Law Commons^™

Patent Amicus Briefs: What The Courts’ Friends Can Teach Us About The Patent System, Colleen Chien

Faculty Publications

Over the last two decades, more than a thousand amici, representing hundreds of organizations, companies, and individuals, have signed onto amicus briefs in over a hundred patent cases, many of them landmark decisions. This paper turns the spotlight on these “behind-the-scenes” actors in the patent system, combining theoretical insights with an empirical study of amicus briefs filed in patent cases over the last 20 years in an examination of patent interest groups, the positions they have advocated, and the effectiveness of their advocacy. Amicus filers appear to have been instrumental in shaping the courts’ agenda; the Supreme Court was seven …

Reasoning About The Irrational: The Roberts Court And The Future Of Constitutional Law, H. Jefferson Powell

Faculty Scholarship

Commentary on the future direction of the Roberts Court generally falls along lines that correlate with the commentators' political views on the desirability of the Court's recent decisions. A more informative approach is to look for opinions suggesting changes in the presuppositions with which the Justices approach constitutional decision making. In footnote 27 in his opinion for the Court in the District of Columbia v. Heller Second Amendment decision, Justice Scalia suggested a fundamental revision of the Court's assumptions about the role of judicial doctrine, and the concept of rationality, in constitutional law. Justice Scalia would eliminate the normative aspects …

Continental Shelf Delimitation Beyond 200 Nautical Miles: Approaches Taken By Coastal States Before The Commission On The Limits Of The Continental Shelf, Coalter G. Lathrop

Faculty Scholarship

No abstract provided.

The Regrettable Clause: United States V. Comstock And The Powers Of Congress, H. Jefferson Powell

Faculty Scholarship

In this Article, Powell argues that in Comstock, the Court encountered one of the oldest and most basic constitutional issues about the scope of congressional power-whether there are justiciable limits to the range of legitimate ends Congress may pursue. The Justices, without fully recognizing the fact, were taking sides in an ancient debate, and in doing so, they inadvertently reopened an issue that ought to be deemed long settled. Part II of the Article first addresses the question before the Court in Comstock, which was limited to a pure question of Article I law: is a specific provision of a …

The Origins Of The American Military Coup Of 2012, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Corruption, Clients, And Political Machines A Response To Professor Issacharoff, Stephen E. Sachs

Faculty Scholarship

Responding to Samuel Issacharoff, On Political Corruption, 124 Harv. L. Rev. 118 (2010) In his comment on political corruption, Professor Samuel Issacharoff questions traditional accounts that aim to squeeze money out of politics entirely. Instead, he focuses on the danger that political spending will promote private influence over government policy. In this response, Professor Stephen E. Sachs argues that "private influence" is itself too broad a category to control, and that campaign finance policy should be restricted to a more manageable scope. Professor Sachs argues that if protecting the government from private influence is too diffuse a goal, we …

Contracts Meet Henry Ford, Barak D. Richman

Faculty Scholarship

Legal scholars and legal educators view contracts as a welfare-maximizing (or optimal risk-allocating) device for two or more parties. Because we cling to this principal-driven paradigm, we think of lawyers only as the proverbial “transaction cost engineers,” the loyal agents of parties to a transaction. And whenever we observe contracts that appear to be suboptimal, we blame agency costs. We instead should apply the literature on organizational economics to understand the production of contracts by the modern law firm. This literature better illustrates how law firms organize, why they produce the products they do, and why those products sometimes exhibit …

Intergenerational Ties In Context: Grandparents Caring For Grandchildren In China, Guangya Liu, Feinian Chen, Christine A. Mair

Faculty Scholarship

Guided by theories and empirical research on intergenerational relationships, we examine the phenomenon of grandparents caring for grandchildren in contemporary China. Using a longitudinal dataset (China Health and Nutrition Survey), the authors document a high level of structural and functional solidarity in grandparent-grandchildren relationships. Intergenerational solidarity is indicated by a high rate of coresidence between grandchildren and grandparents, a sizable number of skipped-generation households (no parent present), extensive childcare involvement by non-coresidential grandparents, and a large amount of care provided by coresidential grandparents. Multivariate analysis further suggests that grandparents’ childcare load is adaptive to familial needs, as reflected by the …

The Case For Legal Regulation Of Physicians’ Off-Label Prescribing, Doriane Lambelet Coleman, Philip M. Rosoff

Faculty Scholarship

No abstract provided.

