Law Commons^™

Whose Discovery Rules Shall Apply?: Resolving The Circuit Split Involving 35 U.S.C. § 23 And 35 U.S.C. § 24, Thomas C. Walsh

Liberty University Law Review

When courts ignore the plain meaning of statutes, they fail to interpret the statutes in accordancewith the objective intent ofCongress. This has happened in relation to 35 U.S.C. §§ 23 and 24, which are statutes governing discovery rules for proceedings within the United States Patent and Trademark Office’s courts. As a result, the law has been in a state of flux for nearly fifty years. In 1952, Congress passed the Patent Act of 1952. As part of the Act, Congress passed 35 U.S.C. § 23, which gives discretionary authority to the Director of the United States Patent and Trademark Office …

Standing At A Crossroads: How To Navigate The Intersection Of Title Vii And Rfra In Federal Employment Religious Discrimination Cases, Rylee B. Seabolt

Liberty University Law Review

What do apple pie, religious discrimination, a global pandemic, and federal employees all have in common? They are each part of the landscape surrounding the intersection of Title VII and RFRA. But the landscape is in dire need of rejuvenation pruning. To date, many lower courts have held that Title VII preempts RFRA in cases where a federal employee claims they have suffered religious discrimination in the workplace. This is problematic because, not only was RFRA passed with the intention that it would cover all cases and preempt laws passed before and after it, but more importantly, RFRA’s strict scrutiny …

Dancing In The Dark: Exploring The Collision Of Copyright With Nfts & The Works They Represent, Jake L. Bryant

Liberty University Law Review

The artist creates, by the mixing of his hands and his mind, an expression of story, life, or memory that, when offered to the world, grants others the ability to recall some element of the human experience through a perspective different from their own. The law has long recognized one’s right to one’s intangible property, offering copyright protection to authors for their works. This protection does not exist at the time of a legal declaration, but rather at the time the work is created. However, copyright protection is not unlimited, and authors do not enjoy a monopoly over every expression …

The Excessive Fines Clause: Assessing Proportionality Of Fines Through Civil Asset Forfeiture By Multi-Factor Tests In The Wake Of Timbs V. Indiana, Lauren V. Parrottino

Liberty University Law Review

This article analyzes the approaches to assessing the proportionality of fines imposed by civil asset forfeiture. In many cases, fines imposed by civil asset forfeiture consist of property. Without clear Supreme Court guidance on the matter of evaluating just what makes a fine “excessive,” I turned to the proportionality jurisprudence from the Eighth Amendment’s Cruel and Unusual Punishments Clause. While many circuits have proposed their own tests for excessive fines imposed through forfeiture, I propose an objective multi-factor test that will measure a fine’s proportionality to avoid excessiveness.

Proving A Violation Of The False Claims Act Through Deliberate Ignorance, Joel D. Hesch

Liberty University Law Review

When Congress amended the False Claims Act (FCA) in 1986, it established three separate and distinct ways to establish requisite knowledge. A person violates the FCA when they (1) have actual knowledge, (2) act with deliberate ignorance of the truth, or (3) act in reckless disregard of the truth. The three FCA knowledge standards are differentiated not by ease of proof but by specific application. Merely because deliberate ignorance is the least common standard does not make it less important or harder to prove. This Article gathers and evaluates the handful of Circuit Courts of Appeals cases that specifically address …

Cardozo Law News Brief: January 13, 2023, Benjamin N. Cardozo School Of Law

Cardozo Law News Brief 2023

Featured Faculty:

• Jocelyn Getgen Kestenbaum
• Gaia Bernstein
• Pamela Foohey
• Young Ran (Christine) Kim
• Michel Rosenfeld

Events:

• The 2023 Cardozo-Columbia Colloquium on Sovereignty, the Rule of Law and Fundamental Rights in an Era of National and International Turmoil
• 50 Years of Title IX: The Pivot to Justice in Women’s Gymnastics
• Benin Bronzes: Restitution and Reparation
• Professor David Rudenstine Moderates “The Supreme Court in Crisis”
• “Call Me Dancer,” a client film of the Filmmakers Legal Clinic, will be shown at the Dance on Camera Festival
• Class of 2023 Commencement

At A Glance: Defining Missouri’S Homeschooling Regulations, Christine Hall

SLU Law Journal Online

American parents have a right to homeschool their children, and it is only growing in popularity. Each state has the power to regulate homeschooling, and some do not regulate it at all. In this article, Christine Hall analyzes the practical application of Missouri's homeschooling statute and argues for a change in these regulations.

