Law Commons^™

What The Supreme Court Is Likely To Do In The Presently Pending Case Google V. Oracle, Jennifer Campbell

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

Critical Issues In Policing Ccj 480, Karen Morse

Library Impact Statements

No abstract provided.

Testimony In Support Of B23-0887, The "Expanding Student Access To Period Products Act Of 2020" Before The Committee Of The Whole And The Committee On Education, Marcy L. Karin, Galina M. Abdel Aziz

D.C. Council Testimony

No abstract provided.

Emily Hunsaker, Plaintiff/ Appellant V. American Healthcare Capital, Defendant/ Appellee. : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Appeal from Findings of Fact and Conclusions of Law and Rule 58Afinal Judgment of the Fourth Judicial District Court in and for Utah County, Spanish Fork Department, State of Utah. Trial Judge Jared Eldridge

ATTORNEYS FOR APPELLANTS, Justin D. Heideman (USB #8897), Justin R. Elswick (USB #9153)

ATTORNEYS FOR APPELLEE, Jere Reneer (USB #7967),

Week Of November 23, 2020 - November 27, 2020, Benjamin N. Cardozo School Of Law

Today at Cardozo 2020

Events occurring this week have been sponsored by:

• Black Law Students Association (BLSA)

Can David Really Beat Goliath? A Look Into The Anti-Competitive Restrictions Of Apple Inc. And Google, Llc, Emily Feeley

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

Autonomy And Precautions In The Law Of Armed Conflict, Eric Talbot Jensen

International Law Studies

Already a controversial topic, legal debate and broader discussions concerning the amount of human control required in the employment of autonomous weapons—including autonomous cyber capabilities—continues. These discussions, particularly those taking place among States that are Parties to the 1980 Certain Conventional Weapons Convention, reveal a complete lack of consensus on the requirement of human control and serve to distract from the more important question with respect to autonomy in armed conflict: under what conditions could autonomous weapons “select” and “attack” targets in a manner that complies with the law of armed conflict (LOAC).

This article analyzes the specific LOAC rules …

Wright W. Thurston; True North United Investments, Llc; Green United, Llc; Powerit Pte Ltd; Aloha Industries Group, Llc; Bcds Enterprise, Llc; And Instant Income, Inc. Plaintiffs/ Appellants, V. Block United, Llc; Fortecx, Inc.; Fca Partners, Llc; Craig Pickering; Crp Investment Trust; Craig Lewis; Jeff Jensen; Barry Dixon; Rodney Wilkinson; Wilkinson Legacy Trust; And Does 1-20; Defendants/ Appellees : Brief Of Appellee, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

On appeal from the Fourth Judicial District court, Utah County, Honorable Christine Johnson, District court Nos.190400207 and 190400209

B. Ray Zoll Chad C. Shattuck Jared W. Moss Attorneys for Appellants

Evan S. Strassberg Steven J. Joffee Attorneys for Appellees

Intellectual Property Law – What Happens After The “Vote-From-Home” Election?, Ryan Baal

Cardozo Arts & Entertainment Law Journal (AELJ) Blog

If Biden were to carry on with the Obama administration’s approach to intellectual property law, the America Invents Act of 2013 (AIA) would be the best place to start in analyzing how the president-elect might influence IP law over the coming years. At its core, the AIA transitioned the United States to a first-to-file system and modified the bars to patentability under the patent law statutes.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on November 23, 2020. The original post can be accessed via the Archived Link button above.

The Early Impact Of The Affordable Care Act Upon Colorectal Cancer Screening Utilization In Florida, Aldenise P. Ewing, Laura Baum, Rosalyn Roker, Marlene Joannie Bewa, Tali Schneider, Claudia F. Parvanta, Clement K. Gwede, Cathy D. Meade, Dinorah Martinez Tyson

Journal of Health Disparities Research and Practice

Background: Colorectal cancer is the second leading cause of cancer-related deaths in the United States. Although preventable and curable through screening, early detection and treatment, a lack of health insurance is a major obstacle to receiving colorectal cancer screening (CRCS). Despite the Affordable Care Act (ACA) increasing access to health insurance by mandating coverage of CRCS, disparities in utilization rates continue. Therefore, researchers sought to better understand ACA related facilitators and impediments that affect the utilization of CRCS and collect specific recommendations from healthcare professionals to increase screening utilization rates in Florida.