Regulating Systemic Risk: Towards An Analytical Framework, Steven L. Schwarcz, Iman Anabtawi

Faculty Scholarship

The global financial crisis demonstrated the inability and unwillingness of financial market participants to safeguard the stability of the financial system. It also highlighted the enormous direct and indirect costs of addressing systemic crises after they have occurred, as opposed to attempting to prevent them from arising. Governments and international organizations are responding with measures intended to make the financial system more resilient to economic shocks, many of which will be implemented by regulatory bodies over time. These measures suffer, however, from the lack of a theoretical account of how systemic risk propagates within the financial system and why regulatory …

Compensating Market Value Losses: Rethinking The Theory Of Damages In A Market Economy, Steven L. Schwarcz

Faculty Scholarship

The BP Deepwater Horizon spill and the Toyota car recalls have highlighted an important legal anomaly that has been overlooked by scholars — judicial inconsistency and confusion in ruling whether to compensate for the loss in market value of wrongfully affected property. This article seeks to understand the anomaly and, in the process, to build a stronger foundation for enabling courts to decide when — and in what amounts — to award damages for market value losses. To that end, the Article analyzes the normative rationales for generally awarding damages, adapting those rationales to derive a theory of damages that …

Supreme Court Decisions: The Power Of Substanative Due Process, Steven-Paul Lapid

Senior Honors Theses and Projects

One of the fundamental elements of our government system is the broad concept of a right to fair treatment -- that even those accused or guilty of violating the law have due to them the right to a fair process. However, we regard a citizen's right to life, liberty, and property to be so significant or substantive that there is no due process fair enough to cover infringement of certain freedoms. This has come to be known as substantive due process. Through an analysis of judicial theory and Supreme Court decisions, I compare the use of substantive due process on …

Creating Hope: Mental Health In Western Australian Maximum Security Prisons, Jennifer Fleming, Natalie Gately, Sharan Kraemer

Research outputs pre 2011

The status of prisoners’ mental health has wide-reaching implications for prison inmates, prison authorities and institutions, and the general community. This paper presents the mental health findings from the 2008 Health of Prisoner Evaluation (HoPE) pilot project in which 146 maximum security prisoners were interviewed across two prisons in Western Australia. Results revealed significant discrepancies across gender and Indigenous status regarding the history and treatment of mental health complaints, use of prescribed psychiatric medication, and experience of psychosocial distress. Illicit drug use and dependency, as well as patterns of self-harm and suicide are also reported. These findings highlight that imprisonment …

Virtual Child Pornography Laws And The Constraints Imposed By The First Amendment, Paula Bird

Barry Law Review

This article seeks to navigate through the complexities involved with the uncertain future of virtual child pornography laws. First, this article sets forth a brief history of the legislative actions and court rulings regarding unprotected speech and virtual child pornography, and discusses the current standing of child pornography laws. Entailed in this discussion will be a vigorous inspection of the current statutes and how they simultaneously affect law enforcement, prosecutors, and defendants. Finally, the potential future of laws regarding virtual child pornography is analyzed, including addressing the issues of how the application and interpretation of the laws are changing and …

Therapeutic Jurisprudence And Child Protection, Shelley Kierstead

Barry Law Review

No abstract provided.

Original Habeas Redux, Lee B. Kovarsky

Faculty Scholarship

This article explores what is perhaps the Supreme Court’s most exotic appellate power— its authority to issue (inaptly-named) “original” writs of habeas corpus. Although I have been working on Original Habeas Redux for some time, the Troy Davis case has recently thrust this topic into the national spotlight. In Davis (2009), the Supreme Court exercised, for the first time in over forty years, its power to transfer an original habeas petition to a district court for merits adjudication. Having collected and tabulated two decades of new data, I argue that Davis is not a blip in an otherwise constant state …

Where Do We Go From Padilla V. Kentucky? Thoughts On Implementation And Future Directions, Maureen A. Sweeney

Faculty Scholarship

On March 31, 2010, the U.S. Supreme Court held in the landmark case of Padilla v. Kentucky that the Sixth Amendment right to effective assistance of counsel in criminal cases includes the right for non-U.S. citizens to be correctly and specifically advised about the likely immigration consequences of a plea agreement. The decision represents an important shift in the way courts have addressed such claims by noncitizen defendants. The Court’s decision recognizes a constitutional requirement that defense counsel provide advice in an area of law in which few defense counsel are knowledgeable, and therefore raises important and difficult questions about …

Penalty And Proportionality In Deportation For Crimes, Maureen A. Sweeney, Hillary Scholten

Faculty Scholarship

No abstract provided.

