bluuebunny/crossref_metadata_2025 huggingface dataset:
When Nominal Is Reasonable: Damages for the Unpracticed Patent
Authors: Liivak Oskar
Published: July 2018

56 Boston College Law Review 1031 (2015)To obtain a substantial patent damage award a patentee need not commercialize the patented invention; the patentee need only show that its patent was infringed. This surely incentivizes patenting but it dis-incentivizes innovation. Why commercialize yourself? The law allows you to wait for others to take the risks, and then you emerge later to lay claim to “in no event less than a reasonable” fraction of other people’s successes. It is rational to be a patent troll rather than an innovator. This troll-enabling interpretation of patent law’s reasonable royalty provision, however, is wrong as a matter of patent policy. Surprisingly, it is also wrong as a matter of patent history. The courts created the basis for reasonable royalties in the nineteenth century, thereby marking a significant change to patent damages. But this precedent was nowhere near as sweeping as today’s interpretation would suggest. Up to the mid-1800s, the existing routes to patent damages were strict, available only to patentees who had already commercialized their patented invention. Budding innovators who were starting to commercialize but who could not yet prove an established royalty or lost profits were left out. Courts developed reasonable royalties for them. Those cases never extended reasonable royalties to those who simply sat on their patents waiting to extract payment from others. Starting in the 1970s, however, reasonable royalties came unmoored from that historical foundation. Infringement alone, without any evidence of commercialization, now creates a presumption of compensable harm. Today’s view of reasonable royalties is unsupported by patent history and sits in tension—if not outright conflict—with binding Supreme Court cases. Properly understood, some efforts to commercialize or some evidence of copying are still necessary for significant reasonable royalties. As a result, nominal damages are still reasonable to compensate for infringement of an unpracticed patent when asserted against independent inventors.
A Further Note on Federal Causes of Action
Authors: Preis John F.
Published: July 2018

In the article, I argue that federal causes of action ought to be treated as (1) distinct from substantive rights, (2) synonymous with the availability of a remedy (but not whether a remedy will in fact issue) and (3) distinct from subject matter jurisdiction (unless Congress instructs otherwise). This thesis is built principally on a historical recounting of the cause of action from eighteenth century England to twenty-first century America. In taking an historical approach, I did not mean to argue that federal courts are bound to adhere to centuries-old conceptions of the cause of action. I merely used history to show why the cause of action has taken on various identities and, further, why these identities have changed over time. By closely attending to these changes, we can better determine whether linguistic changes signal substantive changes in doctrine, or are simply loose language.
Teaching the Benefits and Limits of Human Classification and Machine Algorithms: Theory and Practice
Authors: Nevelow Mart Susan
Published: July 2018

Chapter in:The Boulder Statement on Legal Research Education: The Intersection of the Intellectual and the PracticalPosted with permission from William S. Hein Publishing, Inc.
Anarchy, Status Updates, and Utopia
Authors: Grimmelmann James
Published: July 2018

Social software has a power problem.1 Actually, it has two. The first is technical. Unlike the rule of law, the rule of software is simple and brutal: whoever controls the software makes the rules. And if power corrupts, then automatic power corrupts automatically. Facebook can drop you down the memory hole; Pay-Pal can garnish your pay. These sovereigns of software have absolute and dictatorial control over their domains. Is it possible to create online spaces without technical power? It is not, because of social software’s second power problem. Behind technical power, there is also social power. When-ever people come together through software, they must agree which software they will use. That agreement vests technical power in whoever controls the software. Social software cannot be completely free of coercion—not without ceasing to be social, or ceasing to be software. Rule-of-law values are worth defending in the age of soft-ware empires, but they cannot be fully embedded in software it-self. Any technical design can always be changed through an exercise of social power. Software can help by making this coercion more obvious, or by requiring more people to join together in it, but software alone cannot fully protect users. Whatever limits make social software humane, free, and fair will have to come from somewhere else—they will have to come from We the Users.Published: 35 Pace Law Review 135 (2105)
Bubbles, Busts, and Blame
Authors: Hockett Robert C.
Published: July 2018

37 Cornell Law Forum 14 (2011)I argue that financial asset price bubbles and busts, such as those we have recently experienced in the mortgage and securities markets, are compatible with market efficiency, individual rationality, and even ethically unobjectionable behavior. The reason is that they constitute classic recursively self-amplifying collective action problems, the hallmark of which is the efficient aggregation of individually rational behaviors into collectively calamitous outcomes. In the present case, individuals rationally "legged the spread" between cheap borrowing costs and credit-fueled capital gains rates, neither of which market actors could affect in their individual capacities even when knowing that credit would have eventually to run out at some indefinite point in future. The upshot was a continuous series of self-reinforcing credit-fueled asset price rises, followed by a symmetrical series of hoarding-induced asset price drops once credit was exhausted. It is important to emphasize the rationality- and efficiency-compatability side of this story because prescribing a proper cure to our ills presupposes a proper diagnosis. The solution to a collective action problem, of course, is a collective agent. In the present context, that is a macroprudential financial regulator cognizant of her requisite role in tightening credit-money supplies when positive feedback loops emerge in asset markets.
Streamlining Justice: How Online Courts Can Resolve the Challenges of Pro Se Litigation
Authors: Sela Ayelet
Published: July 2018