Methods: Researchers conducted in-depth interviews with …

Legal Ethics And Judicial Law Clerks: A New Doctrinal Account, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

Judicial law clerks are largely overlooked in the Canadian legal literature. This article provides a new doctrinal account of the ethical obligations of law clerks that is rooted in the fact that at least some of the major work of law clerks constitutes the practice of law—and thus that law clerks’ ethics are lawyers’ ethics. It argues that the lawyer’s duty to encourage respect for the administration of justice transposes some of the ethical obligations of the judge into professional obligations of the law clerk. The article also argues that the law societies’ regulatory and disciplinary jurisdiction over law clerks …

From Blockbuster To Big Brother: How An Increase In Mobile Phone Apps Has Led To A Decrease In Privacy Under The Video Privacy Protection Act, Carlee Rizzolo

Florida Law Review

Congress enacted the Video Privacy Protection Act (BPPA or the Act) in 1988 to protect consumers by prohibiting video tape service providers from knowingly disclosing their personally identifable information to any person, without first obtaining consent. The VPPA defines "consumer" as any renter, purchaser, or subscriber. However, the Act does not define the term "subscriber." Over the past thirty years, there has been a rapid increase in the use of downloadable apps that allow individuals to watch videos and other online content for free on their mobile phones. Does the sole act of downloading a free app onto a mobile …

Beyond Compare: A Codefendant's Prison Sentence As A Mitigating Factor In Death Penalty Cases, Jeffrey L. Kirchmeier

Florida Law Review

This Article addresses whether the U.S. Constitution requires courts to permit capital defendants to submit, during sentencing, the mitigating factor that a codefendant for the same murder was sentenced to prison instead of to death.

The U.S. Supreme Court has repeatedly stressed the important of mitigating factors in capital cases. For the most part, litigation since the reintroduction of capital punishment in the 1970s has clarified what circumstances are to be weighed as mitigating. But the Court has not addressed the current divide among lower courts regarding whether the Eighth Amendment requires courts to allow juries to consider a codefendant's …

The Territorial Reach Of Federal Courts, A. Benjamin Spencer

Florida Law Review

Federal courts exercise the sovereign authority of the United State when they assert personal jurisdiction over a defendant. As components of the national sovereign, federal courts' maximum territorial reach is determined by the Fifth Amendment's Due Process Clause, which permits jurisdiction over persons with sufficient minimum contacts with the federal courts limited to the territorial reach of the state in which they sit when they exercise personal jurisdiction in most cases? There is no constitutional or statutory mandate that so constrains the federal judicial reach. Rather, it is by operation of the Federal Rules of Civil Procedure—specifically Rule 4(k)—that federal …

Rural Resentment And Lgbtq Equality, Luke A. Boso

Florida Law Review

In 2015, the U.S. Supreme Court in Obergefell v. Hodges settled a decades-long national debate over the legality of same-sex marriage. Since Obergefell, however, local and state legislatures in conservative and mostly rural states have proposed and passed hundreds of anti-LGBTQ bills. Obergefell may have ended the legal debate over same-sex marriage, but it did not resolve the cultural divide. Many rural Americans, especially in predominately white communities, feel that they are under attack. Judicial opinions and legislation protecting LGBTQ people from discrimination are serious threats to rural dwellers because they conflict with several core tenets of rural identity: …

Forgotten But Not Forgiven: Remedies For Student Loan Debtors In Public Service, Andrew Goring

Florida Law Review

This Note identifies a timely issue with student loans and discusses potential remedies. Under the Public Service Loan Forgiveness program, borrowers of federal student loans who make 120 qualifying monthly payments while working in public service may have their loans forgiven. When a loan is forgiven, the borrower no longer has to pay the remaining balance of the debt. Since both the prevalence of student loans and the average student debt are increasing, loan forgiveness is an important opportunity for borrowers under the crushing debt of student loans. However, a Consumer Financial Protection Bureau report found a rising problem: Loan …

No Right To Counsel, No Access Without: The Poor Child’S Unconstitutional Catch-22, Lisa V. Martin

