Law Commons^™

An Empirical Analysis Of Empirical Legal Scholarship Production, 1990-2009, Michael R. Heise

Cornell Law Faculty Publications

Inspired by the retirement of Professor Tom Ulen of the University of Illinois, the author considers the growth and development of empirical legal scholarship over two decades—a period of time that corresponds, not coincidentally, with Professor Ulen’s career. Starting in the 1990s when empirical scholarship had not yet “caught on,” the author first documents the increase in quantity of empirical scholarship over two decades. Next, the author applies a law and economics perspective to the recent surge in empirical scholarship, explaining that the trend has been fueled by an increase in the number of empirically trained scholars and also by …

The French Jury At A Crossroads, Valerie P. Hans, Claire M. Germain

Cornell Law Faculty Publications

No abstract provided.

Family Structure As A Social Context For Family Conflict: Unjust Strain And Serious Delinquency, Ryan Spohn, Don L. Kurtz

Center on Children, Families, and the Law: Faculty Publications

Two major themes in the delinquency literature are the roles of family structure and childhood victimization. Combining these two lines of research, the current project examines the unique contribution of family structure and victimization on the serious delinquency of a nationally representative sample of adolescents. In addition, we examine whether the form of families serves to condition the relationship between victimization and delinquency. Past research indicates that abuse is more likely to occur in two-parent families of a ‘‘mixed’’ form, specifically in the presence of a live-in boyfriend or stepfather. However, little is known regarding the impact of victimization on …

Who Cares?, Gabriel H. Teninbaum

Suffolk University Law School Faculty Works

Imagine you represent a criminal defendant convicted of second-degree murder stemming from the killing of his own father. Assume that a jury is charged with deciding the defendant's prison sentence and that you, as the defendant's attorney, are tasked with making a closing argument seeking the shortest term possible. You have been presented with two options as to how to do it: you can make a closing argument that uses rhetorical questions to summarize and reinforce key points, or, alternatively, you can use a closing argument that summarizes and reinforces key points through declarative statements.

Does it matter which option …

Green Infrastructure: The Imperative Of Open Space Preservation, Janice C. Griffith

Suffolk University Law School Faculty Works

Open space preservation ranks among America's most deeply rooted traditions. The creation of green, civic open spaces was recognized as an important design concept in the formation of a number of the country's early cities. Philadelphia, Savannah, and New Haven were developed around squares of green open space. Most New England towns set aside a town common for grazing cattle and for a myriad of public uses. The first planned suburbs were also organized around protected open spaces.

The environmental movement in the 1970s brought renewed attention to the importance of open space preservation, but the cost of making it …

Top Tens In 2010: Patent, Trademark, Copyright And Trade Secret Cases, Stephen M. Mcjohn

Suffolk University Law School Faculty Works

This piece discusses notable intellectual property decisions in 2010 in the United States. Viewed across doctrinal lines, some interesting threads emerge. The scope of protection was at issue in each area, such as whether human genes and business methods are patentable, whether a product idea may be a trade secret, and where the constitutional limits on copyright legislation lie. Secondary liability remains widely litigated, as rights holders seek both deep pocket defendants and a means to cut off individual infringers. The courts applied slightly different standards as to the state of mind required for secondary liability. Many of the cases …

Leverage: Review Of Burk & Lemley, 'The Patent Crisis And How The Courts Can Solve It', Stephen M. Mcjohn

Suffolk University Law School Faculty Works

Dan L. Burk and Mark A. Lemley’s “The Patent Crisis and How the Courts Can Solve It” (The University of Chicago Press, 2009) is valuable for anyone interested in patent law. The book serves two goals. First, it suggests how patent reform in the United States can best be accomplished: not through Congressional amendment of the patent statute, but by judicial implementation of industry-specific reforms, in interpreting the existing act. Some jurisdictions, such as India, already differentiate between industrial sectors more explicitly in patent policy than the United States. Second, of interest to patent law worldwide, the book provides a …

Groundwater Policy In The Western United States, Denise D. Fort, Summer Mckean

Faculty Scholarship

Groundwater mining is inadequately addressed by state and federal policies in the United States. New Mexico's failure to manage groundwater aquifers has resulted in costly federal rescue projects. Better information and involvement of communities in groundwater policy would provide for more sustainable use of this resource.

Copyright And Research In Google Book Search, Benjamin J. Keele

Library Staff Publications

Many researchers—even trained professionals—often use the Google search engine to begin searches for information. Google’s many products enable researchers to search public websites, scholarly articles, and even patents. One vast area of information not yet thoroughly indexed by Google is print books. Google Book Search (also at times referred to as Google Books, Google Print and Google Library Project) is the company’s effort to digitize and index the world’s print literature.