C. Leon Nelson And Marilynn Tetrick, Defendants/ Appellants, V. Karen Goldberg, Marc Goldberg, Thomas Goldberg Elaina Friedman, And Martin Krone, Plaintiffs /Appellees : Reply Brief, Utah Supreme Court

Utah Supreme Court Briefs (2021– )

Cameron L. Sabin, Joshua Cutler, Counsel for appellees

Cameron L. Sabin, Joshua Cutler, Counsel for appellees

Ryan B. Hancey, Adam L. Grundvig, J. Adam Knorr, Counsel for appellants

State Of Utah, Plaintiff /Appellee, V. Phillip Mason King, Defendant /Appellant : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

On appeal from the Second Judicial District Court, Weber County, Honorable Michael DiReda, District Court No. 191900996

Sean Reyes, Counsel for Appellee

Freyja Johnson, Hannah Leavitt-Howell, Counsel for Appellant

The Local Pages Of Nevada, Llc, Plaintiff/Appellant V. Plumb Line Mechanical, Inc., Defendant/Appellee : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Appeal from the Third Judicial District Court, Salt Lake County, State of Utah Honorable Laura Scott, District Court Judge

Jordan K. Cameron, David B. Nielson, Attorneys for Appellee Plumb Line Mechanical Inc.

D. Scott Crook, Attorneys for Appellant The Local Pages of Nevada LLC

440 North Sf, Llc, Plaintiff And Appellant, V. Vista Heights Investments, Llc,, And Sii Megadiamond, Inc., Defendants And Appellees : , Vista Heights Investments, _ | 70220785-Ca Llc, A Utah Limited Liability Company : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

ON APPEAL FROM THE FOURTH JUDICIAL DISTRICT COURT FOR UTAH COUNTY, STATE OF UTAH Trial Court Case No. 210400480 Honorable Robert Lund

Spencer Macdonald, Attorney for Appellant

Barney Madsen, Steve Lundwall, James K. Tracy, Joshua Lee, Attorney for Appellees

C. Leon Nelson And Marilynn Tetrick, Defendants/Appellants, V. Karen Goldberg, Marc Goldberg, Thomas Goldberg Elaina Friedman, And Martin Krone, Plaintiffs/Appellees : Reply Brief, Utah Supreme Court

Utah Supreme Court Briefs (2021– )

Interlocutory Appeal from the Third Judicial District Court, Salt Lake County, Honorable Richard D. McKelvie

Cameron L. Sabin, Joshua Cutler, Counsel for appellees

Ryan B. Hancey, Adam L. Grundvig, J. Adam Knorr, Counsel for appellants

440 North Sf, Llc, Plaintiff And Appellant, V. Vista Heights Investments, Llc,, And Sii Megadiamond, Inc., Defendants And Appellees : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

ON APPEAL FROM THE FOURTH JUDICIAL DISTRICT COURT FOR UTAH COUNTY, STATE OF UTAH Trial Court Case No. 210400480 Honorable Robert Lund

Spencer Macdonald, Attorney for Appellant

Barney Madsen, Steve Lundwall, James K. Tracy, Joshua Lee, Attorney for Appellees

Civil Procedure And The New Bar Exam, Jeffrey A. Parness

University of Colorado Law Review Forum

No abstract provided.