Cornell Journal of Law and Public Policy: Vol. 26 : Iss. 2 , Article 3. The tide of pro se litigation in the American justice system imposes significant constraints on self-represented litigants’ (SRLs) access to justice and courts’ ability to administer justice. Mitigating the challenges requires a systemic institutional and procedural reform. Advancing this approach, the Article proposes that online courts would alleviate many of the challenges associated with pro se litigation, and puts this proposition to an empirical test. To that end, the Article analyzes the challenges experienced by SRLs and courts and models the procedural and technological properties that would promote SRLs’ “day in court” as well as courts’ provision of fair and efficient access to justice. Based on the analysis and on a review of successful implementations of judicial online dispute resolution (JODR) systems, the Article proposes a detailed policy design framework for a JODR system for pro se litigation. Finally, the Article reports and discusses the results of an experiment evaluating the effect of the proposed framework on SRLs’ procedural justice experiences.
A Primer on Digital Object Identifiers for Law Librarians
Authors: Keele Benjamin John
Published: July 2018

Keele, B. J. (2010). A primer on digital object identifiers for law librarians. Trends in Law Library Management and Technology, 20, 35-40.
Patent Conflicts
Authors: Narechania Tejas N.
Published: July 2018

Patent policy is typically thought to be the product of the Patent and Trademark Office, the Court of Appeals for the Federal Circuit, and, in some instances, the Supreme Court. This simple topography, however, understates the extent to which outsiders can shape the patent regime. Indeed, a variety of administrative actors influence patent policy through the exercise of their regulatory authority and administrative power. This Article offers a novel description of the ways in which nonpatent agencies intervene into patent policy. In particular, it examines agency responses to conflicts between patent and other regulatory aims, uncovering a relative preference for complacency (“inaction”) and resort to outside help (“indirect action”) over regulation (“direct action”). This dynamic has the striking effect of shifting authority from nonpatent agencies to patent policymakers, thereby supplanting some regulatory designs with the patent regime’s more general incentives. This Article thus offers agencies new options for facing patent conflict, including an oft-overlooked theory of regulatory authority for patent-related regulation. Such intervention and regulation by nonpatent agencies can give rise to a more efficient and context-sensitive regime that is better aligned with other regulatory goals.
Press Clause and 3D Printing
Authors: Tran Jasper L.
Published: July 2018

Northwestern Journal of Technology and Intellectual Property, Vol. 14, p. 75, 2016
The Lawyer as Legal Scholar
Authors: Madison Michael J
Published: July 2018

I review Eugene Volokh's recent book, Academic Legal Writing. The book is nominally directed to law students and those who teach them (and for those audiences, it is outstanding), but it also contains a number of valuable lessons for published scholars. The book is more than a writing manual, however. I argue that Professor Volokh suggests implicitly that scholarship is underappreciated as a dimension of the legal profession. A well-trained lawyer, in other words, should have experience as a scholar. The argument sheds new light on ongoing discussions about the character of law schools.
Instrumentalizing the Expressive: Transplanting Sentencing Circles into the Canadian Criminal Trial
Authors: Goldbach Toby S.
Published: July 2018

25 Transnational Law & Contemporary Problems (2015)This Article examines reforms to criminal sentencing procedures in Canada, focusing on Aboriginal healing circles, which were incorporated as "sentencing circles" into the criminal trial. Using the lens of comparative law and legal transplants, this Article recounts the period of sentencing reform in Canada in the 1990s, when scholars, practitioners, and activists inquired into Aboriginal confrontation with the criminal justice system by comparing Euro-Canadian and Aboriginal justice values and principles. As a way to bridge the gap between vastly differing worldviews and approaches to justice, judges and Aboriginal justice advocates transplanted sentencing circles into the sentencing phase of the criminal trial. This Article presents original data compiled from a review of all published decisions in Canada that mention the term sentencing circle. It reviews judicial treatment of requests for sentencing circles, and tracks sentencing decisions once a circle was held. Additionally, this Article uses sentencing circles as a point of entry into conversations about legal instrumentalism in law reform and legal transplants. It argues that the progress of these reforms points to larger questions about culture and what it currently means to use law as a tool for social change.
LITERATURE REVIEW: RECENT SCHOLARSHIP FOCUSED ON TECHNOLOGY STANDARDS
Authors: Biddle C. Bradford
Published: July 2018

