Law Commons^™

Book Review: Critical Race Judgments: Rewritten U.S. Court Opinions On Race And The Law, Julia M. Pluta

Faculty Works

No abstract provided.

Book Review: The Walled Garden: Law And Privacy In Modern Society, Ariel Newman

Faculty Works

No abstract provided.

Purposivist Reasoning In Federal Civil Procedure, Lumen N. Mulligan, Emily Pennington

Faculty Works

This invited Article both reviews the Tenth Circuit’s stance on the circuit split addressing repleading counterclaims in amended answers and observes broader interpretive-approach trends in Federal Rules of Civil Procedure cases. In Sinclair Wyoming Refining Co. v. A & B Builders, Ltd., the Tenth Circuit holds that, absent prejudice to the opposing party, the failure to replead a counterclaim in an amended answer does not constitute abandonment; thus, taking the so-called permissive side of a circuit split on this question. In so doing, the Tenth Circuit adopts a purposivist approach to interpretation of the Federal Rules of Civil Procedure. In …

Total Return Meltdown: The Case For Treating Total Return Swaps As Disguised Secured Transactions, Colin P. Marks

Faculty Works

Archegos Capital Management, at its height, had $35 billion in assets. But in the spring of 2021, in part through its use of total return swaps, Archegos sparked a $30 billion dollar sell-off that left many of the world's largest banks footing the bill. Mitsubishi UFJ Group estimated a loss of $300 million; UBS, Switzerland's biggest bank, lost $861 million; Morgan Stanley lost $911 million; Japan's Nomura lost $2.85 billion; but the biggest hit came to Credit Suisse Group AG which lost $5.5 billion. Archegos, itself lost $20 billion over two days. The unique characteristics of total return swaps and …

Reclaiming Tort Law To Protect Reproductive Rights, Yvonne F. Lindgren, Nancy Levit

Faculty Works

In Dobbs v. Jackson Women’s Health, the Supreme Court overruled Roe v. Wade, the constitutional floor that had protected the abortion right for nearly fifty years, and returned the issue of abortion to the states to regulate, restrict, criminalize, or protect at the state-level. In the post-Roe era, states are increasingly turning to private law to restrict travel, access to medical care, and undermine privacy of individuals seeking abortion. Three states have passed antiabortion civil enforcement “bounty” provisions patterned on Texas’s SB8 that allows private citizens to sue providers or third parties who aid and abet an abortion that violates …

Tenancy By The Entirety Property And Transfers To Trusts, Julie M. Cheslik

Faculty Works

Lawyers practicing in the area of matrimonial law encounter the structuring of property transactions as their clients contem­plate marriage, during the marriage, and upon dissolution of the marriage. At all three periods in the life of a marriage, whether for creditor asset protection purposes, estate planning purposes, or dissolution purposes, whether and how to deviate from the state's default property laws is of utmost concern for the matri­monial lawyer. Of special concern is how default laws intended to protect the spouses' marital estate from creditors - including the tenancy by the entirety estate - may be implicated or abro­gated by …

Self-Intervention, Lumen N. Mulligan

Faculty Works

You cannot intervene in your own case, duh! Yet the United States Supreme Court granted certiorari on just this issue: Does Federal Rule of Civil Procedure 24(a)(2) allow state legislative leaders, seeking to represent the state’s sovereign interest, intervene when the attorney general is already representing the state’s sovereign interest. In this article, I contend that the text, history, and practice of Rule 24(a)(2) prohibits such “self-intervention.” I then explore how the fictive approach to state immunity established in Ex parte Young causes this confusion, while concluding that the doctrine, properly understood, focuses on real, not nominal, parties-in-interest. Next, I …

Antibody Patents: Use Of The Written Description And Enablement Requirements At The Patent & Trademark Office, S. Sean Tu, Christopher M. Holman

Faculty Works

No abstract provided.

Constraining Corporate Law Principles In Affiliate World, Anita K. Krug

Emory Law Journal

No abstract provided.

