Law Commons^™

At&T V. Microsoft: Is This A Case Of Deepsouth Déjà Vu?, Christopher R. Rogers

Maine Law Review

It has been stated many times by various courts that the patent laws of the United States do not reach beyond the borders of the United States. In an age of expanding world commerce, the territorial reach of our patent laws has sometimes made it difficult for U.S. inventors to meaningfully protect their intellectual property. For example, the Supreme Court holding in Deepsouth Packing Co. v. Laitram Corp. opened up a loophole that allowed unlicensed U.S. manufacturers to essentially export patented inventions, thereby trampling on the patent rights of U.S. patent holders selling to foreign markets. The Deepsouth loophole has …

Lin V. United States Department Of Justice: The Circuits Split On The Issue Of Whether Marital Status Is Dispositive Of Asylum Eligibility In The United States For Individuals Who Suffer Persecution Under China's Coercive Family Planning Practices, Sara E. Stewart

Maine Law Review

In Lin v. United States Department of Justice, the United States Court of Appeals for the Second Circuit remanded three consolidated appeals to the Board of lmmigration Appeals (BIA) for reconsideration. Petitioners Shi Liang Lin, Xian Zou, and Zhen Hua Dong applied for asylum based on persecution they and their unmarried girlfriends suffered under the coercive family planning practices employed by the People's Republic of China. Retaining jurisdiction over the petitions after re-disposition by the BIA, the Second Circuit demanded that the BIA clarify two issues regarding its interpretation of United States' immigration laws. First, the Second Circuit insisted on …

Usada V. Montgomery: Paving A New Path To Conviction In Olympic Doping Cases, Paul J. Greene

Maine Law Review

In United States Anti-Doping Agency v. Montgomery, a Court of Arbitration for Sport (CAS) Tribunal found Olympic track and field gold medalist and former world record holder Tim Montgomery (Montgomery) guilty of doping. The Tribunal determined, after considering the evidence presented by the United States Anti-Doping Agency (USADA), that Montgomery had taken THG, a prohibited performance enhancing drug known in colloquial parlance as "the Clear." As punishment, Montgomery was banned from competition for two years, stripped of his on-track achievements dating back to March 200l, and ordered to repay an estimated $1 million in earnings. Montgomery is an extraordinary case …

China's Judiciary: Current Issues, Jianli Song

Maine Law Review

Since 1978, China has been engaged in a major reform program of economic modernization and growing openness to the outside world. The movement towards a market economy has resulted in impressive economic growth. It has also led to social change, including increasing pressure from segments of the population for greater participation in decision making and respect for human rights. The Chinese government is taking steps towards the rule of law. The legal reforms being carried out go beyond the economic sphere, and also gradually will affect the relationship between individuals and the state. Dialogue with the international community has broadened …

Trinko: A Kinder, Gentler Approach To Dominant Firms Under The Antitrust Laws?, Edward D. Cavanagh

Maine Law Review

Section 2 of the Sherman Act prohibits monopolization, attempted monopolization and conspiracy to monopolize. The § 2 prohibitions are rooted in concerns "that possession of unchallenged economic power deadens initiative, discourages thrift and depresses energy; that immunity from competition is a narcotic, and rivalry is a stimulant, to industrial progress; that the spur of constant stress is necessary to counteract an inevitable disposition to let well enough alone." At the same time, courts have recognized that size alone cannot be the basis of condemnation under § 2, for as Learned Hand observed in Alcoa, "[t]he successful competitor, having been urged …

Consent Decrees, The Enlightenment, And The "Modern" Social Contract: A Case Study From Bates, Olmstead, And Maine's Separation Of Powers Doctrine, Dana E. Prescott

Maine Law Review

On December 17, 2004, the Maine Supreme Judicial Court, sitting as the Law Court, issued its decision in Bates v. Department of Behavioral & Developmental Services, which affirmed in part, and vacated in part, the decision of Superior Court Chief Justice Nancy Mills, and remanded for further proceedings in the so-called Augusta Mental Health Institute (AMHI) Consent Decree case. In the underlying litigation, patients at the mental health hospital filed motions for sanctions and findings of contempt alleging the State of Maine failed to comply with the 1990 Consent Decree and incorporated settlement agreement. After a seventeen-day trial on whether …

Alexis De Tocqueville And American Constitutional Law: On Democracy, The Majority Will, Individual Rights, Federalism, Religion, Civic Associations And Originalist Constitutional Theory, Philip C. Kissam