This is a rudimentary literature review aimed at documenting scholarly worksfocused on legal aspects of information and communication technology (ICT) standards. It wasproduced primarily via searches of SSRN and Lexis, and includes only material produced after 2005.The abstracts for each article are those provided to SSRN or Lexis by the article author, except in a fewcases where there was no abstract I selected a paragraph from the article to serve as a summary. Iorganized the articles into the categories below, recognizing that the distinctions are arbitrary orpotentially unhelpful in some cases (e.g., many “antitrust” articles also address “patent” issues, and the“public policy” and “regulation” categories cover similar ground). The categories do enable drawingone conclusion: while standards-related patent and antitrust issues have received a good deal ofattention, the other areas identified below remain under-explored. Within each category the articles arelisted in essentially random order.
Voluntariness with a Vengeance: The Coerciveness of Police Lies in Interrogations
Authors: Hritz Amelia C.
Published: July 2018

102 Cornell L. Rev. 487 (2017)Police often find themselves navigating difficult moral situations. They may find it necessary to tell lies despite moral reservations because lies can be a useful tool in controlling situations and avoiding the use of force. Police may also justify lies when they lead to a desirable outcome. When police use lies to obtain evidence, police may justify the harm caused by lies as outweighed by the good from catching wrongdoers.
How Librarians Can Help Improve Law Journal Publishing
Authors: Keele Benjamin John , Pearse Michelle
Published: July 2018

Librarians are well positioned to improve law journal publishing and help it evolve in the ever-changing digital environment. They can provide student editors with advice on a variety of issues such as copyright, data preservation, and version control. Librarians can also help journals adopt technical standards and improve the discoverability and usability of journal content. While few libraries will be able to adopt all these suggestions, a checklist of ideas is provided to help librarians select those that are most suitable to their libraries and journals.
Philosophical Legal Ethics: An Affectionate History
Authors: Luban David , Wendel W. Bradley
Published: July 2018

30 Georgetown Journal of Legal Ethics 337 (2017)The modern subject of theoretical legal ethics began in the 1970s. This brief history distinguishes two waves of theoretical writing on legal ethics. The “First Wave” connects the subject to moral philosophy and focuses on conflicts between ordinary morality and lawyers’ role morality, while the “Second Wave” focuses instead on the role legal representation plays in maintaining and fostering a pluralist democracy. We trace the emergence of the First Wave to the larger social movements of the 1960s and 1970s; in the conclusion, we speculate about possible directions for a Third Wave of theoretical legal ethics, based in behavioral ethics, virtue ethics, or fiduciary theory.
Called to Write: The AALL/LexisNexis Call for Papers Award Has Been Motivating Law Librarians for Nearly 30 Years
Authors: Keele Benjamin John , Sampson Sara
Published: July 2018

Keele, B. J., and Sampson, S. (2014). Called to write: The AALL/LexisNexis Call for Papers award has been motivating law librarians for nearly 30 years. AALL Spectrum, 18(6), 20-21.
The (Uncertain) Impact of Brexit on the United Kingdom's Membership in the European Economic Area
Authors: Schroeter Ulrich G. , Nemeczek Heinrich
Published: July 2018

Until recently, the on-going legal discussions about ‘Brexit’, the United Kingdom’s upcoming withdrawal from the European Union (EU), have predominantly focused on the requirements and consequences of the withdrawal procedure set out in Article 50 of the Treaty on European Union (TEU). A hitherto neglected, though arguably no less important question concerns the effect, if any, that a withdrawal from the EU will have on the UK’s membership in the European Economic Area (EEA): Given that the EEA extends many aspects of EU membership beyond the EU’s borders, resulting in a Common Market ‘light’, a future UK membership in the EEA could – at least from a European business law point of view – effectively result in ‘business as usual’, as a signiﬁcant share of EU law would continue to apply to UK companies, albeit in form of EEA law.Against this background, it is interesting to note that legal analyses of Brexit generally assume that the UK’s EEA membership will be terminated ipso iure, should the UK decide to withdraw from the EU. According to this view, the UK subsequently could (re-)apply for EEA membership should its government so choose, with such an application having to be accepted by all remaining EEA Contracting Parties – an option commonly referred to as the ‘Norway option’ in reference to Norway’s status within the EEA. The present article challenges the underlying (and often merely implicit) assumption that the UK’s withdrawal from the EU will automatically result in its withdrawal from the EEA, given that the EEA Agreement is a separate international treaty subject to separate legal rules governing withdrawals and effects of possible changes in EU membership. It argues that a withdrawal from the EU will in fact not affect the UK’s continuing EEA membership, as long as the UK does not voluntarily choose to also withdraw from the EEA. It then analyses the post-Brexit situation under the EEA Agreement by addressing its practical application to a number of different areas, as inter alia the free movement of UK companies within the EEA, the future of the ‘European passport’ for UK credit institutions and investment ﬁrms, as well as the free (but possibly restrictable) movement of workers in the EEA.
Divorce Equality
Authors: Tait Allison Anna
Published: July 2018