The Financial Crisis Of 2008-09: Capitalism Didn't Fail, But The Metaphors Got A 'C', Jeffrey M. Lipshaw

Suffolk University Law School Faculty Works

This is a paper for the Minnesota Law Review's October 15, 2010 symposium, "Government Ethics and Bailouts: Past, Present, and Future." The panel topic is "The Past: Did Capitalism Fail?" The paper addresses not the merits and demerits of modern global financial systems, but instead how those of us who are not financial professionals might make sense of them, particularly when they are in catastrophic mode. The thesis is that the question itself reveals the extent to which the financial crisis has not been so much about whether an economic system succeeds or fails, but the meaning human beings draw …

The Over-Protection Of Intellectual Property Rights In Sport In The United States And Elsewhere, J. Gordon Hylton

Faculty Publications

No abstract provided.

Unnatural Resource Law: Situating Desalination In Coastal Resource And Water Law Doctrines, Michael Pappas

Publications

This Article offers the first legal analysis of desalination, the process of converting saltwater into freshwater. Desalination represents a key climate change adaptation measure because the United States has exploited nearly all of its freshwater resources, freshwater demands continue to grow, and climate change threatens to diminish significantly existing freshwater supplies. However, scholarship has yet to address the legal ambiguities that desalination raises in the context of property, water law, and coastal resource doctrines.

This Article addresses these ambiguities and suggests the legal adaptations necessary to accommodate desalination as a climate change adaptation. Under current legal doctrines, the chain of …

How Goliath Won: The Future Implications Of Dukes V. Wal-Mart, Suzette M. Malveaux

Publications

No abstract provided.

Who Killed The Hybrid Car? State And Local Green Incentive Programs After Metropolitan Taxicab V. City Of New York, Jonathan Skinner

Publications

Unnecessarily broad preemption ruling under the Energy Policy and Conservation Act discourages other states and municipalities from pursuing innovative, environmentally beneficial policies.

The Inefficiencies And Deficiencies Of Waste Coal, Jonathan Skinner, Michael Brown

Publications

No abstract provided.

Old Enough To Fight, Old Enough To Swipe: A Critique Of The Infancy Rule In The Federal Credit Card Act, Andrew A. Schwartz

Publications

In the 1960s and 1970s, American society came to the considered conclusion that if eighteen-year-olds can be drafted to fight and possibly die for their country, they should be treated as adults under the law. Thus, in 1971, the Twenty-Sixth Amendment to the United States Constitution, which lowered the voting age to eighteen from twenty one, was proposed and ratified in just three months, making it the fastest amendment in American history. The minimum age for federal and state jury service was also lowered to eighteen from twenty one. And, with regard to contract law, every state passed legislation reducing …

Section 5 Constraints On Congress Through The Lens Of Article Iii And The Constitutionality Of The Employment Non-Discrimination Act, Craig Konnoth

Publications

The Employment Non-Discrimination Act (ENDA) that will (hopefully) soon prohibit discrimination against LGB, and ideally, T, individuals, allows state employees to sue states for this discrimination. Scholars and activists fear that these provisions will be struck down as violative of state sovereign immunity, using the Court's recent jurisprudence on Section 5 of the Fourteenth Amendment. This jurisprudence requires Congress to put forth evidence of past state violations of a defined constitutional right before it can subject states to suit. This Congress has done.

However, this Comment suggests that a new requirement of Section 5 legislation is in the works. Key …

Veil Piercing To Non-Owners: A Practical And Theoretical Inquiry, Mark J. Loewenstein

Publications

In the typical veil piercing case, the plaintiff seeks to hold the owners of an entity liable for the entity’s obligations. Recently, however, plaintiffs have sought to hold managers of an entity liable for the entity’s obligations even if the manager is not an owner. This article considers this phenomenon in light of the underlying theory of veil piercing and in the context of both corporate law and the law of limited liability companies. In brief, the theory of veil piercing in its traditional application – to shareholders of a corporation – is weak, and it is weaker still when …

Teaching Values, Teaching Stereotypes: Sex Education And Indoctrination In Public Schools, Jennifer S. Hendricks, Dawn Marie Howerton

Publications

Many sex education curricula currently used in public schools indoctrinate students in gender stereotypes. As expressed in the title of one article: "If You Don't Aim to Please, Don't Dress to Tease," and Other Public School Sex Education Lessons Subsidized by You, the Federal Taxpayer, Jennifer L. Greenblatt, 14 Tex.J. on CL. & CR. 1 (2008). Other lessons pertain not only to responsibility for sexual activity but to lifelong approaches to family life and individual achievement. One lesson, for example, instructs students that, in marriage, men need sex from their wives and women need financial support from their husbands. …

David H. Getches: 1942-2011, James N. Corbridge Jr.

Publications

No abstract provided.

