Law Commons^™

Acta's Constitutional Problem: The Treaty That Is Not A Treaty (Or An Executive Agreement), Sean Flynn

Joint PIJIP/TLS Research Paper Series

The planned entry of the U.S. into the Anti-Counterfeiting Trade Agreement (ACTA) poses a unique Constitutional problem. The problem is that the President lacks constitutional authority to bind the U.S. to the agreement without congressional consent; but that lack of authority may not prevent the U.S. from being bound to the agreement under international law. If the administration succeeds in its plan, ACTA may be a binding international treaty (under international law) that is not a treaty (under U.S. Constitutional law).

Contents, North Carolina Journal Of Law & Technology

North Carolina Journal of Law & Technology

No abstract provided.

Protecting The Material World: The Role Of Design Patents In The Fashion Industry, Elizabeth Ferrill, Tina Tanhehco

North Carolina Journal of Law & Technology

No abstract provided.

Arbitration: A Quick And Effective Means For Patent Dispute Resolution, Anne Louise St. Martin, J. Derek Mason

North Carolina Journal of Law & Technology

No abstract provided.

U.S. V. Warshak: Will Fourth Amendment Protection Be Delivered To Your Inbox, Casey Perry

North Carolina Journal of Law & Technology

No abstract provided.

The Materiality Standard After Matrixx Initiatives, Inc. V. Siracusano, Benjamin Shook

North Carolina Journal of Law & Technology

No abstract provided.

Trips Enforcement And Developing Countries, Peter K. Yu

Faculty Scholarship

In January 2009, the WTO Dispute Settlement Body released a panel report on China - Measures Affecting the Protection and Enforcement of Intellectual Property Rights. The dispute concerned the inadequacy of protection and enforcement of intellectual property rights in China under the TRIPS Agreement. While both China and the United States were quick to declare victory in this dispute, less developed countries might have become the dispute’s unintended and unannounced winner.

As part of the symposium on the Anti-counterfeiting Trade Agreement (ACTA) and international intellectual property enforcement, this Article focuses on the implications of this panel report for less developed …

Proposed Exactions, Timothy M. Mulvaney

Faculty Scholarship

In the abstract, the site-specific ability to issue conditional approvals offers local governments the flexible option of permitting a development proposal while simultaneously requiring the applicant to offset the project’s external impacts. However, the U.S. Supreme Court curtailed the exercise of this option in Nollan and Dolan by establishing a constitutional takings framework unique to exaction disputes. This exaction takings construct has challenged legal scholars on several fronts for the better part of the past two decades. For one, Nollan and Dolan place a far greater burden on the government in justifying exactions it attaches to a development approval than …

Integrating "Alternative" Dispute Resolution Into Bankruptcy: As Simple (And Pure) As Motherhood And Apple Pie?, Nancy A. Welsh

Faculty Scholarship

Today, there can be little doubt that “alternative” dispute resolution is anything but alternative. Nonetheless, many judges, lawyers (and law students) do not truly understand the dispute resolution processes that are available and how they should be used. In the shadow of the current economic crisis, this lack of knowledge is likely to have negative consequences, particularly in those areas of practice such as bankruptcy and foreclosure in which clients, lawyers, regulators, and courts work under pressure, often with inadequate time and financial resources to permit careful analysis of procedural options. Potential negative effects can include: (1) impairment of a …

Viacom V. Youtube: An Erroneous Ruling Based On The Outmoded Dmca, Lior Katz

Loyola of Los Angeles Entertainment Law Review

YouTube is currently the largest video website on the Internet. Although YouTube is often aware of the existence of infringing videos on its website, it only takes down such videos when copyright owners notify YouTube that a specific video is unauthorized. This policy prompted Viacom International to file a one billion dollar copyright infringement lawsuit against YouTube in the United States District Court for the Southern District of New York. On June 23, 2007, the court dismissed all charges against YouTube, holding that the Digital Millennium Copyright Act (DMCA) shielded the company from liability. This article argues that the court’s …