Maine Law Review

Count Alexis de Tocqueville's Democracy in America has been said to be "at once the best book ever written on democracy and the best book ever written on America. " This praise should perhaps be tempered by consideration of Tocqueville' s purposes and the historical circumstances within which he worked and understood both democracy and America. Yet Tocqueville's insights into American democracy as of the 1830s undoubtedly constitute a rich source of constitutional thought-either as support for particular constitutional principles or as constitutional ideas that should be contested. In a recent notable instance, John McGinnis has argued that Tocqueville's ideas …

Lincoln, The Constitution Of Necessity, And The Necessity Of Constitutions: A Reply To Professor Paulsen, Michael Kent Curtis

Maine Law Review

The George W. Bush administration responded to the terrorist attacks of September 11th with far-reaching assertions of a vast commander-in-chief power that it has often insisted is substantially free of effective judicial or legislative checks. As Scott Shane wrote in the December 17, 2005 edition of the New York Times, "[f]rom the Government's detention of [American citizens with no or severely limited access to courts, and none to attorneys, families, or friends] as [alleged] 'enemy combatants' to the just disclosed eavesdropping in the United States without court warrants, the administration has relied on an unusually expansive interpretation of the president's …

Education Funding In Maine In Light Of Zelman And Locke: Too Much Play In The Joints?, Sarah M. Lavigne

Maine Law Review

The United States Supreme Court has struggled with the countervailing directives of the Free Exercise Clause and the Establishment Clause for decades. One area in which this battle has been particularly contentious is the issue of public funding of religious schools. On one hand, opponents argue that such funding is an impermissible co-mingling of church and state, thereby violating the Establishment Clause. Meanwhile, proponents of public funding of religious schools argue that, to withhold funding from religious schools would place a burden on those wishing to send their children to religious schools, thereby impermissibly preventing individuals from practicing their faith …

New Hampshire Motor Transport Association V. Rowe: Federal Preemption Of Maine's Attempt To Regulate Internet Sales Of Tobacco To Minors, Nathaniel D. Bryans

Maine Law Review

In New Hampshire Motor Transport Ass'n v. Rowe, trade associations sought a declaratory judgment that the Federal Aviation Administration Authorization Act of 1994 (FAAAA) preempts a Maine law enacted to facilitate collection of state taxes and restrict the delivery of tobacco products to minors (the Tobacco Delivery Law). The district court granted the plaintiffs' second motion for summary judgment in part, finding that a single provision of little independent consequence escaped preemption, and enjoined enforcement of the preempted provisions. The state appealed to the United States Court of Appeals for the First Circuit, which held that most of Maine's Tobacco …

Defining "Disability" Under The Maine Human Rights Act After Whitney V. Wal-Mart Stores, Inc., Michael J. Anderson

Maine Law Review

In Whitney v. Wal-Mart Stores, Inc., the Maine Supreme Judicial Court, sitting as the Law Court, was asked to determine whether the Maine Human Rights Act (MHRA) requires plaintiffs alleging disability discrimination to show that their condition substantially limits one or more major life activities. In determining that the MHRA does not require such a showing, the court effectively established that the MHRA was intended to protect a much broader range of medical conditions than its federal counterparts, the Rehabilitation Act of 1973 (Rehabilitation Act) and the Americans with Disabilities Act of 1990 (ADA). In so doing, the Whitney court …

Assigning Infringement Claims: Silvers V. Sony Pictures, Heather B. Sanborn

Maine Law Review

The Copyright Act establishes protection for original, creative works of authorship as a means of providing ex ante incentives for creativity. But how real is that protection? Imagine that you have written a script and managed to have your play produced in a local community theater. A few years later, you find that a major Hollywood studio has taken your script, adapted it slightly, and made it into the next summer blockbuster, raking in millions without ever obtaining a license from you. Of course, you can sue them for infringement. But how much will that litigation cost and what are …

Rembrandts In The Research Lab: Why Universities Should Take A Lesson From Big Business To Increase Innovation, Kristen Osenga

Maine Law Review

Universities are typically considered to have two complementary goals: providing education and performing research. While the determination of which objective deserves primacy has long been debated and is not within the scope of this paper, it is indisputable that productive research serves to further a university's goal of education, both directly by adding to the body of knowledge to be dispensed to the students and indirectly by increasing the university's prestige, thereby attracting lucrative grants, quality students, and competitive faculty members to the university. It is, at the very least, safe to say that research is the heart of the …