Florida Law Review

In the midst of the push for universal access to counsel in civil cases and the increasing proportion of litigants who represent themselves, a critical barrier to access to justice for children has been overlooked. Federal courts have created a catch-22 for child litigants. Children cannot bring claims themselves, so parents must bring the claims on their behalf. Federal courts refuse to allow parents to pursue these claims pro se, stating that parents cannot provide adequate legal representation. Yet, there is no right to counsel in civil cases, and these same courts typically conclude the children’s cases do not warrant …

The Kids Are Not Alright: Leveraging Existing Health Law To Attack The Opioid Crisis Upstream, Yael Cannon

Florida Law Review

The opioid crisis is now a nationwide epidemic, ravaging both rural and urban communities. The public health and economic consequences are staggering; recent estimates suggest the epidemic has contracted the U.S. labor market by over one million jobs and cost the nation billions of dollars. To tackle the crisis, scholars and health policy initiatives have focused primarily on downstream solutions designed to help those who are already in the throes of addiction. For example, the major initiative announced by the U.S. Surgeon General promotes the dissemination of naloxone, which helps save lives during opioid overdoses.

This Article argues that the …

Waiving Removal, Waiving Remand–The Hidden And Unequal Dangers Of Participating In Litigation, Joan Steinman

Florida Law Review

The law governing removal of cases to federal court and remand of cases from federal court has increasingly been codified. But what is not codified is left to courts, and courts have created bodies of law concerning waiver of the right to remove and waiver of the right to remand that are strongly skewed against plaintiffs and in favor of federal court adjudication, even in cases that raise only substantive state law issues. This a problem because there is no reason to believe that this development of the law is consistent with Congressional intent, or with an appropriate allocation of …

Etched In Stone: Historic Preservation Law And Confederate Monuments, Jess R. Phelps, Jessica Owley

Florida Law Review

This Article examines the current controversy regarding Confederate monuments. While many have focused on the removal of these commemorative objects, the legal framework regarding their protection has not been fully explored. This Article provides an in-depth understanding of the application of historic preservation laws to monument removal efforts and examines the impact of these federal, state, and local laws. The examination raises significant questions about the permanency of preservation laws generally. This Article considers how historic significance is evaluated and valued, noting the lack of flexibility and absence of mechanisms for reevaluating past protection decisions. This Article uses the Confederate …

Life In Jail For Misbehavior: Criminal Contempt And The Consequence Of Improper Classification, Kaley Ree Jaslow

Florida Law Review

Contempt is a crime that can be traced back to twelfth century England. It was an offense of disobedience that caused the obstruction of justice, and the punishment of such crimes was deeply important to the English justice system. Subsequent to the American Revolution, early American courts retained the use of contempt. Today, in the United States, criminal contempt is a federal crime under 18 U.S.C. § 401. Despite the federal code, actions that exemplify contempt are not specifically defined by statute. Judges are granted broad discretion in determining which actions are contemptuous and which are not. Moreover, federal criminal …

Positive Rights: The New York “Baby Aids Bill” As State-Created Danger, Aaron Badida

Florida Law Review

The New York “Baby AIDS Bill” created a requirement for mandatory, unblind testing of newborns for HIV. This law, and its associated regulatory infrastructure, is contrary to a number of deeply rooted substantive due process rights, including the right to refuse life-sustaining treatment and the right to privacy and bodily autonomy. When the state requires that a physician initiate care or treatment, the government exposes itself to liability under the state-created danger doctrine, particularly when resistance-prone conditions like HIV are involved. In this unique situation, the state’s requirement to initiate antiretroviral care without providing for its continuity puts infants living …

Reconceptualizing Criminal Justice Reform For Offenders With Serious Mental Illness, E. Lea Johnston

Florida Law Review

Roughly 14% of male inmates and 31% of female inmates suffer from one or more serious mental illnesses, such as schizophrenia, bipolar disorder, and major depressive disorder. Policymakers and the public widely ascribe the overrepresentation of offenders with serious mental illness in the justice system to the “criminalization” of the symptoms of this afflicted population. The criminalization theory posits that the criminal justice system has served as the primary agent of social control over symptomatic individuals since the closure of state psychiatric hospitals in the 1950s and the tightening of civil commitment laws. The theory identifies untreated mental illness as …

Regulation And The Marginalist Revolution, Herbert Hovenkamp

Florida Law Review

The marginalist revolution in economics became the foundation for the modern regulatory State with its “mixed” economy. For the classical political economists, value was a function of past averages. Marginalism substituted forward looking theories based on expectations about firm and market performance. Marginalism swept through university economics, and by 1920 or so virtually every academic economist was a marginalist.

