Law Commons^™

In Minerva V. Hologic, The U.S. Supreme Court Reins In The Equitable Doctrine Of Assignor Estoppel, Christopher M. Holman

Faculty Works

Assignor estoppel is an equitable remedy that prohibits an assignor of a patent, or one in privity with an assignor, from attacking the validity of that patent when he is sued for infringement by the assignee. On June 29, 2021, the U.S. Supreme Court issued its decision in Minerva v. Hologic, holding that while AE remains a viable doctrine, the Federal Circuit has on many occasions, including the instant case, applied the doctrine in an overly expansive manner, particularly in cases where the patent claims at issue differ substantially from any patent claims that were in existence at the time …

Protecting The Child Bride: Following Texas' Middle Ground Approach, Wendy Tolson Ross

Faculty Works

Child marriages historically affect girls more so than boys. In fact, in 2010, the Center for Disease Control reported that for the preceding five-year period, 4% of teen girls and 1% of teen boys married before age eighteen. As a result, feminists have traditionally fought to police girls' chastity throughout time. However, further discussion of this is outside of the discussion of this paper. This paper will focus on the concern of "child brides," or minors under the age of eighteen.

At the heart of this child marriage problem are two concerns: 1) protection of the underage and immature minor …

Case Global: Celebrating 30 Years, Case Western Reserve University School Of Law, The Frederick K. Cox International Law Center

Case Global Newsletter

Vol. 13, No. 1 (2021)

• Celebrating 30 Years: The Cox Center marks three decades of dedication to international law
• International accolades for Co-Dean Scharf
• Student-led initiative documents atrocities in Yemen
• Going global -- at home
• CWRU faculty connect with human experts in Thailand
• Law faculty, students push for accountability for violence by police
• Alumni spotlight (John Sopko)
• Global impact
• Three Decades of Progress
• CWRU takes top honors in international moot court competitions
• Making an impact on immigration
• News of our International Law Faculty
• Diplomatic tendencies

In Brief, Case Western Reserve University School Of Law

In Brief

Table of Contents

• An Update from the Deans: Q&A
• Practice Pays Off: CWRU Law Teams Score Impressive Performances in Competitions
• A Focus on the First Amendment
• Litigation Clinic Petition to Be Heard by the Ohio Supreme Court
• Student-Led Initiative Documents Atrocities in Yemen
• Welcoming Upgrades
• Cox Center's Three Decades of Progress
• LLM Program Celebrates 30 Years
• Featured Alumni/Alumni Spotlight: Chris Rassi
• Faculty Briefs
• Commemorating the Class of 2021
• Class Notes
• New Cabinet Unites Alumni to Improve Diversity and Inclusion at the Law School
• Alumni Committees
• In Memoriam
• Society of Benchers
• Honor Roll of Donors
• More than 50 Years After Graduation, …

Underwater Mortgages For Underwater Homes: The Elimination Of Signals In The Coastal Lending Market, Peyton J. Klein

Vanderbilt Law Review

Climate change and sea level rise threaten to increase the default risk of mortgages on homes in coastal areas. Faced with this reality, small coastal lenders have begun selling more climate-sensitive mortgages to Fannie Mae and Freddie Mac, thereby transferring the risk of climate-induced default off the lenders’ books. Fannie Mae and Freddie Mac play a crucial role in supporting America’s mortgage finance system by purchasing qualifying private home loans, packaging them into investable security pools, and guaranteeing timely payment of principal and interest to outside investors. Through selling mortgages to Fannie Mae and Freddie Mac, lenders can use their …

Destruction, The Rebirth Of Art: Analyzing The Right Of Integrity’S Role In Modern Art, Connely Doizé

Journal of Intellectual Property Law

Creative destruction uses destruction to create new meaning in a work. This process is best explained as a Phoenix, rising from the ashes of destruction. The term “Art” encompasses infinite meanings and in this Note, I argue that destruction constitutes one of them. Resulting from this connection, I argue that destruction, specifically Creative Destruction, must not be hampered by law. In 1990, Congress promulgated the Visual Artist Rights Act, 17 U.S.C.A. 106A. This legislation formally introduced the moral rights of attribution and integrity into United States legal doctrine. Specifically, the right of integrity grants an artist the right to prevent …

A New Way For Voting In American Elections: Addressing The Patentability Of A Blockchain Mail-In Voting System, Brandon D. Waller

Journal of Intellectual Property Law

The novel corona virus turned life upside down throughout the world in 2020. One of its many impacts was the fear it gave people of going out in public as doing such could increase the likelihood of contraction. This disease happened to come about during an election year in the United States and this raised many questions about how voting could be safely conducted. A hot topic debate took over America as to whether or not mail-in voting would suffice. The United States Postal Service sought to find a reliable way to conduct mail-in voting and filed for a patent …