The battle for marriage equality has been spectacularly successful, producing great optimism about the transformation of marriage. The struggle to revolutionize the institution of marriage is, however, far from over. Next is the battle for divorce equality. With the initial wave of same-sex divorces starting to appear on court dockets, this Article addresses the distinctive property division problems that have begun to arise with same-sex divorce and that threaten, in the absence of rule reform, to both amplify and reinscribe problems with the conventional marital framework. Courts have failed to realize the cornerstone concept of equitable distribution-marriage as an economic partnership-in the context of different-sex marriage. Because same-sex divorce highlights this failing, this Article uses same-sex divorce as a lens through which to reexamine the untapped potential of equitable distribution statutes.
The Role of History in Constitutional Interpretation: A Case Study
Authors: Simson Gary J.
Published: July 2018

70 Cornell Law Review 253 (1985)
Law Libraries as Publishers: Distinguishing Versions
Authors: Keele Benjamin John
Published: July 2018

Benjamin J. Keele, Law Libraries as Publishers: Distinguishing Versions, ALL-SIS Newsletter, 36(1), at 3-4 (2016)
Blatt v. Cabela's Retail, Inc. and a New Path for Transgender Rights
Authors: Barry Kevin M. , Levi Jennifer L.
Published: July 2018

Published: Kevin Barry & Jennifer Levi, Blatt v. Cabela's Retail, Inc. and a New Path for Transgender Rights, 127 YALE L.J. F. 373 (2017).Since the Supreme Court recognized marriage equality in Obergefell v. Hodges, civil rights advocates have increasingly set their sights on transgender rights as the next legal frontier. Sex discrimination law, though an essential statutory tool, is not the only potential avenue for securing rights for transgender individuals. Another important federal source of protection for transgender people is disability rights law—in particular, the Americans with Disabilities Act (ADA). Disability rights law, unlike sex discrimination law, applies to public accommodations and government services, and also mandates reasonable accommodations. A transgender litigant successfully invoked the protections of the ADA for the first time in the recent case of Blatt v. Cabela’s Retail, Inc., where a federal court ruled that transgender people are not categorically barred from seeking relief under the ADA from discrimination based on gender dysphoria—the clinically significant distress that some transgender people experience. Importantly, the Department of Justice under both the Obama and Trump Administrations has similarly interpreted the ADA to cover such discrimination. This Essay explores why, for over twenty-five years, transgender litigants have not invoked the protections of the ADA—and why they now should. Blatt’s historic holding will reverberate beyond the facts of that case, setting the stage for ADA challenges to a broad range of discrimination against transgender people who experience stigma and bias associated with gender dysphoria.
Territoriality, Technology, and National Security
Authors: Clopton Zachary D.
Published: July 2018

83 University of Chicago Law Review 45 (2016)Across various contexts, parties and courts have pressed for territorial rules in cases implicating technology and national security. This Essay suggests that presumptively territorial approaches to these questions are misguided. Territorial rules do not track the division of authority or capacity among the branches, nor are they effective proxies for the important interests of regulators or regulatees. On issues of technology and national security, territorial rules seem particularly ill suited: territorial rules aspire to certainty, but technology makes it harder to define “territoriality” in a consistent and predictable way; technology weakens territoriality as a proxy for policy goals because data often move in ways disconnected with the interests of users and lawmakers; and technology makes it easier for public or private actors to circumvent territorial rules (often without detection), thus interfering with the existing allocation of policymaking authority. This Essay explores these themes with respect to the Stored Communications Act, electronic surveillance law, and court-access doctrines in criminal and civil litigation. The conclusion is that territorial approaches in such cases may have been wrong when first adopted or may have succumbed to desuetude in the intervening years.
The Market for Leadership in Corporate Litigation
Authors: Erickson Jessica M.
Published: July 2018

Conventional wisdom has long held that leadership decisions in corporate litigation are best left to the lawyers. Even as the world of corporate litigation has changed dramatically, courts have consistently relied on the lawyers themselves to decide who among them will control litigation decisions. As a result, leadership decisions in corporate litigation are almost always made in private negotiations and back room deals. This Article pulls back the curtain on these decisions, using empirical data to conduct the first in-depth examination into the market for leadership in corporate litigation. This examination reveals a market that bears little resemblance to the ideal imagined by courts and commentators. The reliance on private ordering forces lawyers to agree to overly complicated leadership structures. These structures in turn cause lawyers to underinvest in litigation, encouraging holdouts and opportunism at the negotiating table. It need not be this way. Other types of complex litigation,from small-scale consumer class actions to multidistrict securities class actions, have successfully avoided such problems. The time has come for corporate law to draw on these insights and develop a new market for leader- ship in corporate litigation. In the end, leadership is far too important to be left to the lawyers.
How Should the Law Treat Couples Who Live Apart Together?
Authors: Bowman Cynthia Grant
Published: July 2018

