Law Commons^™

The Other Patent Agency: Congressional Regulation Of The Itc, Sapna Kumar

Florida Law Review

The United States International Trade Commission has recently experienced a dramatic increase in patent infringement investigations under § 337 of the Tariff Act of 1930. In fact, the number of patent enforcement actions submitted to the ITC has nearly doubled in the last five years. Patent holders are selecting this forum because of its speedy proceedings and its ability to award broad exclusion orders. This rise in ITC patent litigation, however, has revealed weaknesses in the structure of § 337. In broadening the provision to facilitate the enforcement of patent rights, Congress failed to consider the impact of this change …

Take Your Gun To Work And Leave It In The Parking Lot: Why The Ohs Act Does Not Preempt State Guns-At-Work-Laws, Dayna B. Royal

Florida Law Review

No abstract provided.

Modernizing Water Law: The Example Of Florida, Christine A. Klein, Mary Jane Angelo, Richard Hamann

Florida Law Review

This Article takes a national view of the modernization of water law. Using Florida as an example, it identifies some of the most important and controversial challenges faced by states. Part II provides an overview of the process of water law reform. As states attempt to improve water management, they have modified their common law water allocation systems with an overlay of statutory law. Often, the process occurs in a piecemeal fashion, resulting in a patchwork of rules—common law and statutory, old and new. In rare cases—including that of Florida—the process may be more comprehensive, one through which states supplement …

Gina: A Genetic Information Nondiscrimination Solution In Search Of A Problem, Patricia Alten

Florida Law Review

Genetic discrimination is unfair to workers and their families. It is unjustified—among other reasons, because it involves little more than medical speculation. A genetic predisposition toward cancer or heart disease does not mean the condition will develop. To address the potential use of genetic information by employers to discriminate against employees, Congress enacted the Genetic Information Nondiscrimination Act of 2008 (GINA). This Note proposes the need for modifications to GINA before it is effective in late 2009. In its current state, the provisions relating to employers are overly broad and could catch many employers in unknowing violations. Although GINA prohibits …

Passenger Standing To Challenge Searches And Seizures: A Distinction Without A Constitutional Difference, Dante P. Trevisani

Florida Law Review

This Note argues that the holding of the Court’s past decisions denying passengers standing to challenge searches comports neither with logic nor with its recent decision in Brendlin, and should there fore be changed. Part II explains the development of the law regarding passenger standing in searches, which Part III explains the development of the law regarding passenger in seizures. Part IV argues that the differing approaches to passenger standing are theoretically inconsistent and cannot be reconciled. Part V addresses the reason for this inconsistency; namely, the Court’s erroneous determinations of how a “reasonable” person feels during searches and …

Teachers As Sexual Harassment Victims: The Inequitable Protections Of Title Vii In Public Schools, Richard D. Shane

Florida Law Review

This Note argues that teachers who are victims of sexual harassment by their students should be afforded the same federal protections under Title VII as students who are the victims of sexual harassment. Part II discusses the protections of federal laws that have been extended to victims of student-on-student and teacher-on-student sexual harassment. Part II also explains how Title IX fails to adequately provide relief to teachers as victims of student-on-teacher sexual harassment. Part III discusses the application of Title VII to teachers as victims of sexual harassment in a hostile work environment and details the limited success of teachers …

The Real Value Of Tax Deferral, Christopher H. Hanna

Florida Law Review

A leading law professor wrote a quarter-century ago that deferral of gain “is not as serious as outright exemption, but it is the next best thing.” Few tax law academics would disagree. But how important is tax deferral in the real world, particularly with respect to the Fortune 500 companies and other publicly held corporations, on which I focus and refer to as “Corporate America”? In this Article, I propose that tax exemption and tax deferral as a significant benefit for a corporation. Even if tax rates remain constant over time, there is a time value of money benefit in …

State Standing After Massachusetts V. Epa, Calvin Massey

Florida Law Review

No abstract provided.

Perpetual Property, Sarah Harding

Florida Law Review

No abstract provided.

Didn't My General Contractor Pay You? Subcontractor Construction Liens In Residential Construction Projects, Heather Howdeshell

Florida Law Review

This Note addresses the current state of Florida’s construction lien laws as applied to residential real estate development and renovations in the aftermarket context. In sum, this Note proposes that the Florida Construction Lien Law should provide greater protection from construction liens to residential consumers and homeowners. While contractors and subcontractors need assurance of payment, homeowners alone should not shoulder the risk that subcontractors and materials suppliers may not be paid by contractors. First, this Note discusses the historical precedent and circumstances developing Florida’s current construction lien law. Second, this Note analyzes and critique the current Florida construction lien law …

Guilt By Machine: The Problem Of Source Code Discovery In Florida Dui Prosecutions, Charles Short

