been done in the areas of SSO dynamics, firm behavior, market effects of patents, and royalty pricing. This work has been supplemented by a significant body of research and empirical data on the acquisition and disclosure of patents within SSOs, particularly in the ICT sector. Several important catalogs and analyses of SSO patent policies now exist, together with rich databases of SSO membership and policy data. Despite this large body of literature, there are numerous areas at the confluence of intellectual property and standardization that warrant further investigation. These include: the influence and …
Labeling Genetically-Engineered Foods: An Update From One Of The Front Lines Of Federalism, Robin Kundis Craig
Labeling Genetically-Engineered Foods: An Update From One Of The Front Lines Of Federalism, Robin Kundis Craig
Utah Law Faculty Scholarship
Consumers in the United States have increasingly demanded that manufacturers of foods that are either directly genetically engineered or that contain genetically engineered ingredients (“GE foods”) label their products as such. In general, federal law, in the form of the Food, Drug, and Cosmetic Act, lodges primary authority for approving and regulating the labeling of GE foods in the Food and Drug Administration (FDA), but the FDA has been reluctant to mandate labeling of GE foods. In light of this federal regulatory void, states have proposed their own GE food labeling requirements, generating protests from manufacturers and federalism challenges in …
The Transfer Of Public Lands Movement: Taking “Back” Lands That Were Never Theirs And Other Examples Of Legal Falsehoods And Revisionist History, John C. Ruple
Utah Law Faculty Scholarship
Like the sagebrush rebels before them, today’s transfer advocates feel left behind by evolving public land management priorities that depart from their vision of how the West should be managed. The TPLA and its progeny appeal to that pain and frustration, but offer only empty answers to real questions, and in so doing, distract us from opportunities to address the root causes of frustration over public land management. The law is clear, the federal government possesses plenary power over the public domain, including the power to retain the land in federal ownership, and to do so indefinitely. The federal government …
Putting Resilience Theory Into Practice: The Example Of Fisheries Management, Robin Kundis Craig
Putting Resilience Theory Into Practice: The Example Of Fisheries Management, Robin Kundis Craig
Utah Law Faculty Scholarship
By acknowledging a world of continuous change and reduced human control over nature, resilience theory thus suggests a wide range of potential changes to marine fisheries management for a changing ocean. Even the most modest of these, however, should inspire comprehensive amendments to both domestic and international fisheries law, particularly to their emphases on MSY. Full incorporation of resilience thinking, in turn, demands a longer-term and system-based perspective on marine management, empowering humans to make choices now to strengthen the ecological resilience of marine ecosystems to the changes that are still coming, increasing the chances that the ocean will remain …
Making Sense Of The Rapidly Evolving Legal Landscape Of Solar Energy Support Regimes, Lincoln L. Davies
Making Sense Of The Rapidly Evolving Legal Landscape Of Solar Energy Support Regimes, Lincoln L. Davies
Utah Law Faculty Scholarship
Change defines the solar industry today. Photovoltaic (PV) panels have become far more prevalent globally; prices have fallen precipitously; and the rise of solar is causing shock waves throughout the electricity sector, with advocates pushing for “grid parity” and incumbents fearing a utility “death spiral.” Much attention has been paid to these shifts. Much less focus has been put on the dramatic changes now taking place in the legal instruments used to promote solar power. These changes are just as critical — and are intrinsically intertwined with — the evolution of the solar energy industry itself. As one set of …
The Significance Of Injustice For Bioethics, Leslie P. Francis
The Significance Of Injustice For Bioethics, Leslie P. Francis
Utah Law Faculty Scholarship
In my judgment, applied ethics is ineluctably non-ideal and partial compliance theory. It’s ethics in the context of unjust institutions and conduct. Theorizing or teaching about concepts such as autonomy in abstraction from this recognition is misleading. Instead, questions such as how to realize autonomy should be framed in the context of incomplete justice. There’s much to be learned from the past nearly 50 years of discussions of justice to help with this enterprise, but they are too little known or discussed in much contemporary bioethics.