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Full-Text Articles in Law
The “New” Presumption Against Preemption, Mary J. Davis
The “New” Presumption Against Preemption, Mary J. Davis
Law Faculty Scholarly Articles
Is there or isn't there a “presumption against preemption”? The Supreme Court continues to mention it, but then does, or does not, apply it in a way that helps us understand what it is. This Article explores the Court's preemption opinions in the last several decades, particularly its most recent pronouncements, and concludes that, indeed, there is a presumption against preemption. It is a "new" presumption in the sense that it is born of the Court's active preemption docket in the last two decades, which has more narrowly defined both express and implied preemption analysis. The "new" presumption is stronger …
An Alternate Functionality Reality, Harold R. Weinberg
An Alternate Functionality Reality, Harold R. Weinberg
Law Faculty Scholarly Articles
Trade dress law does not protect the appearance of a product design feature (e.g., a product's configuration) against unauthorized copying if the feature is functional, but may protect the appearance if the feature is nonfunctional. The functionality doctrine is intended to preserve competition in the market for a product incorporating a design feature that allegedly is protected by trade dress law, and to avoid conflicts between trade dress law and patent law. The Supreme Court last addressed the functionality doctrine in TrafFix Devices, Inc. v. Marketing Displays, Inc. The Court intended TrafFix to “choke off” anticompetitive trade dress “strike suits.” …
Conditional Spending And Compulsory Maternity, Nicole Huberfeld
Conditional Spending And Compulsory Maternity, Nicole Huberfeld
Law Faculty Scholarly Articles
More than forty-six million Americans are uninsured, and many more are seeking government assistance, which makes congressional spending for federal programs a significant issue. Federal funding often comes with prerequisites in the form of statutory conditions. This Article examines the impact that conditions placed on federal healthcare spending have on the individuals who rely on that spending by exploring the ongoing disconnect between Spending Clause jurisprudence and women's reproductive rights. The first Part reviews the foundational Supreme Court precedents and places them in context from both a statutory and theoretical perspective. The second Part studies what the author denominates "pure …