A Child’S Constitutional Right To Family Integrity And Counsel In Dependency Proceedings, Rachel Kennedy

Emory Law Journal

Since the child welfare system’s inception, abuse and neglect laws have conflated poverty-related neglect with active parental violence and willful neglect. The ensuing state surveillance has disproportionately harmed poor children and children of color. Pursuant to the state’s expansive parens patriae authority, countless families are investigated, and thousands of children are separated from their caretakers each year—only to be returned within days or weeks after a finding that the reasons for removal were unsubstantiated. Other children risk drifting in foster care limbo until they experience the termination of parental rights—an adjudication so severe that some courts call it the “civil …

Section 1115 Waivers: Innovation Through Experimentation, Or Stagnation Through Routine?, Nicole Johnson

Emory Law Journal

The Medicaid program operates as a federal-state partnership, in which the states agree to meet certain federally mandated requirements in exchange for federal matching funds for program expenditures. These federal matching funds can be anywhere from 50–90% of health care expenses incurred through state Medicaid programs. As such, states have a substantial interest in continuing this partnership and ensuring that their state plans comply with federal requirements. There is a way, though, in which states can gain more freedom in building their individual state plans. Through section 1115 waivers, states can ask the Centers for Medicare and Medicaid Services (“CMS”) …

The Expected Risks And Exacerbations Of Poverty, Mental Health Disorders, And Maternal Mortality From Abortion Bans: A Comparative Literature Analysis, Daniel J. Francisco

All Master's Theses

Background. Early termination of a pregnancy (hereinafter referred to as an “abortion”) has been debated in the United States (U.S.) for decades, without much regard to the negative outcomes that forced pregnancies have for those assigned female at birth regarding poverty, mental health and maternal mortality. In 1973, access to safe abortions was protected so long that the procedure was done within the legal gestational period and/or was necessary for the health and safety of the patient (Blackmun, 1972). Unfortunately, in 2022, the Supreme Court took that protection away and made it legal for states to determine the reproductive rights …

Ukraine On My Mind: Cultural Heritage And The Current Armed Conflict, Irina Tarsis

Fordham Intellectual Property, Media and Entertainment Law Journal

The following keynote address was delivered on October 7, 2022, during the Fordham Law Intellectual Property, Media & Entertainment Law Journal Symposium, “Duplicate, Decolonize, Destroy: Current Topics in Art & Cultural Heritage.” It was prefaced by a YouTube video of “Ukrainian Folk Song ARMY REMIX | Andriy Khlyvnyuk x The Kiffness.” The upbeat remix of a folk song was performed as a collaboration between South African musical talent David Scott, known as the Kiffniss, and Andriy Khlyvnyuk, the lead singer of the Ukrainian band, Boombox (Бумбокс), who took leave from his concert tours to join the military forces of Ukraine …

Trademark Counterfeiting Enforcement Beyond Borders: The Complexities Of Enforcing Trademark Rights Extraterritorially In A Global Marketplace With Territorial-Based Enforcement, Kari Kammel, Matthew Azim-Kramer, Daniel Duquet, Lillie Patterson

Fordham Intellectual Property, Media and Entertainment Law Journal

We focus on the enforcement of trademark rights, particularly those used against counterfeiters, or those who use unauthorized trademarks of another. We examine the concept of extraterritorial enforcement of trademark rights—the extending of enforcement across national borders—and reviewing how different countries and jurisdictions view this concept or even allow it.

The By-Design Approach Revisited: Lessons From Covid-19 Contact Tracing Apps, Mickey Zar, Niva Elkin-Koren

Fordham Intellectual Property, Media and Entertainment Law Journal

This paper challenges the by-design regulatory approach by exploring the case study of Contact Tracing Apps. It aims to account for the gap between the hopes that were pinned on digital technologies and the rock of reality into which they have crashed. This gap, we argue, results from overestimating the regulatory power of technology and underestimating the co-influence of various regulatory pillars. To address this gap, it is necessary to adopt an ecosystem perspective on sociotechnical systems, where technological design is but one form of regulation. This perspective allows technological design to acquire a social meaning through interaction with other …