Florida Law Review

This Note explores the issue of source code discovery by DUI defendants. Part II of this Note examines the case law and statutes used to shield breath testing machines from scrutiny. It examines both the approach taken by Florida and the approaches adopted in other states. Part II also discusses the application of trade secrets protection to the source code of breath testing machines. Part III further examines the problem of source code discovery through the lens of the Confrontation Clause of the Sixth Amendment to the United States Constitution. Finally, Part IV concludes by posing a solution to the …

Applying The Common Fund Doctrine To An Erisa-Governed Employee Benefit Plan's Claim For Subrogation Or Reimbursement, E. Farish Percy

Florida Law Review

The Supreme Court’s recent decision in Sereboff v. Mid Atlantic Medical Services, Inc. will likely encourage ERISA-governed plans to assert claims for reimbursement more aggressively. Prior to Sereboff, plans were often unsuccessful in recovering reimbursement, in large part because § 502(a)(3) of ERISA limits the relief available to a plan seeking reimbursement to “appropriate equitable relief” necessary to redress a violation of plan provisions requiring reimbursement or subrogation. In Sereboff, however, the Court held that the claim for reimbursement at issue was a claim for “equitable relief” under § 502(a)(3) because both the nature of the relief sought …

Adapting U.C.C. § 2-615 Excuse For Civilian-Military Contractors In Wartime, Jennifer S. Martin

Florida Law Review

When should a civilian seller of goods who delays delivery or cancels altogether under wartime contract be able to claim excuse under U.C.C. Article 2? The unprecedented extent of the U.S. military’s use of contractors abroad calls for a rethinking of U.C.C. impracticability, as private parties face wartime risks once encountered solely by the government. The traditional approach typically denies the seller the right to excuse the failure of delivery in instances where the wartime risk might be categorized as foreseeable or is expressly or impliedly allocated to the seller. This analysis forces a dilemma upon the seller facing threats …

From Loyalty To Conflict: Addressing Fiduciary Duty At The Officer Level, Usha Rodrigues

Florida Law Review

Conflicts of interest are the quintessential agency cost—the constant, lurking danger that agents may seek their own personal gain, rather than the good of the corporation. Yet many corporate employees lack knowledge as to exactly what constitutes a conflict of interests. This ignorance facilitated the kind of fraud seen in Enron, WorldCom, and the options backdating scandals, and may help explain the out-sized payouts that many high-level corporate officers received even as the financial institutions they headed verged on self-destruction, Each case required not only affirmative fraudulent behavior on the part of a few, but also the tacit acceptance of …

Book Review: The Death Project: An Anthology For These Times, Ted D. Ayres

Journal of Multicultural Affairs

A book review of The Death Project: An Anthology for These Times.

Ted Ayres, Social Justice And Education Advocate: "Making It Count" With Book Reviews, Kristen P. Erdem

Journal of Multicultural Affairs

This is an interview article with a prolific reviewer of books seen on public television and in print. Ted Ayres had an inspired legal career, and his advocacy continues to this day. The year 2020, like no other year in our recent U.S. history, was a raucous reckoning for an array of social justice issues. As this theme continues in 2021, it is heartwarming getting to know a quiet advocate in our midst. Meet Ted Ayres. Ayres will be a contributor to the journal with book reviews. This is an introduction to the person, Ted Ayres as social justice and …

How The Common School Has Failed Hispanic Children—Witnessing The Severe Regression Of Language English Proficient Learners During A Pandemic: Teaching During Covid-19, Yvonne S. Herrera

Journal of Multicultural Affairs

Personal reflection on the impacts of the common school on Hispanic children during the COVID-19 pandemic, when Hispanic children experienced less opportunities in becoming educated due to lack of accessible technology.

Overview: From The Desk Of The Guest Editor, Tonya Huber

Journal of Multicultural Affairs

Overview from the Guest Editor on this special issue on the impacts of Covid-19 in educational settings. One theme explored in the contents of this issue is the powerlessness many educators felt as the editors set out to hear, comprehend, represent, and amplify their experiences. Other themes include: appreciation and empathy, focusing on what matters, and new ways of teaching with technology.

Survey Of State Laws Governing Continuances And Stays In Eviction Proceedings, Ryan Sullivan

Nebraska College of Law: Faculty Publications

The Survey contains both a cumulative and detailed account of the laws and rules of each state governing continuances, adjournments, and stays in residential eviction proceedings. The Survey compares the laws of each state on several aspects, including the standard for obtaining a continuance, the allowable length of the continuance, whether a bond must be paid, and any other restriction or limitation placed on the party seeking to continue an eviction proceeding. The Survey also includes a listing of state statutes that provide a residential tenant a right to redeem the property upon payment of rent prior to the execution …

Court Personalities And Impoverished Parents, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

Professor Tonya Brito's in-depth examination of the pursuit of child support from poor fathers continues to pay significant dividends that extend well beyond family law. Producing Justice in Poor People's Courts: Four Models of State Legal Actors highlights the that differing personalities and approaches can have on impoverished parents involved in child-support-enforcement disputes before the courts. Based on an impressive ethnographic study, Brito's article shows how the actors involved craft stories about impoverished family dynamics as a way to make sense of their own role and complicity in an often unjust system of regulating poor families.