Scheduled Skyping With Mom Or Dad: Communicative Technology’S Impact On California Family Law, Jenna Charlotte Spatz

Loyola of Los Angeles Entertainment Law Review

The prominence of real-time, interactive video technology provides individuals the opportunity to communicate in the face of physical separation. The iPhone 4’s FaceTime application, Gmail’s g-chat phone and video application, and Skype software exemplify the realm of tools that facilitate people’s ability to maintain relationships despite the geographical distance between them. Accordingly, family law has adapted to apply such technology when rendering child custody decisions. More specifically, family law courts throughout the country have issued orders requiring “virtual visitation,” which utilizes technology such as web cameras and other Internet tools to provide regular and visual contact between a noncustodial parent …

No.18 - March 2011, Center Of Civil Law Studies

The Center of Civil Law Studies Newsletter

No abstract provided.

Recovering The Legal History Of The Confederacy, G. Edward White

Washington and Lee Law Review

Although the government of the Confederate States of America has been formally treated as a legal nullity since 1878, from February, 1861 to April, 1865 the Confederacy was a real government, with a Constitution, a Congress, district courts, and administrative offices. This Article seeks to recover the legal order of the Confederacy in its robust state, before the prospect of its obliteration came to pass. The Article explores the question why certain southern states would have considered seceding from the United States, and forming a separate nation, in late 1860 and early 1861. It then turns to the legal order …

Attorney Advice And The First Amendment, Renee Newman Knake

Washington and Lee Law Review

An attorney’s advice for navigating and, when necessary, challenging the law is essential to American democracy. Yet the constitutional protection afforded to this category of speech is not clear; indeed, some question whether it should be protected at all. While legal ethics scholars have addressed attorney speech in other circumstances, none has focused exclusively on the First Amendment protection for attorney advice, particularly in light of the Supreme Court’s recent attention to the matter. Nor have constitutional law scholars given this issue the attention it deserves, though they acknowledge that it presents an important and unresolved question within First Amendment …

The Church Amendment: In Search Of Enforcement, Nathaniel James

Washington and Lee Law Review

No abstract provided.

Through The Lens Of Federal Evidence Rule 403: An Examination Of Eyewitness Identification Expert Testimony Admissibility In The Federal Circuit Courts, Lauren Tallent

Washington and Lee Law Review

No abstract provided.

Arguments Not Raised: How The Plaintiffs’ Missed Opportunity Led To The Tenth Circuit’S Decision In June V. Union Carbide Corp., Nathan White

BYU Law Review

No abstract provided.

Civilized Borders: A Study Of Israel's New Border Regime, Irus Braverman

Journal Articles

At Israel’s new border crossings with the West Bank, modernization has become the buzz-word: not only referring to modernized mechanical means – a Wall, newly designed crossings, and micro-mechanics such as turnstiles, signs, and fences – but also to new and sophisticated scientific technologies, such as sensor machines and scanners, and to modernized means of identification, such as advanced computer systems and biometric cards. This paper considers the transformation of the Israel-West Bank border to be a result of four major processes: reterritorialization, bureaucratization, neoliberalization, and de-humanization. I utilize in-depth interviews with top military and state officials and with human …

Making The Best Of Felony Murder, Guyora Binder

Journal Articles

Although scorned as irrational by academics, the felony murder doctrine persists as part of our law. It is therefore important that criminal law theory show how the felony murder doctrine can be best justified, and confined within its justifying principles. To that end, this Article seeks to make the best of American felony murder laws by identifying a principle of justice that explains as much existing law as possible, and provides a criterion for reforming the rest. Drawing on the moral intuition that blame for harm is properly affected by the actor’s aims as well as the actor’s expectations, this …

New Start: The Contentious Road To Ratification, Elizabeth Zolotukhina

Journal of Strategic Security

Senate ratification of the New START treaty re-established effective bilateral inspection and monitoring of American and Russian nuclear holdings and has the potential to further enhance U.S.-Russian cooperation on key issues, including containing the Iranian nuclear program, and further reductions in the two countries' arsenals. Although the accord was widely heralded as a foreign policy success of the Obama administration, the contentious Senate ratification may impede future progress on arms control.