Published in: 29 Child & Family Law Quarterly 335 Committed couples who do not share a residence, commonly called ‘LATs’ (for Living Apart Together), have been little studied by family law scholars in the United States. After describing the literature on this phenomenon by British, European, Canadian, and Australian scholars, this article provides new data about LATs in the US. It presents the results of two new surveys, one of respondents in New York State and one US-wide study, along with information gleaned from qualitative interviews of LATs. These data show that LATs are as prevalent in the US as elsewhere and provide information about their lifestyle, their reasons for living apart, their economic relationships, and the family-like functions LATs undertake for each another. The article then discusses whether the US legal system should recognize LAT relationships and, if so, for what purposes, concluding that certain legal rights should be extended to LATs, limiting them in most instances to those designed to aid their mutual caretaking, not those premised on economic interdependence.
Antibiotic Resistance
Authors: Litman Jessica
Published: July 2018

In this essay, written for the 30th Anniversary of Cardozo’s Arts and Entertainment Law Journal, I revisit the ruinous litigation strategy copyright owners pursued after Napster to secure control of the market for personal uses of copyrighted works, which I wrote about ten years ago in War Stories, 20 Cardozo Arts & Ent. L.J. 337 (2002). The litigation campaign had effects that copyright owners now have reason to regret. Medical experts tell us that powerful antibiotics are highly effective in killing off both good and bad bacteria, but at a significant risk. Bugs that survive the treatment grow bigger, stronger, and resistant to antibiotics. They become much more dangerous because they are harder to kill. Copyright owners’ indiscriminate litigation against new entrants into the entertainment and information marketplace killed off a broad swath of potential competitors and partners. The ones who were left faced a less crowded field because old media had helpfully cleared it for them. The scorched-earth litigation strategy temporarily cleared the field, and made room both for tepid, content-industry-controlled efforts to distribute music, books, and video online, and for new entrants with the stamina and resources to survive copyright infringement suits. Apple, Amazon, and Google took advantage of that environment to grow into dominant distributors who are obligatory partners for any serious online content distribution plan, and who insist on calling the shots on price, format, and other matters that content owners believe should rightfully be under their own control.
MISPLACED PRIORITIES: THE UTAH DIGITAL SIGNATURE ACT AND LIABILITY ALLOCATION IN A PUBLIC KEY INFRASTRUCTURE
Authors: Biddle C. Bradford
Published: July 2018

On March 9, 1995, the Utah Digital Signature Act (the “Utah Act”) was signed into law.1 Complex and ambitious, the Utah Act is intended to promote the use of digital signatures on computer-based documents and to facilitate electronic commerce.2 The Utah Act implements an infrastructure in which computer users utilize “certification authorities,” online databases called repositories, and public-key encryption technology in order to “sign” electronic documents in a legally binding fashion. In addition to setting out a regulatory scheme designed to implement this infrastructure, the Utah Act provides certain digital signatures with legal status as valid signatures and addresses a variety of issues relating to the status of digitally-signed electronic documents in contract and evidence law.
Copyright Provisions in Law Journal Publication Agreements
Authors: Keele Benjamin John
Published: July 2018

Mr. Keele examined copyright provisions of law journal publication agreements and found that a minority of journals ask authors to transfer copyright. Most journals also permit authors to self-archive articles. He recommends journals make their agreements publicly available and use licenses instead of copyright transfers.
Let's Keep It Civil: An Evaluation of Civil Disabilities, a Call for Reform, and Recommendations to Reduce Recidivism
Authors: Pinedo Victor J.
Published: July 2018

102 Cornell Law Review 547 (2017)Imagine the following scenario: You have just been released from prison after serving a two-year sentence for sale of a controlled substance. Upon release, you search for housing in your community but learn that your conviction disqualifies you from public housing. You look for a job, but given the restrictions and required disclosures, your search constantly leads to dead ends. You decide to pursue a college education, but learn that you only qualify for a limited amount of federal aid and cannot receive Federal Pell Grants—loans that do not require repayment. Fed up with your situation, you turn to the ballot box but learn that you have lost your right to vote. Facing these bleak circumstances, you turn back to selling drugs and are re-arrested. This cycle is one that far too many in this country face each year.
Forty Years of Death: The Past, Present, and Future of the Death Penalty in South Carolina (Still Arbitrary after All These Years)
Authors: Blume John H. , Vann Lyndsey S.
Published: July 2018

11 Duke Journal of Constitutional Law & Public Policy 183 (2016)Forty years ago, the Supreme Court of the United States deemed constitutional new death penalty laws intended to minimize the arbitrariness which led the Court to invalidate all capital sentencing statutes four years earlier in Furman v. Georgia. Over the last four decades the Court has — time and again — attempted to regulate the “machinery of death.” Looking back over the Court’s work, many observers, including two current Supreme Court justices, have questioned whether the modern death penalty has lived up to expectations set by the Court in the 1970s or if, despite 40 years of labor, the American death penalty continues to be administered in an unconstitutionally arbitrary manner. This Article presents data from South Carolina’s forty-year experiment with capital punishment and concludes that the administration of the death penalty in that state is still riddled with error and infected with racial and gender bias. It is — in short — still arbitrary after all these years. The authors maintain that the only true cure it to abolish South Carolina’s death penalty, although they do argue that lesser steps including additional safeguards and procedure may limit, but will not eliminate, some of the arbitrariness and bias which are present in the current imposition of South Carolina’s most extreme punishment.
Hichilema and Another v Lungu and Another (2016/CC/0031) [2016] ZMCC 4 (5 September 2016), Majority Judgment
Authors: Ndulo Muna
Published: July 2018