Big Tech In A Small Pond: How The Internet Economy Became So Concentrated And What Sector-Specific Regulation Can Do To Reel It In, Andy Wilson

Journal of Intellectual Property Law

While the early days of the internet were marked by a proliferation of new internet platforms offering different services, over time much of the sector became dominated by the handful of internet giants we know today. Discomfort with the outsized role that these enormous companies play in the daily lives of billions has driven a growing consensus that they need to be reined in, culminating in federal and state agencies launching a slew of antitrust suits against Google and Facebook in late 2020. These renewed antitrust efforts will likely be insufficient to address competitive harms in the internet economy, given …

Praxis And Paradox: Inside The Black Box Of Eviction Court, Lauren Sudeall, Daniel Pasciuti

Vanderbilt Law Review

In the American legal system, we typically conceive of legal disputes as governed by specific rules and procedures, resolved in a formalized court setting, with lawyers shepherding both parties through an adversarial process involving the introduction of evidence and burdens of proof. The often-highlighted exception to this understanding is the mass, assembly-line processing of cases, whether civil or criminal, in large, urban, lower-level courts. The gap left unfilled by either of these two narratives is how “court” functions for the average unrepresented litigant in smaller and nonurban jurisdictions across the United States.

For many tenants facing eviction, elements of the …

The People's Ledger: How To Democratize Money And Finance The Economy, Saule T. Omarova

Vanderbilt Law Review

The COVID-19 crisis underscored the urgency of digitizing sovereign money and ensuring universal access to banking services. It pushed two related ideas—the issuance of central bank digital currency and the provision of retail deposit accounts by central banks-—to the forefront of the public policy debate. To date, however, the debate has not produced a coherent vision of how democratizing access to central bank money would—and should—transform and democratize the entire financial system. This lack of a systemic perspective obscures the enormity of the challenge and dilutes our ability to tackle it.

This Article takes up that challenge. It offers a …

Three Legitimacy Challenges Of The Inter-American Human Rights System, Carlos Bernal

School of Law Faculty Publications

This article analyses three core challenges that hinder the legitimacy of the Inter-American System of Human Rights. They relate to the Inter-American standards, the observance of due process, and the nature and proportionality of compensatory remedies. The analysis accounts for challenges, and outlines a proposal for overcoming them as well.

Este artículo lleva a cabo un análisis relativo a tres desafíos relevantes que aquejan la legitimidad del Sistema Interamericano de Derechos Humanos. Ellos se refieren a los estándares interamericanos, el respeto del debido proceso y a la naturaleza y proporcionalidad de las medidas de reparación. El análisis comprende tanto un …

Mad About The First Amendment, Our Beacon For Liberty, Equality And Democracy, Nicholas Allard

Faculty Scholarship

No abstract provided.

The Labyrinth Of Data Collection For Humanitarian Project Funding And Implementation, Maria Alejandra Pulido

Independent Study Project (ISP) Collection

My research concentrates on four NGOs: IOM, IDMC, JIPS, and OCHA which use different tools to collect data and translate the information into evidence for data-driven decision making (DDDM) for the implementation of humanitarian assistance projects. I focus on the importance, advantages, and various data collection tools which help ameliorate the humanitarian sector since it does not have a current professionalized path to enter the workforce. I incorporated four interviews, attended two conferences and analyzed multiple online sources during my project.

Discontinuity Between Religion, Law, And Society Through Animal Treatment In Morocco, Michael Altman

Independent Study Project (ISP) Collection

Animal treatment is a topic which is covered by many facets of what helps create the guiding principles for humans, yet all in different ways; there is some overlap, and there is some distinction. From my three months of study in Rabat, Morocco, seeing how each person approaches the homeless animal differently, I write on how three important overarching areas: religious, legal, and societal, discuss how animals should be treated.

In this paper, I will be analyzing religious texts, legal writings both in place and in draft, and will rely on external works written animal markets and on the school …

Reviving Antitrust Enforcement In The Airline Industry, Jonathan Edelman

Michigan Law Review

The Department of Transportation (DOT) has broad but oft overlooked power to address antitrust issues among airlines through section 411 of the Federal Aviation Act. However, the DOT’s unwillingness to enforce antitrust more aggressively may be translating into higher fares and fees for airline travelers.