Deal Or No Deal: Why Courts Should Allow Defendants To Present Evidence That They Rejected Favorable Plea Bargains, Colin Miller

Faculty Publications

No abstract provided.

Legal Beagle Blog (March 2011), Roger Williams University School Of Law Library

Law Library Newsletters/Blog

No abstract provided.

Joe The Ploughman Reads The Constitution, Or, The Poverty Of Public Meaning Originalism, Jack N. Rakove

San Diego Law Review

Originalism is hot. A couple of decades ago, one might have thought that its death knell had sounded when the Supreme Court nomination of Robert Bork failed in the Senate. Although one wondered exactly what kind of originalism Justice Bork might have performed in practice, he was regarded as the theory's leading academic spokesman, and the defeat of his nomination might have served as a fatal blow to the cause. Within a few years, however, Justice Antonin Scalia published his lecture Originalism: The Lesser Evil, signaling that the cause remained alive and well. Although Justice Scalia's views of the practice …

The Untaxed King Of South Beach: Lebron James And The Nba Salary Cap, Mitchell L. Engler

San Diego Law Review

In contrast to Major League Baseball, the National Basketball Association (NBA) has a salary cap designed to provide every team an equal and fair chance of competing for the championship. The Miami Heat's recent, incredible success in signing the game's three most hotly desired free agents, including mega-superstars LeBron James and Dwyane Wade, therefore flies in the face of the NBA's attempted level playing field. How could one team so outmaneuver all the others in a sport that tried to eliminate such uncompetitive results via a salary cap?

As discussed in this Article, the answer lies in the law of …

Closing One Loophole And Opening Another: Why Section 271(F) Patent Infringement Should Apply To Method Patents After Cardiac Pacemakers, Michael Silhasek

San Diego Law Review

This Comment will address the applicability of § 271(f) to method patents compared with other patented inventions-machines, manufactures, and compositions of matter. Part II will briefly discuss the primary purpose of the infringement statute, which is to encourage inventive action by granting rights to a patent holder. Part III will discuss the history of § 271(f) and the section's applicability to process patents. The Federal Circuit questioned the section's applicability to method patents, then affirmed it, then questioned it again, and then, most recently, rejected it. Part IV will examine other foreign activity that could lead to domestic infringement. Part …

National Consensus, Retributive Theory, And Foundations Of Justice And Morality In Eighth Amendment Jurisprudence: A Response To Advocates Of The Child Rape Death Penalty Statute In Kennedy V. Louisiana., Shandrea P. Solomon

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract Forthcoming.

Closing The Courthouse Doors: The Implications Of The Discovery Of Immigration Related Facts And The Effects Of Sec. 30.014 Of The Texas Civil Practice & Remedies Code., Guillermo M. Hernandez Iii

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract Forthcoming.

Litigation, Legislation, And Democracy In A Post-Newspaper America, Ronnell Anderson Jones

Washington and Lee Law Review

No abstract provided.

The Remix Artist’S Catch-22: A Proposal For Compulsory Licensing For Transformative, Sampling-Based Music, Robert M. Vrana

Washington and Lee Law Review

No abstract provided.

Initial Research On The Malfunctions Of The Criminal Process, Chen Ruihua, Timothy Webster

Washington International Law Journal

In recent years, as China’s legislature has placed the amendment of the Criminal Procedure Law on its legislative plan, more and more legal scholars are paying attention to the problem. Legal academics have produced a series of theses and books, and qualified scholars have even organized experts’ drafts of the Criminal Procedure Law, offering comprehensive and systematic theoretical works on how to revise the law. I participated in scholarly activities organized by the Criminal Affairs Committee of the All China Lawyers Federation, and drafted the first lawyers’ edition of the revised Criminal Procedure Law. Thus, the next revision of the …