Implementing American Health Care Reform: The Fiduciary Imperative, Dayna Bowen Matthew

Publications

The success of health reform under the Patient Protection and Affordable Care Act of 2010 will depend upon the sustainability of a brand new and infrastructure of entities, relationships, and procedures. So far, neither jurists, legislators, policy-makers, providers, payers, nor patients have identified an organizing paradigm to implement or regulate this vast new infrastructure. Legal scholars have been curiously absent from this policy discussion, offering little if any insight into the role law plays beyond the familiar political debates about health reform. This article draws a legal chair to the table and takes a refined look at the legal basis …

Domestic Violence And State Intervention In The American West And Australia, 1860-1930, Carolyn B. Ramsey

Publications

This Article calls into question stereotypical assumptions about the presumed lack of state intervention in the family and the patriarchal violence of Anglo-American frontier societies in the late nineteenth and early twentieth centuries. By analyzing previously unexamined cases of domestic assault and homicide in the American West and Australia, Professor Ramsey reveals a sustained (but largely ineffectual) effort to civilize men by punishing violence against women. Husbands in both the American West and Australia were routinely arrested or summoned to court for beating their wives in the late 1800s and early 1900s. Judges, police officers, journalists, and others expressed dismay …

How Can The Rural Energy Poor Obtain Appropriate Sustainable Energy Technologies?, Michael Waggoner

Publications

Solutions to a current serious problem for the rural energy poor might best be found at least in part in older practices.

The problem comes from cooking over open fires, impairing the health of the cook and of others in her family, using fuel so inefficiently as to threaten forests, and releasing soot that contributes to global warming. Small, cheap, reliable cooking stoves could address these issues, improving health by reducing smoke and exhausting it through a chimney and thus away from the cook, using fuel more efficiently so that less needs to be gathered, and more completely burning the …

Efficient Uncertainty In Patent Interpretation, Harry Surden

Publications

Research suggests that widespread uncertainty over the scopes of issued patents creates significant costs for third-party firms and may decrease innovation. This Article addresses the scope uncertainty issue from a theoretical perspective by creating a model of patent claim scope uncertainty.

It is often difficult for third parties to determine the legal coverage of issued patents. Scope underdetermination exists when the words of a patent claim are capable of a broad range of plausible scopes ex ante in light of the procedures for interpreting patents. Underdetermination creates uncertainty about claim coverage because a lay interpreter cannot know which interpretation will …

Teaching Controversial Topics, Jennifer S. Hendricks, Beth Burkstrand-Reid, June Carbone

Publications

At the 2009 Future of Family Law Education conference at the William Mitchell School of Law,4 the authors participated in a panel discussing strategies for teaching controversial topics, which focused on teaching reproductive rights and related gender issues. This essay collects some of the strategies discussed at the conference. First we address what constitutes a "controversial" legal topic, outlining the several different ways in which a topic might be or become controversial within the context of a particular class. Next, we discuss the importance of laying the groundwork, throughout the semester, for the anticipated-and unanticipated-discussions surrounding controversial topics and techniques …

Games And Other Uncopyrightable Systems, Bruce E. Boyden

Faculty Publications

This article solves two puzzles in copyright law. First, it has long been blackletter law that games are not copyrightable. But the origins of this rule are lost to history, and the reasons for it are not obvious. Second, it has never been adequately explained what makes something a “system” excluded from copyright protection under Section 102(b) of the Copyright Act. Modern courts interpret “system” as merely a synonym for “idea” or “process,” two other categories of exclusions. Others have interpreted it using the broadest definition in the dictionary, which would sweep in large amounts of copyrightable material as well. …

Market Integration And (The Limits Of) The First Sale Rule In North American And European Trademark Law, Irene Calboli

Faculty Publications

This Article explores the intricate relationship between the exercise of trademark rights and the free movement of goods in the marketplace, and considers the effectiveness and the limitations of the principle of trademark first sale (also known as trademark exhaustion) in promoting the free movement of goods across international borders, notably across members of free trade areas. In particular, this Article examines the application of the principle of trademark first sale and the resulting process of market integration that has characterized to date the members of NAFTA and the European Union. Based upon this comparison, this Article argues that the …

There’S No Place Like Home: Applying Dispute Systems Design Theory To Create A Foreclosure Mediation System, Andrea Kupfer Schneider, Natalie C. Fleury

Faculty Publications

This article analyzes the theory of dispute system design when put into action to meet a current economic crisis. In partnership with the City of Milwaukee, Marquette University Law School designed and now operates a voluntary mediation program to deal with the foreclosure crisis. The creation of the Marquette Foreclosure Mediation Program (MFMP) is a case study in dispute system design. Because MFMP is unlike other foreclosure mediation programs - in that it is was designed in conjunction with and is now operated by a law school - the design structure and results analysis are unique and can provide important …

Dynamic Patent Governance In Europe And The United States: The Myriad Example, Kali Murray, Esther Van Zimmeren

Faculty Publications

This Article examines the emerging elements of a new model for patent governance. It is divided into four parts. In Section One, we develop a model of dynamic patent governance. This model extends the theoretical framework of network governance, to explain the emergence of networks in the decisionmaking infrastructure for the public and private actors in the patent system. Dynamic patent governance widens this theoretical framework in two key ways. First, dynamic patent governance, within its formal dimensions, is based on the idea that heterogeneous administrative actors regulate the grant and enforcement of patents. This challenges a perspective that sees …

The Value Of Detective Stories, Amy Gajda

Colorado Technology Law Journal

No abstract provided.