In The Thick(Et) Of It: Addressing Biologic Patent Thickets Using The Sham Exception To Noerr-Pennington, Anna Zhou

Fordham Intellectual Property, Media and Entertainment Law Journal

A biologic patent thicket occurs when a pharmaceutical company acquires a “dense web” of patents and other intellectual property rights regarding a specific product. While applying for multiple patents is permissible, the resulting protections can have antitrust implications. In an industry like biologics, where companies can acquire patent exclusivity and regulatory exclusivity over their products, the process of continuously accumulating these exclusivities seems to be an attempt to keep biosimilars at bay. Keeping competitors out of the market drives up prices and raises questions about how these regulatory and patent pathways are being used.

Recent class action litigation in the …

Global Digital Governance Through The Back Door Of Corporate Regulation, Orit Fischman-Afori

Fordham Intellectual Property, Media and Entertainment Law Journal

Today, societal life is increasingly conducted in the digital sphere, in which two core attributes are prominent: this sphere is entirely controlled by enormous technology companies, and these companies are increasingly deploying artificial intelligence (AI) technologies. This reality generates a severe threat to democratic principles and human rights. Therefore, regulating the conduct of the companies ruling the digital sphere is an urgent agenda item worldwide. Policymakers and legislatures around the world are taking their first steps in establishing a digital governance regime, with leading proposals in the EU. Although it is understood that it is necessary to adopt a comprehensive …

Solutions Still Searching For A Problem: A Call For Relevant Data To Support “Evergreening” Allegations, Erika Lietzan, Kristina Acri Née Lybecker

Fordham Intellectual Property, Media and Entertainment Law Journal

For years pharmaceutical policymaking discussions have been revolving around allegations of supposed “evergreening” by pharmaceutical companies, and policymakers have considered a range of significant policy reforms—including to antitrust law and drug regulatory law—to address this purported problem. This Article evaluates empirical data offered to substantiate “evergreening” and explains that these data—though mostly accurate—do not support proposed policy changes.

The “evergreening” claim is that by securing additional patents and FDA-related exclusivities after approval of their new drugs, brand drug companies enjoy a period of exclusivity in the market that is longer than the initial patent(s) and exclusivity on the drug would …

User-Generated Data Network Effects And Market Competition Dynamics, Uri Y. Hacohen

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article defines User-Generated Data (“UGD”) network effects, distinguishes them from the more familiar concept of traditional network effects, and explores their implications for market competition dynamics. It explains that UGD network effects produce various efficiencies for digital service providers (“data platforms”) by empowering their services’ optimization, personalization, and continuous diversification. In light of these efficiencies, competition dynamics in UGD-driven markets tend to be unstable and lead to the formation of dominant multi-industry conglomerates. These processes will enhance social welfare because they are natural and efficient. Conversely, countervailing UGD network effects also empower data platforms to detect and neutralize competitive …

Silly Gene Patent Is Not My Lover: A Retrospective Analysis Of Myriad, Stephanie Huang

Fordham Intellectual Property, Media and Entertainment Law Journal

The U.S. Supreme Court’s decision in Association for Molecular Pathology v. Myriad Genetics, Inc. established that an isolated fragment of a gene—the basic unit of heredity—is not patent-eligible subject matter while simultaneously holding that complementary DNA (cDNA) of a gene is patent-eligible subject matter. The decision has been controversial and criticized for including two holdings that are internally inconsistent from both scientific and patent law perspectives. But are the short- and long-term criticisms overstated? A decade after Myriad, the various impacts of the case remain relevant, particularly to the biotechnology and genetic testing fields.