Open Source Approaches In Biotechnology: Utopia Revisited, Yann Joly

Maine Law Review

Tracing its origin to Greek antiquity, intellectual property has become an institution in modern legal systems worldwide. This growing importance of intellectual property was confirmed with the 1994 adoption of the Trade-Related Aspects of Intellectual Property Rights Agreement by the World Trade Organization (WTO), which harmonized the rules of intellectual property amongst the various members of the international community on the model of developed countries. However enshrined in the legal tradition, intellectual property law has also had its share of detractors and has recently come under severe criticism. The exercise of intellectual property rights in such diverse fields of creation …

Road Map To Revolution? Patent-Based Open Science, Lee Petherbridge

Maine Law Review

The contemporary approach to innovation in the life sciences relies on a patent-based proprietary model. Limitations on patent rights and business concerns often focus innovation to markets where the near-term monetary rewards are highest. This is “efficient” under an austere understanding of the term, but the proprietary model can be problematic from a practical perspective because it may not focus innovation to certain deserving markets. This Article contends that the property rights conferred by patent law may still serve as a positive base for innovation directed to underserved markets. The comparatively strong rights conferred by patent law provide upstream or …

A Virtue-Centered Approach To The Biotechnology Commons (Or, The Virtuous Penguin), David W. Opderbeck

Maine Law Review

The instrumentalist emphasis of the current biotechnology intellectual property rights (IPR) debate is not surprising. In the American tradition, intellectual property law has long been justified primarily by instrumentalist concerns. Thomas Jefferson famously acceded to the “embarrassment of patent and copyright monopolies because he believed a limited monopoly would encourage the production of new scholarship and inventions. The framers' willingness to allow this embarrassment for the greater good is enshrined in the Intellectual Property Clause of the U.S. Constitution. Countless judicial opinions refer to intellectual property law as a tool that provides necessary incentives to creators and innovators. Intellectual property …

The Experimental Use Exception To Patent Infringement: Do Universities Deserve Special Treatment?, Elizabeth A. Rowe

Maine Law Review

Inventor Ivan owns a patent on a new Gizmo. He has spent a substantial portion of his time and resources to develop the Gizmo. He has also spent thousands of dollars on his patent attorneys to obtain the patent. Ivan had to wait over two years for the patent application to be processed and approved. But it was all worth it. Our patent laws grant Ivan a negative right-the right to exclude others from practicing his invention during the period of the patent. The local university is using Ivan's invention to further its own research. The university's research will allow …

Adoption Of The Bayh-Dolye Act In Developed Countries: Added Presure For A Broad Research Exemption In The United States?, Michael S. Mireles

Maine Law Review

Numerous developed countries, most if not all members of the Organization of Economic Cooperation and Development (OECD), including Japan, France, the United Kingdom, Germany, Austria, Denmark, Norway, Portugal, Spain, and Finland, have or are considering adopting legislation similar to the Bayh-Dole Act. These countries apparently believe that passage of legislation similar to the Bayh-Dole Act will lead to the transfer of government funded research results from the university laboratory to the marketplace and other economic activity. In the United States, the birthplace of the Bayh-Dole Act (the Act), it is not entirely clear whether its passage is the direct result …

Editorial Board Vol. 59 No.2 (2007), Heather B. Sanborn Editor-In-Chief

Maine Law Review

No abstract provided.

Boyd Briefs - Nov. 2, 2017, 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, 2017-11-02, Santa Clara University

The Santa Clara

No abstract provided.

1850 – Report On The Subject Of Land Titles In California Made In Pursuance Of Instructions From The Secretary Of State And The Secretary Of Interior, By William Carey Jones: Together With A Translation Of The Principal Laws On That Subject, And Some Other Papers Relating Thereto

Miscellaneous Documents and Reports

An 1850 report prepared by William Carey Jones at the request of the Secretaries of State and Interior. In the first half of the report, Jones described the method by which land titles were created from the first inception to the perfect title as practiced by Mexico within the Province of California, as well as the history of the issuance of land grants subsequent to the independence of Mexico from Spain and the process by which that was accomplished. Jones provides a list of records and memoranda of grants found in the government archives of Monterey. The report addressed the …

South Dakota V. Wayfair, Inc.: Brief Of Amici Curiae Law Professors And Economists In Support Of Petitioner, Reuven S. Avi-Yonah

Appellate Briefs

Amici are professors of tax law and economics at universities across the United States. As scholars and teachers, they have considered the economic consequences of this Court's decision in Quill Corp. v. North Dakota, 504 U.S. 298 (1992), and have concluded that Quill's dormant Commerce Clause holding should be overruled. Amici join this brief solely on their own behalf and not as representatives of their universities. A full list of amici appears in Appendix A.