More aggressive antitrust enforcement is urgently needed. Recent research has revealed a widespread practice of common ownership in the airline industry, whereby investment firms own large portions of rival airline companies. Although this practice leads to higher prices and reduced competition, antitrust regulators, from the DOT to the Department of Justice and the Federal Trade …

The Case Of The Dishonest Scrivener: Gouverneur Morris And The Creation Of The Federalist Constitution, William Michael Treanor

Michigan Law Review

At the end of the Constitutional Convention, the delegates appointed the Committee of Style and Arrangement to bring together the textual provisions that the Convention had previously agreed to and to prepare a final constitution. Pennsylvania delegate Gouverneur Morris drafted the document for the Committee, and, with few revisions and little debate, the Convention adopted Morris’s draft. For more than two hundred years, questions have been raised as to whether Morris covertly altered the text in order to advance his constitutional vision, but modern legal scholars and historians studying the Convention have either ignored the issue or concluded that Morris …

The Missing Algorithm: Safeguarding Brady Against The Rise Of Trade Secrecy In Policing, Deborah Won

Michigan Law Review

Trade secrecy, a form of intellectual property protection, serves the important societal function of promoting innovation. But as police departments across the country increasingly rely on proprietary technologies like facial recognition and predictive policing tools, an uneasy tension between due process and trade secrecy has developed: to fulfill Brady’s constitutional promise of a fair trial, defendants must have access to the technologies accusing them, access that trade secrecy inhibits. Thus far, this tension is being resolved too far in favor of the trade secret holder—and at too great an expense to the defendant. The wrong balance has been struck.

This …

“An Outrage Upon Our Feelings”: The Role Of Local Governments In Resistance Movements, Daniel Farbman

Cardozo Law Review

After the election of 2016, many who opposed President Trump and his policies argued that local governments and local power would be the best tools to resist those policies and strengthen democracy. Among the most prominent acts of local resistance in the last decade have been resolutions that declare a town or a city a “Sanctuary” and refuse to cooperate with federal authorities in the deportation of undocumented immigrants. This Article situates these resolutions in a long tradition of local opposition to state and federal laws that towns and cities deem unjust by examining local opposition to the Fugitive Slave …

The Death Of The Genus Claim, Sean B. Seymore, Dimitry Karshted, Mark A. Lemley

Vanderbilt Law School Faculty Publications

The central feature of patent law in the chemical, biotechnology, and pharmaceutical industries is the genus claim a patent claim that covers not just one specific chemical but a group of related chemicals. Genus claims are everywhere, and any patent lawyer will tell you they are critical to effective patent protection. But as we show in this Article, the law has changed dramatically in the last thirty years, to the point where it is nearly impossible to maintain a valid genus claim. Courts almost always hold them invalid, either at trial or on appeal. Remarkably, courts do this without acknowledging …

How Chevron Deference Fits Into Article Iii, Kent H. Barnett

Scholarly Works

U.S. Supreme Court Justices Clarence Thomas and Neil Gorsuch, along with Professor Philip Hamburger, assert that Chevron deference-under which courts defer to reasonable agency statutory interpretations-violates Article III. Chevron does so because, they argue, it either permits agencies, not courts, "to say what the law is" or requires judges to forgo independent judgment by favoring the government's position. If they are correct, Congress could not require courts to accept reasonable agency statutory interpretations under any circumstances. This Article does what these critics, perhaps surprisingly, do not do-situates challenges to Chevron within the broad landscape of the Court's current Article III …

The Diffusion Of The Sandbox Approach To Disruptive Innovation And Its Limitations, Chang-Hsien Tsai, Ching-Fu Lin, Han-Wei Liu

Research Collection Yong Pung How School Of Law

Faced with the challenges posed by disruptive technologies and innovations, many countries have adopted different regulatory approaches, institutional structures, and norms to maximize benefits and mitigate risks. Among such regulatory endeavors, the regulatory sandbox, first adopted by the United Kingdom in its financial sector, stands out as a prominent mechanism to strike a balance between promoting technological innovations and ensuring market order. Given the promises of the regulatory sandbox, there has been a gradual embrace of this approach by governments across continents, arguably indicating a global norm diffusion. There is also a trans-governmental endeavor to facilitate cooperation among regulators and …

Uncovering Agencies' Hidden Unrules, Gabriel Scheffler, Cary Coglianese, Daniel E. Walters

Articles

No abstract provided.