First, this Note examines whether Myriad …

Policy Implications Of User-Generated Data Network Effects, Uri Y. Hacohen

Fordham Intellectual Property, Media and Entertainment Law Journal

User-generated data (UGD) network effects are an exciting and novel economic force. They upset conventional market competition dynamics, and they lead to the formation of dominant data platforms with market power that spans different and seemingly unrelated markets. This article explains that UGD network effects are a blessing and a curse. They provide dominant data platforms with the opportunity to generate welfare-enhancing efficiencies as well as welfare-reducing anticompetitive harms. After exploring the economic opportunities and social threats, this article explores the implications of UGD network effects on competition policy. Drawing on traditional network effects theory, this article proposes and critically …

From Drawstring To Drawback: A Proposal For The Donation Alternative Program To Promote Environmental Responsibility In Fashion Act, Elliot O. Jackson

Fordham Intellectual Property, Media and Entertainment Law Journal

Given the modern interest in resold, repurposed, upcycled, and thrifted goods, the fashion industry was forced to welcome new players into its global market. In turn, these players offer new meaning to the phrase: “one man’s trash is another man’s treasure,” especially in light of post-pandemic consumer relations. Pairing creativity and innovation with existing techniques has allowed many designers, ateliers, and skilled professionals across the world to transform old or mundane goods into vibrant apparel. A worthy example of this practice is Dapper Dan’s transformation of garment bags from a high-fashion brand into upcycled or repurposed, one-of-a-kind products. The origin …

Celebrating 70 Years, Case Western Reserve University School Of Law, Law-Medicine Center

Case Law-Med

• Message from the co-directors
• News flash
• Bringing in the experts
• Research roundup
• Faculty briefs
• Making health law history
• Uphill battle
• Above and beyond
• In the field
• Joining the team

Researching South African Government And Legal Information: Presentation For The 41st Annual Meeting Of The American Association Of Law Libraries, Sindiso Mnisiweeks, Yemisi Dina, Michelle Pearse, Marcelo Rodríguez

Librarian Publications & Presentations

No abstract provided.

Monuments Without Faces?, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

Monuments take many forms and can serve several purposes. Typically associated with honor and a need to commemorate significant events, monuments seem to represent the ideas of the communities which house them. However, it remains to be seen whether all monuments represent a “good” memory. In this essay, the author seeks to comment on the concept of collective memory, specifically in the context of the history and experiences of marginalized groups in the United States. The author argues that monuments are a tool of promoting a collective memory: monuments are not part of history but rather part of the creation …

Yesterday's Protester May Be Tomorrow's Saint: Reimagining The Tax System Through The Work Of Dorothy Day, Bridget J. Crawford, W. Edward Afield

Elisabeth Haub School of Law Faculty Publications

This Article offers a critical exploration of Day's views on the relationship between the tax system and Catholic social theory. Part I of this Article provides a biographical sketch of Dorothy Day and an overview of the Catholic Worker movement. Part II explores Day's views on taxation, pacifism, and social justice. It attempts to reconcile her belief in wealth redistribution with her nonpayment of federal income taxes and her failure to seek tax-exempt status for the Catholic Worker. Part III examines Day's tax resistance in the context of Catholic social teaching, particularly as that thought was developing during Day's lifetime …

Sharing Where Bargains Are Impossible, Saul Levmore, Andrew Verstein

Public Law and Legal Theory Working Papers

Cooperation sometimes breaks down, and former teammates will disagree about what happens next. For example, when can an employee quit to join a competitor? Courts often resolve disputes by looking at the parties actual or hypothetical bargain. Thus, a court may ask whether there was a non-competition agreement (and whether it was reasonable), or whether the employee is taking a “corporate opportunity” as she departs. These are all-or-nothing determinations by courts; either the bargain, or law, fully allows or fully prohibits the disputed conduct.

This is a suitable approach when fair and efficient bargains are possible. But, this article argues …

How Santa Clara Law's "Tech Edge Jd" Program Improves The School's Admissions Yield, Diversity, & Employment Outcomes, Laura Lee Norris, Eric Goldman

Marquette Intellectual Property & Innovation Law Review

No abstract provided.

Survey & Legal Analysis Of Select Global Trademark Anti-Counterfeiting Statutes & Evidence Of Prosecutions, Kari Kammel

Marquette Intellectual Property & Innovation Law Review

None

Grand Jury Information And Government Contractors: Reconciliation Through Privacy Law, Andrew Holzmann

Marquette Intellectual Property & Innovation Law Review

None