E-Museletter: November 2021, William Taylor Muse Law Library

Museletter

This Issue:

Director's Message

Library News

Library Hours During Thanksgiving

Featured Resources

Materials Update

Things to Consider

Student Services Corner

Cardozo Law News Brief: November 18, 2021, Benjamin N. Cardozo School Of Law

Cardozo Law News Brief 2021

Featured Faculty:

• Leslie Salzman
• Anthony Sebok
• Myriam Gilles
• Pamela Foohey

Campus News:

• Immigration Justice Clinic Files FOIA Suit to Highlight Inhumane and Discriminatory Treatment of Black Immigrants in Detention

Events:

• Book Talk with Professor Carissa Byrne Hessick on “Punishment Without Trial: Why Plea Bargaining Is a Bad Deal”
• Follow the Law, Break the Mold: An Interview with Sarah Feingold, Etsy’s First General Counsel

The Brief (Edition #13, November 2021), William & Mary Law School

The Brief

No abstract provided.

A Telehealth Explosion: Using Lessons From The Pandemic To Shape The Future Of Telehealth Regulation, Deborah Farringer

Texas A&M Law Review

From board rooms, to classrooms, to Saturday Night Live skits, the video conferencing app Zoom became a seemingly overnight sensation as a way to connect while businesses were shuttered and individuals were forced to stay at home when the coronavirus pandemic erupted in the United States in March 2020. From 10 million daily users in December 2019 to over 200 million daily users by March 2020, the company founded in 2011 became a market leader as the country tried to figure out how to continue business as usual—to the extent possible—during the global pandemic. While hospitals prepared for the onslaught …

Toward A More Strategic National Stockpile, Troy Rule

Texas A&M Law Review

The COVID–19 pandemic exposed major deficiencies in the United States’ approach to stockpiling for emergencies. States, cities, and hospitals across the country had meager inventories of critical medical items on hand when the pandemic first reached U.S. soil, and the federal government’s Strategic National Stockpile proved far too small to serve the country’s needs in the first several months of the crisis. As nationwide shortages spread, many state governments were compelled to bid against each other to procure scarce medical supplies—a distribution approach that disadvantaged low-income and minority communities and left countless healthcare professionals and staff ill-equipped to protect themselves …

Valuing Injunctive Relief Under The Class Action Fairness Act, Sadie J. Kavalier

Duke Law Journal

Injunctive relief class actions afford victims of mass harms a chance to sue collectively and enjoin an actor’s conduct. While the moral value of these suits may be monumental for litigants, one procedural question remains murky: how should courts value the amount in controversy to determine whether the suit qualifies for federal diversity jurisdiction? Historically, federal courts adopted one of two approaches. The “Plaintiff’s Viewpoint approach” values the amount in controversy strictly from any monetary benefit to the plaintiff(s). The “Either Viewpoint approach” values the amount in controversy as the higher of any monetary benefit to the plaintiff or the …

Your Voice Gave You Away: The Privacy Risks Of Voice-Inferred Information, Emma Ritter

Duke Law Journal

Our voices can reveal intimate details about our lives. Yet, many privacy discussions have focused on the threats from speaker recognition and speech recognition. This Note argues that this focus overlooks another privacy risk: voice-inferred information. This term describes non-obvious information drawn from voice data through a combination of machine learning, artificial intelligence, data mining, and natural language processing. Companies have latched onto voiceinferred information. Early adopters have applied the technology in situations as varied as lending risk analysis and hiring. Consumers may balk at such strategies, but the current United States privacy regime leaves voice insights unprotected. By applying …

In A Different Voice, Roger Michalski

Other Faculty Publications

No abstract provided.

Error-Resilient Consumer Contracts, Danielle D'Onfro

Duke Law Journal

When firms contracting with consumers make mistakes, people get hurt. Inaccurate billing, misapplied payments, and similar problems push lucky consumers into Kafkaesque customer service queues—and unlucky ones off the financial cliff. Despite significant regulatory interventions, firms contracting with consumers continue to struggle to accurately bill customers, update accounts, and process payments. Firms largely rely on technology, especially databases and software, to discharge these servicing obligations. This technology must accommodate firms’ innovations in their contracts, shifting governmental regulations, and consumers’ unpredictable behavior. Given the complexity of servicing, even when firms invest significantly in technology, it will inevitably produce mistakes. When firms …

Insider Giving, S. Burcu Avci, Cindy A. Schipani, H. Nejat Seyhun, Andrew Verstein

Duke Law Journal

Corporate insiders can avoid losses if they dispose of their stock while in possession of material nonpublic information. One means of disposal, selling the stock, is illegal and subject to prompt mandatory reporting. A second strategy is almost as effective, yet it faces lax reporting requirements and enforcement. That second method is to donate the stock to a charity and take a charitable tax deduction at the inflated stock price. This “insider giving” is a potent substitute for insider trading. We show that insider giving is far more widespread than previously believed. In particular, we show that insider giving is …