Creating Reform That Is Sustainable For Investors, Luis A. Aguilar

Journal of International Business and Law

No abstract provided.

Cuban Baseball Players, The Unlucky Ones: United States-Cuban Professional Baseball Relations Should Be An Integral Part Of The United States-Cuba Relationship, Rachel D. Solomon

Journal of International Business and Law

No abstract provided.

Is China's Manipulation Of Its Currency An Actionable Violation Of The Imf And/Or The Wto Agreements?, Elizabeth L. Pettis

Journal of International Business and Law

No abstract provided.

The Need For A Robust Response To Chinese Currency Manipulation - Policy Options For The Obama Administration Including Countervailing Currency Intervention, C. Fred Bergsten

Journal of International Business and Law

No abstract provided.

Duties Of Flag States To Implement And Enforce International Standards And Regulations - And Measures To Counter Their Failure To Do So, Tamo Zwinge

Journal of International Business and Law

The article investigates the duties of flag States to implement and enforce international standards and regulations. Two related but still distinct topis are treated: General duties of flag States (applicable especially to merchant vessels) and duties concerning fishing vessels. After scrutinising the reasons for inadequate flag State implementation and enforcement, the author discusses possible counter measures of non-flag States. The article notably evaluates systems of Port State Control and possibilities of non-flag States to enforce RFMO regulations and other fishing vessel responsibilities against non-member vessels. Finally, possible consequences against the flag State itself as opposed to merely its vessels are …

Golan V. Holder: A Step In The International Direction For United States Copyright Law, Nicole Maciejunes

Journal of International Business and Law

No abstract provided.

Patent Law And The Duty Of Candor: Rethinking The Limits Of Disclosure, Jay Erstling

Faculty Scholarship

No abstract provided.

Mortgage Foreclosure Mediation In Florida - Implementation Challenges For An Institutionalized Program,, Sharon Press

Faculty Scholarship

This Symposium is filled with examples from around the country of states grappling with how to respond to the economic crisis in general and the overwhelming number of mortgage foreclosure cases in particular. In Part II of this article, the author identifies the key impacts institutionalization had on implementation efforts. Part III describes the various approaches pursued to address the obstacles. In this part, the author examines in detail the development of a rule to define “appearance” at mediation because of its implications for the practice of mediation as a whole beyond merely the foreclosure context. Part IV provides the …

The United States, Pakistan, The Law Of War And The Legality Of The Drone Attacks, Kurt Larson, Zachary Malamud

Journal of International Business and Law

No abstract provided.

Comparative Effectiveness Research In The United States, Sonsy Pulikotil Rajan

Journal of International Business and Law

No abstract provided.

Open Letter To Director David Kappos Of The United States Patent And Trademark Office, Kenneth L. Port

Faculty Scholarship

I appreciate the opportunity to respond to the Request for Comments on the extent to which small businesses may be harmed by litigation tactics by corporations‟ attempts to enforce trademark rights beyond a reasonable interpretation of the scope of the rights granted to the trademark owner; the best use of Government services to protect trademarks and prevent counterfeiting; and appropriate policy recommendations.

The PTO should be commended for considering whether the use of trademark litigation as a form of “bullying” is a problem for the U.S. trademark system. While some consider trademark litigation as a justifiable effort to police marks …

Advocacy, True Threats, And The First Amendment, Mark Strasser

UC Law Constitutional Quarterly

Brandenburg v. Ohio is thought by many to represent an extremely speech-protective doctrine. Yet, much of the protection offered by Brandenburg can easily be swallowed up by the true threat doctrine, which provides the basis for a robust exception to First Amendment protections. Both the Brandenburg protections and the true threat exception are important to maintain-the great challenge for the Court is to include both within the formulation and articulation of First Amendment jurisprudence so that sufficient protection is afforded to the implicated societal and the individual interests represented by each. Regrettably, rather than provide helpful guidelines that would establish …