SAIPAR Case Review: Vol. 1 : Iss. 1 , Article 6.
Academic Freedom and Critical Speech in Hong Kong: China's Response to Occupy Central and the Future of 'One Country, Two Systems'
Authors: Petersen Carole J. , Cheung Alvin Y.H.
Published: July 2018

Since July 1997, when Hong Kong was reunited with the People’s Republic of China, academics in the Special Administrative Region of Hong Kong have fiercely protected their right to engage in critical speech and practice academic freedom. They have been aided by Hong Kong’s regional constitution (known as the “Basic Law”), which incorporates international human rights treaties into domestic law and contains unusually detailed protections for freedom of expression, academic freedom, and educational autonomy. These constitutional provisions originated in the Sino- British Joint Declaration, a bilateral treaty that was duly registered with the United Nations. Nonetheless, this article documents a dramatic decline in academic freedom in Hong Kong since the last comprehensive study of the topic was published in 2006. This is partly because the Chinese Communist Party has made a concerted effort to punish Hong Kong academics and student organizations for their role in the Umbrella Movement and other pro-democracy movements. Equally important, there have been significant changes to the governance structure in Hong Kong’s universities over the past decade, creating overly-centralized universities that are far too vulnerable to outside interference. These developments have already damaged the quality and international reputation of Hong Kong’s universities, which will ultimately hurt not only Hong Kong but also the People’s Republic of China.
Eclecticism
Authors: Tebbe Nelson
Published: July 2018

25 Constitutional Commentary 317 (2008)This short piece comments on Kent Greenawalt's new book, Religion and the Constitution: Establishment and Fairness. It argues that although Greenawalt's eclectic approach carries certain obvious costs, his theory cannot be evaluated without comparing its advantages and disadvantages to those of its competitors. It concludes by giving some sense of what that comparative calculus might look like.
Timing Matters: Prior Art’s Age Infers Patent Nonobviousness
Authors: Tran Jasper L.
Published: July 2018

Gonzaga Law Review, Vol. 50, p. 189, 2014-15
Virtual Worlds as Comparative Law
Authors: Grimmelmann James
Published: July 2018

49 New York Law School Law Review 147 (2004)
Filling the Google Gaps: Harnessing the Power of Google through Instruction
Authors: Mattson Rebecca
Published: July 2018

This article discusses teaching proper use of Google and Google Scholar in the legal research classroom.
Correcting the record: Australian prosecutions for manslaughter in the medical context
Authors: Carter David J
Published: July 2018

The failure to prosecute Dr Jayant Patel successfully for any of the deaths associated with his time as Director of Surgery at Bundaberg Base Hospital was received in some quarters as an abject failure of the criminal law to deal adequately with significant wrongdoing. The case itself, the multiple public inquiries and the significant expense to pursue, extradite and prosecute Patel, resulting finally in a finding of guilt on a number of minor fraud charges, seems to compound this sense of failure. This article argues otherwise. When placed within the far longer and forgotten history of the prosecution of manslaughter by criminal negligence in the Australian jurisdiction, this story of prosecutorial failure becomes instead wholly consistent with the case law over time. No adequate account of the history of prosecution in the Australian jurisdiction exists for this area of law. To present Patel in context, the article draws upon archival research to provide a significantly extended account of the history of prosecution for manslaughter in the health care context. The extension of the case law is significant, from four known prosecutions, case histories of another 33 inadequately acknowledged prosecutions are presented.
Ganging Up Against the Courts: Congressional Curtailment of Judicial Review, 1988-2004
Authors: Keele Benjamin John
Published: July 2018

Keele, B. J. (2007). Ganging up against the courts: Congressional curtailment of judicial review, 1988-2004. Pi Sigma Alpha Undergraduate Journal of Politics, 7(2), 174-196.The Constitution grants Congress the power to regulate the jurisdiction of the federal courts. Congress has sought to exercise this power throughout its history, especially when the courts have issued a decision or series of decisions that are very unpopular. The precise nature of Congress' authority in this area is controversial and scholars have proposed many criteria and theories to delineate the legislative and judicial branches' respective powers. This study, examining the number of times Congress has categorically denied the courts' jurisdiction over a defined set of cases between 1988 and 2004, finds that Congress has denied jurisdiction 166 times. This practice, while currently relatively narrow, could have major implications for the balance of powers between the three branches of the federal government and the vindication of individual rights if allowed to become more prevalent.
Keeping the Sex in Sex Education: The First Amendment's Religion Clauses and the Sex Education Debate
Authors: Simson Gary J. , Sussman Erika A.
Published: July 2018