Monopolizing Sports Data, Marc Edelman, John T. Holden

William & Mary Law Review

With legal sports betting viewed as a panacea for state budget woes across the United States, the underlying data that fuels the sports betting industry has emerged as an especially valuable asset. In the hopes of capitalizing on state laws that have now legalized sports betting, United States professional sports leagues have attempted to gain exclusive ownership rights over valuable sports betting data by asking legislators to mandate that bookmakers exclusively use data sold through the league. In addition, some sports leagues have imposed policies mandating that teams bundle together their collected data for purposes of selling it exclusively through …

Manufacturing Sovereign State Mootness, Daniel Bruce

William & Mary Law Review

The idea that public defendants should receive any special treatment in the mootness context has been subject to intense criticism among commentators. Most notably, in the lead-up to the New York Rifle decision, Joseph Davis and Nicholas Reaves—two prominent First Amendment litigators from the Becket Fund for Religious Liberty—urged the Supreme Court to take the opportunity to correct the lower courts’ practice of blessing government abuse of the voluntary cessation doctrine. Indeed, the Supreme Court has never adopted a presumption in favor of government defendants such as the one applied by the Seventh Circuit in Killeen, and it failed to …

Absurd Overlap: Snap Removal And The Rule Of Unanimity, Travis Temple

William & Mary Law Review

Snap removal employs “a literalist approach” to the statute governing the procedural mechanism for removing cases from state court to federal court. In a typical removal scenario, defendants sued in state court would have the option to be heard in federal court instead, given that certain conditions are satisfied. [S]nap removal essentially allows the defendants to forego a condition that would bar removal if they can file before the plaintiff formally notifies them of the lawsuit. This practice of removing a case before being served with formal process—essentially an act of gamesmanship of the civil procedure system—has gained appellate support …

Toward A Virginia Ocean Plan: Lessons And Recommendations From Other States, Nathaniel Dominy, Luke Foley

Virginia Coastal Policy Center

Virginia’s ocean waters feature vast natural resources, and are used by its residents, visitors, and the military for recreation, commerce, and national security. New and intensified uses, such as offshore energy production, aquaculture, and increased shipping could impact Virginia’s ocean resources. To ensure the continued protection of these resources, while allowing them to be used sustainably, the Commonwealth is developing its first ocean management plan. Because several state agencies currently manage Virginia’s territorial sea waters, a coordinated and proactive approach is needed to effectively develop this plan. Developing a Virginia Ocean Plan can help protect the Commonwealth’s ocean resources and …

Reforming State Bail Reform, Shima Baughman, Lauren Boone, Nathan H. Jackson

Utah Law Faculty Scholarship

We are waist-deep in the third wave of bail reform. Scholars, policy makers, and the public have realized that the short period of detention before trial creates ripple effects on a defendant’s judicial fate and has lasting impacts on our system of mass incarceration. Over 200 proposed bail bills are pending throughout the states. This is not the first period of bail reform in America—two previous waves of bail reform in the 1960s and 1980s have both ended in increased pretrial detention for defendants. Some of the recent efforts in the third wave of bail reform have also increased detention …

The Paradox Of Free Speech In The Digital World: First Amendment Friendly Proposals For Promoting User Agency, Nadine Strossen

Articles & Chapters

The United States Supreme Court has continued a speech-protective trend dating back to the 1960s, safeguarding even the most controversial speech from government regulation, including speech that critics of this trend label with the stigmatizing terms "hate speech," "disinformation," "misinformation," "extremist speech," and "terrorist speech." In contrast, as dominant online platforms have become increasingly important forums for both individual self-expression and democratic discourse, the platforms have been issuing and enforcing increasing restrictions on their users' speech pursuant to each platform's content moderation policies. These restrictions often suppress speech that the U.S. Constitution bars government from suppressing. As private sector entities, …

The Uniform Commercial Code Survey: Introduction, Jennifer S. Martin, Colin P. Marks, Wayne Barnes

Faculty Scholarship

The survey that follows highlights the most important developments of 2020 dealing with domestic and international sales of goods, personal property leases, payments, letters of credit, documents of title. investment securities, and secured transactions.

What Is Wrong With Intimate Partner Abuse And Why It's Criminalization Might Not Be Right, Galia Schneebaum

Cardozo International & Comparative Law Review

Considering a contemporary debate between United States ("US') and United Kingdom ("UK') approaches, this article probes the appropriateness of criminalizing non-violent abuse in intimate partner relationships. Criminal lawyers in the US and the UK are divided on prohibiting intimate partner abuse. Whereas US jurisdictions retain a traditionalfocus on physical injury, England and Wales enforce a novel prohibition on "controlling or coercive behavior," covering conduct such as micromanaging intimate partners'schedules or restricting their behaviors through rules. While the US approach has been criticized as conservative, this article questions the progressiveness of the UK approach. It suggests, first, that in prohibiting "controlling …