This Article considers the historical influence of marginalism on regulatory policy in the United States. My view is at odds with those who argue that marginalism saved capitalism by rationalizing it as a more defensible buttress against incipient socialism. While marginalism …

Towards A Global Data Privacy Standard, Michael L. Rustad, Thomas H. Koenig

Florida Law Review

This Article questions the widespread contention that recent updates to European Union (EU) data protection law will drive a disruptive wedge between EU and United States (U.S.) data privacy regimes. Europe’s General Data Protection Regulation (GDPR), which took effect in May 2018, gives all EU citizens easier access to their data, a right to portability, a right to be forgotten, and a right to learn when their data has been hacked. These mandatory privacy protections apply to non-EU companies that offer goods or services to EU consumers, whether through a subsidiary or a website. The “Brussels Effect” hypothesis projects a …

Intellectual Property And The End Of Work, Camilla A. Hrdy

Florida Law Review

The conventional wisdom is that intellectual property (IP) is good for jobs. Indeed, according to legislators and the U.S. patent office, IP “creates jobs.” But this is not quite right. A primary function of IP is to increase the amount of innovation in the economy. Yet a significant subset of the innovations protected by IP rights, from self-service kiosks to self-driving cars, are in fact labor-saving and indeed labor-displacing. They reduce the amount of paid human labor required to complete a task. Therefore, to the extent IP is successful at incentivizing innovation, IP actually contributes to job loss. More precisely, …

Staking The Boundaries Of Software Copyrights In The Shadow Of Patents, Pamela Samuelson

Florida Law Review

Ever since the venerable Supreme Court opinion in Baker v. Selden, courts and commentators have overwhelmingly endorsed the rule that copyright and utility patent protections for intellectual creations are mutually exclusive. That is, an intellectual creation may be eligible for copyright or utility patent protection, but not both. Original works of authorship are channeled to the copyright regime, while novel and nonobvious technologies are channeled to the patent system.

The well-established mutual exclusivity rule for copyright and utility patents was recently renounced, as applied to computer program innovations, by the Court of Appeals for the Federal Circuit (CAFC) in …

What If Artificial Intelligence Wrote This? Artificial Intelligence And Copyright Law, Victor M. Palace

Florida Law Review

The increasing sophistication and proliferation of artificial intelligence has given rise to a provoking question in copyright law: Who is the copyright owner of a work created by autonomous artificial intelligence? In other words, when a machine learns, thinks, and acts without human input, and it creates a work, what person should own the copyright, if any? This Note explains why this is a pressing question and why current laws and practices fail to address the issue. It then analyzes the arguments for and against the possible choices: the artificial intelligence, the user, the programmer, the company that owns the …

Animus And Its Discontents, William D. Araiza

Florida Law Review

The concept of “animus” has taken center stage in high-stakes constitutional rights adjudication. Both in major equal protection cases and, more recently, in litigation over President Trump’s immigration bans and religion-based denials of commercial services to lesbians and gays, animus has emerged as a favored doctrinal tool of courts committed to protecting individual rights against majoritarian oppression. Despite—or perhaps because of—its prominence, the animus concept has remained controversial. Scholars have remarked on the difficulty of uncovering animus, its tendency to inflame the culture wars, and its potential to distract attention from other doctrinal paths that might be viewed as more …

Civil Liability For Encouraging Bad Behavior: From Cheering At A Gang Rape To Promoting Opioid Abuse, James A. Henderson Jr.

Florida Law Review

This Article examines the civil liability of actors who encourage others to behave badly, thereby causing harm. The analysis distinguishes between individual encouragers and business-entity encouragers. Individuals most often intend for the bad behaviors and the consequential harms to occur—witness cheerleaders at a gang rape. This Article advocates stern treatment of such mean-spirited malcontents. On the one hand, if their encouragement is a but-for condition of the others’ harm causing bad behavior, they should be subject to liability based on traditional intentional tort. On the other hand, if their encouragement is not a but-for condition, this essay proposes an exception …