9 Southern California Review of Law and Women's Studies 265 (Spring 2000)
Electing Justice Roush to the Supreme Court of Virginia
Authors: Tobias Carl W.
Published: July 2018

In late April 2015, the Supreme Court of Virginia announced that Justice LeRoy F. Millette, Jr. would retire on July 31, 2015. Democratic Governor Terry McAuliffe expeditiously created an open process for tapping a worthy successor. At July’s conclusion, the Governor appointed Fairfax County Circuit Judge Jane Marum Roush, an experienced, consensus jurist. On a Sunday night, merely two days after Roush swore her oath of office, Republican General Assembly leaders proclaimed their caucuses’ intention to elect another individual, despite conceding that Roush was very qualified. During the August special session, this concerted GOP endeavor prompted a Republican senator to join Democrats who opposed the prospect and concomitantly adjourned. GOP leaders then contended that legislators remained in session, as the Virginia Constitution explicitly prescribes Senate and House of Delegates consent to adjourn. The Governor’s Counsel next penned an opinion that concluded that lawmakers had adjourned, so McAuliffe could appoint Justice Roush to the Court again, a choice that he implemented thirty days after adjournment. Because these efforts precipitated a constitutional standoff and will consequently plague future judicial selection, they warrant analysis. The initial part of this Article chronicles the rise and evolution of Virginia court selection. Part Two scrutinizes recent machinations, determining that the procedures now merit improvement. The last section proffers suggestions. For the near term, the Assembly ought to promptly elect Roush. She brings twenty-two years of judicial service, including over five months as a justice. Moreover, Roush’s removal for reasons unrelated to her abilities, earlier performance, or future capacity to serve would make a mockery of the selection regime, undermining citizen respect for it, the whole state judiciary, as well as the Governor and the Assembly. Across the longer term, the Commonwealth must evaluate and initiate changes that will enhance selection.
Law as Design: Objects, Concepts, and Digital Things
Authors: Madison Michael J
Published: July 2018

This Article initiates an account of things in the law, including both conceptual things and material things. Human relationships matter to the design of law. Yet things matter too. To an increasing extent, and particularly via the advent of digital technology, those relationships are not only considered ex post by the law but are designed into things, ex ante, by their producers. This development has a number of important dimensions. Some are familiar, such as the reification of conceptual things as material things, so that computer software is treated as a good. Others are new, such as the characterization of material things as conceptual things, so that digital goods become licensable. The regulatory consequences of the thing are increasingly built into the construction of the thing. These developments appear to be poised to envelop things beyond the digital sphere. It may no longer be apt to divide the world cleanly into conceptual and material objects. Things combine features of both. As a result, they can no longer be viewed solely as passive backgrounds against which relation-based legal analysis unfolds. To ensure that society maintains the ability to regulate as broadly as it deems legitimate, law must account for the creation and design of the things that increasingly dominate developments across a variety of legal domains, from intellectual property law to antitrust law to commercial law. The Article describes how things exercise the authority that characterizes classic legal regulation, and it reviews the different mechanisms that legal institutions have used to recognize and differentiate things. Understanding those mechanisms is a step toward appreciating the nature of the regulatory landscape in which both legal institutions and individuals exist.
Strict Liability and 3D-Printed Medical Devices
Authors: Tran Jasper L. , Lindenfeld Eric
Published: July 2018

Yale Journal of Law and Technology, 2015
Future Conduct and the Limits of Class-Action Settlements
Authors: Grimmelmann James
Published: July 2018

91 North Carolina Law Review 387 (2013)This Article identifies a new and previously unrecognized trend in class-action settlements: releases for the defendant’s future conduct. Such releases, which hold the defendant harmless for wrongs it will commit in the future, are unusually dangerous to class members and to the public. Even more than the “future claims” familiar to class-action scholars, future-conduct releases pose severe informational problems for class members and for courts. Worse, they create moral hazard for the defendant, give it concentrated power, and thrust courts into a prospective planning role they are ill-equipped to handle.Courts should guard against the dangers of future-conduct releases with a standard and a rule. The standard is heightened scrutiny for all settlements containing such releases; the Article describes the warning signs courts must be alert to and the safeguards courts should insist on. The rule is parity of preclusion: a class-action settlement may release future-conduct claims if and only if they could have been lost in litigation. Parity of preclusion elegantly harmonizes a wide range of case law while directly addressing the normative problems with future- conduct releases. The Article concludes by applying its recommendations to seven actual future-conduct settlements, in each case yielding a better result or clearer explanation than the court was able to provide.
Reasons and Religion
Authors: Tebbe Nelson
Published: July 2018