Strengthening A One Health Approach To Emerging Zoonoses, Samira Mubareka, John Amuasi, Arinjay Banerjee, Hélène Carabin, Joe Copper Jack, Claire Jardine, Bogdan Jaroszewicz, Greg Keefe, Jonathon Kotwa, Susan Kutz, Deborah Mcgregor, Anne Mease, Lily Nicholson, Katarzyna Nowak, Brad Pickering, Maureen Reed, Johanne Saint-Charles, Katarzyna Simonienko, Trevor Smith, J. Scott Weese, E. Jane Parmley

Articles & Book Chapters

Given the enormous global impact of the COVID-19 pandemic, outbreaks of highly pathogenic avian influenza in Canada, and manifold other zoonotic pathogen activity, there is a pressing need for a deeper understanding of the human-animal-environment interface and the intersecting biological, ecological, and societal factors contributing to the emergence, spread, and impact of zoonotic diseases. We aim to apply a One Health approach to pressing issues related to emerging zoonoses, and propose a functional framework of interconnected but distinct groups of recommendations around strategy and governance, technical leadership (operations), equity, education and research for a One Health approach and Action Plan …

Why The Supreme Court Avoided Using Traditional Tools Of Statutory Interpretation In West Virginia V. Epa, Rachel Rothschild

Other Publications

Debates and scholarship over what the major questions doctrine is—and what it will meanfor administrative law—have proliferated since the Supreme Court’s decisions in AlabamaRealtors v. HHS , NFIB v. OSHA , and West Virginia v. EPA . The Association of American LawSchools (AALS) annual meeting last week was no exception, with multiple panels on themajor questions doctrine. These included the Federalist Society’s annual faculty debate ,moderated by my colleague Chris Walker. That conversation focused on whether the majorquestions doctrine is consistent with traditional tools of statutory interpretation and how thedoctrine relates to constitutional values like the separation of powers and …

Memorandum From The Office Of Legal Counsel On Presidential Succession, Department Of Justice. Office Of Legal Counsel.

Executive Branch Materials

Department of Justice Office of Legal Counsel Memorandum on presidential succession issued during the administration of President Dwight D. Eisenhower. Roy E. Brownell II secured this document from the papers of Attorney General Herbert Brownell at the Eisenhower Presidential Library.

Brief For Respondents, Twitter, Inc. V. Taamneh, 143 S.Ct. 1206 (2023) (No. 21.1496), Eric Schnapper, Keith L. Altman, Robert J. Tolchin

Court Briefs

No abstract provided.

Brief Of Legal Scholars As Amici Curiae In Support Of Petitioners, Pamela Foohey

Amicus Briefs

Amici curiae are professors at law schools throughout the United States. Amici’s expertise encompasses student-financial-assistance programs under Title IV of the Higher Education Act of 1965, consumer finance, administrative and constitutional law, modes of statutory interpretation, and the development of the major questions doctrine. Amici have a strong interest in assisting this Court in resolving questions of law that go to the core of their professional expertise and scholarship, namely, the scope of the Department of Education’s authority to provide relief to borrowers and the development of this Court’s statutory interpretation methodology, particularly in the context of its precedent …

Luck Of The Draw Iii: Using Ai To Examine Decision‐Making In Federal Court Stays Of Removal, Sean Rehaag

All Papers

This article examines decision‐making in Federal Court of Canada immigration law applications for stays of removal, focusing on how the rates at which stays are granted depend on which judge decides the case. The article deploys a form of computational natural language processing, using a large‐language model machine learning process (GPT‐3) to extract data from online Federal Court dockets. The article reviews patterns in outcomes in thousands of stay of removal applications identified through this process and reveals a wide range in stay grant rates across many judges. The article argues that the Federal Court should take measures to encourage …

Externalities,Scarcity And Abundance, Brett M. Frischmann, Giovanni B. Ramello

Faculty Publications

Introduction: Do externalities work and matter differently in a world of scarcity vs. a world of abundance? In this article, we critically examine the economic phenomena of externalities. The concept of externality, an important idea in economics and law, is useful in exploring the complex and dynamic relationships between resource supply and human flourishing within various sociotechnical systems.