While the Supreme Court is rightly reluctant to overrule its own precedents under any circumstances, the force of stare decisis is less powerful in …

The End Of Bargaining In The Digital Age, Saul Levmore, Frank Fagan

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

Constructing Recidivism Risk, Jessica Eaglin

AI-DR Collection

Courts increasingly use actuarial—meaning statistically derived—information about a defendant’s likelihood of engaging in criminal behavior in the future at sentencing. This Article examines how developers construct the tools that predict recidivism risk. It exposes the numerous choices that developers make during tool construction with serious consequences to sentencing law and policy. These design decisions require normative judgments concerning accuracy, equality, and the purpose of punishment. Whether and how to address these concerns reflects societal values about the administration of criminal justice more broadly. Currently, developers make these choices in the absence of law, even as they face distinct interests that …

Who Are The Real Cyberbullies: Hackers Or The Ftc? The Fairness Of The Ftc’S Authority In The Data Security Context, Jaclyn K. Haughom

Catholic University Law Review

As technology continues to be an integral part of daily life, there lies an ever-increasing threat of the personally identifiable information of consumers being lost, stolen, or accessed without authorization. The Federal Trade Commission (FTC) is the U.S. government’s primary consumer protection agency and the country’s lead enforcer against companies subject to data breaches. Although the FTC lacks explicit statutory authority to enforce against data breaches, the Commission has successfully relied on Section 5 of the FTC Act (FTCA) to exercise its consumer protection power in the data security context. However, as the FTC continues to take action against businesses …

The Next Step In Civil Asset Forfeiture Reform: Passing The Civil Asset Forfeiture Reform Act Of 2014, Daniel Reed

Catholic University Law Review

Civil asset forfeiture is an operation of legal fiction that enables the government to seize property without an underlying conviction of the property owner. Federal authorities bring thousands of civil asset forfeiture cases annually, often against the property of owners who have not been charged with a crime. Such cases can result in unjust outcomes and denials of due process to property owners. To address this controversy, Representative Tim Walberg proposed several reforms to federal civil asset forfeiture laws known as the Civil Asset Forfeiture Reform Act of 2014 (CAFRA 2014).

After discussing the history of civil asset forfeiture, this …

The Diversity Rationale For Affirmative Action In Military Contracting, Hugh B. Mcclean

Catholic University Law Review

Section 8(a) of the Small Business Act (the ‘‘8(a) program’’) is a federal contracting program that permits the government to award certain contracts to members of designated racial groups that own small businesses. Courts have denied facial challenges to the program, but have upheld challenges alleging the program is unconstitutional as applied to particular industries. As a result, the military is banned from using the program in at least one industry, and inherits significant risk when using the program in other industries. The government has never articulated a diversity rationale to justify the use of race-conscious measures in the military …

Faith-Based Law Schools: Making Mission Matter, Veryl Victoria Miles

Catholic University Law Review

A faith-based law school offers unique values to the legal profession and larger community. However, this faith-based identity requires attention by the dean, faculty, administration, student body, and community. Without attention to a faith-based identity, a law school can quickly lose its religious uniqueness.

This Article makes the case that a faith-based law school needs to consider “the essentials” to making its mission matter. First, the faith-based school must make a mission statement that incorporates its church’s religious values and traditions. Second, the faith-based law school needs to create a mission-based environment. This environment can only be achieved if the …

Every Silver Lining Has A Cloud: Defensive Pessimism In Legal Education, Emily Zimmerman, Casey Laduke

Catholic University Law Review

This Article presents the results of the first empirical research project to investigate law students’ use of defensive pessimism. Previous researchers have suggested that defensive pessimism may benefit law students academically. Defensive pessimism is a strategy that involves setting low expectations and reflecting extensively on what could go wrong in connection with a future event in order to manage anxiety and improve performance. However, up until now, law students’ use of defensive pessimism has not been empirically studied.

We investigated law students’ use of defensive pessimism. Contrary to the suggestions of other scholars, we did not find statistically significant relationships …