The Journal of the American Academy of Religion has solicited eight thoughtful reviews of my book, Religious Freedom in an Egalitarian Age. This is my reply, which will appear together alongside the reviews and an introduction by the editor. In the reply, I isolate two themes that run through the reviews: curiosity about the role of reasons in conflicts between religious freedom and equality law, and concern about the concept of religion that the book tacitly employs. I first clarify that the book's methodological argument is just that reasons can be given to support outcomes in this field, contrary to the contentions of certain skeptics. Nothing about the book's method is meant to eliminate conflict. On the contrary, reasonable disagreement is a fixed feature of any democratic society. Second, I embrace the observations of critical theorists of religion, and I explain why they enrich rather than undermine the main arguments of the book. Finally, I observe that these two themes interact in interesting ways. By creatively deploying the coherence method I propose, critical theorists of religion can promote new possibilities for free and equal citizenship. At least one of the reviews demonstrates that possibility.
Corruption, Corporations, and the New Human Right
Authors: Spalding Andrew B.
Published: July 2018

We should no longer expect the Alien Tort Statute to be the principal federal statute that deters overseas corporate rights violations. That distinction rightly belongs to the Foreign Corrupt Practices Act, an antibribery statute that rests on undisputed principles of corporate liability, contains a clear congressional statement of extraterritorial application, and routinely collects penalties from multinational corporate defendants. Scholars have not associated the FCPA with human rights, owing principally to a thin understanding of rights theory. But freedom from corruption can and should be understood as a human right, one that is as old as social contract theory but new to federal and international law. With specific reforms—one modeled after environmental law and the other after intellectual property—the FCPA can become a more powerful statutory tool for deterring overseas corporate rights violations than the ATS ever was or will be.
Are Police Free to Disregard Miranda?
Authors: Clymer Steven D.
Published: July 2018

112 Yale Law Journal 447 (2002)
Financial Law (By: Lecturer PhD Cosmin Flavius Costas)
Authors: BOSTAN Ionel
Published: July 2018

Through these lines we will stop on a specialty written by a young university student, an exponent of the Superior Law School in Cluj-Napoca. This is the book entitled Drept Financiar [Financial Law], published by Lecturer PhD Cosmin Flavius Costas. On the volume entitled Financial Law, which was published at the end of the year 2016 (ISBN:978-606-673-816-3, Pages: 396) we mention here a radiography "made from four perspectives - national finances, local finance, social security finances and EU finances - to get the best picture of contemporary financial activity" [15].
The Costs of Conscience
Authors: Schwartzman Micah , Tebbe Nelson , Schragger Richard
Published: July 2018

AbstractWhen the government enacts laws or regulations that accommodate religious believers, it may not impose significant costs on identifiable third parties. This is sometimes called the third-party harm doctrine. Critics of this doctrine have raised a diversity of objections to it. They have argued that it (1) lacks normative foundations, (2) is not grounded in constitutional sources, (3) assumes an incorrect baseline for determining when third parties are harmed, and (4) cannot be applied without eliminating all, or nearly all, religious accommodations. Critics have also argued (5) that the doctrine does not apply when the government provides legal exemptions for both religious and secular claims of conscience, and (6) that religious freedom is like other fundamental rights that impose harms on others. We argue that none of these objections is persuasive. Responding to them provides an opportunity to develop the third-party harm doctrine in ways that illuminate the limits of religious liberty, freedom of conscience, and other constitutional rights.
Essay: Justiciability, Federalism, and the Administrative State
Authors: Clopton Zachary D.
Published: July 2018

103 Cornell Law Review 1431 (2018)Article III provides that the judicial power of the United States extends to certain justiciable cases and controversies. So if a plaintiff bringing a federal claim lacks constitutional standing or her dispute is moot under Article III, then a federal court should dismiss. But this dismissal need not end the story. This Article suggests a simple, forward-looking reading of case-or-controversy dismissals: they should be understood as invitations to legislators to consider other pathways for adjudication. A case dismissed for lack of standing, for mootness, or for requesting an advisory opinion might be a candidate for resolution in a state court or administrative agency. And although the Supreme Court has frequently policed the delegation of the “judicial power of the United States,” legislative delegations of non-justiciable claims should not transgress those limits. Instead, case-or-controversy dismissals imply that non-Article III options are permissible.This formulation is more than a doctrinal trick. It has normative consequences across a range of dimensions. For one thing, this approach reinvigorates the separation-of-powers purposes of justiciability doctrine by turning our attention from judges to legislators. When courts seemingly use justiciability to curtail private enforcement or access to justice, we could re-interpret the results as revealing a legislative failure to authorize non-Article III options. More affirmatively, case-or controversy dismissals could be focal points for political pressure in favor of more rigorous enforcement of important laws that the federal executive may be shirking. Further, consistent with “new new federalist” accounts, this Article suggests another avenue for federal–state interactivity in the development and enforcement of federal law. This too is of added salience given that private and state enforcement may become even more significant in light of the current occupants of the federal executive branch.