Methods: First, we define the basic concept and explain why it is fundamental to economic analysis of complex social environments Second, we briefly survey the intellectual history of externalities with the goal of tying together a few different strands of economic theory …

On Pope Benedict, Science, Faith, And His Legacy, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

Is “Touch And Concern” Dead In Arkansas?: A Recent Case And Its Implications For Real Covenants, Bennett J. Waddell

Arkansas Law Review

Real covenants occupy a doctrinal abyss within property law. The subject perpetually frustrates first-year law students and legal scholars alike, as they confront concepts that appear esoteric and even anachronistic. Naturally, the criticism has been sharp, with commentators quipping that the field “is an unspeakable quagmire,” a “formidable wilderness,” and plainly “ridiculous.”

“Alexa, Am I A Murderer?”: An Analysis Of Whether The First Amendment Protects Smart Speaker Communications, Josie A. Bates

Arkansas Law Review

State v. Bates poses interesting First Amendment questions that go far beyond the case itself, such as whether communications to and from smart speakers are protected under the First Amendment and, if so, whether the government must therefore meet a heightened standard before obtaining information from these devices. But currently, there are no definite answers. Thus, this analysis will attempt to answer these questions as well as offer general guidance for the future of First and Fourth Amendment law in the age of ever-changing technological advancements and never-ending criminal accusations.

Mental Health, Law School, And Bar Admissions: Eliminating Stigma And Fostering A Healthier Profession, Natalie C. Fortner

Arkansas Law Review

Part II of this Comment explores the current state of mental health in the legal profession and the shortcomings of state bar associations, lawyer assistance programs “LAPs”), and courts applying the Americans with Disabilities Act (“ADA”) in combating the profession’s mental health problem. Part III then examines practical steps the profession can take at the law school level that will aid in eliminating the stigma associated with seeking mental health treatment in the legal profession, thus addressing the problem at its source.

Crying Wolves, Paper Tigers, And Busy Beavers—Oh My!: A New Approach To Pro Se Prisoner Litigation, Justin C. Van Orsdol

Arkansas Law Review

To say that the United States is infatuated with incarceration would be a gross understatement. As a result of “tough on-crime” laws, the United States has “the largest prison population in the world, with more than 2.3 million persons behind bars on any given day” and it “also has the world’s highest per capita rate of incarceration” with a rate that is “five to ten times higher than those of other industrialized democracies like England and Wales . . . . Canada . . . , and Sweden.” Due in part to prison population increases, the conditions of U.S. prisons …

Covid And Bar Admissions, Steven R. Smith

Arkansas Law Review

The COVID-19 pandemic, killings of George Floyd and others, and civil unrest created dislocation, hardship, and uncertainty. For millions of people, it included deaths in family, unemployment, and serious mental and physical illness. Graduates of professional schools preparing to take licensing examinations faced unexpected obstacles in meeting licensing standards for their chosen professions. It quickly became apparent, for example, that the usual licensing examination arrangements were problematic. The question for licensing authorities in 2020 was what accommodations would be appropriate to take account of the disruptions applicants faced while fully protecting the public’s interest in careful licensing.

Special Purpose Acquisition Companies: Wall Street’S Latest Shell Game, Daniel J. Morrissey

Arkansas Law Review

Special Purpose Acquisition Companies (“SPACs”) have been called “Wall Street’s biggest gold rush of recent years.” In reality, they are just another version of an old strategy to exploit a loophole in the federal securities laws that issuers of stock have used to avoid full registration with the SEC, the federal agency set up to administer and enforce the securities laws. The SPAC process circumvents that important protection for investors by taking private firms public through the back door—merging them into shell corporations. Those are companies whose shares are widely held but have no operations or assets.

How The Real Practice Systems Project Can Help Improve Mediation Quality, John M. Lande

Faculty Blogs

Improving mediation quality is tricky. This post describes how the Real Practice Systems Project can help.

Re-Examining The Landscape Of Employee Drug-Testing In Missouri Post-Amendment 3, Paige Hume

SLU Law Journal Online

In November 2022, Missouri residents voted to ratify Amendment 3 to the state constitution and make the recreational use of marijuana legal. Yet, Missouri is one of only a few states that does not have protections for private employment drug testing. In this article, Paige Hume discusses the landscape of employment drug testing in Missouri, as well as the impact of the new amendment on workers.