Authors:Shillings-Barrera; Jessica Abstract: Access to infertility treatment, particularly Assistive Reproductive Technology (“ART”), such as In Vitro-Fertilization (“IVF”), continues to be prohibitively expensive and is not typically covered by employer- based insurance plans. Only a handful of states require employer-based insurance plans to cover any kind of infertility treatment. However, even those states that do, are inconsistent about which types of treatment must be included in the qualifying plans and differ in their definitions of infertility. These inconsistencies, in both coverage and definition, operate as discriminatory gatekeeping devices, privileging certain would-be parents while discriminating against others by barring access to screening and treatment. Without independent wealth or insurance coverage, most would-be-parents must rely only on their personal savings and an IRS rule)Internal Revenue Code section 213(a) that allows taxpayers to deduct the cost of medical expenses above 7.5% of their adjusted gross income. However, the IRS rule does not allow for the deduction of third-party medical expenses unrelated to the taxpayer. This discriminates against would-be-parents who utilize the assistance of (and bear the cost of) an egg donor or gestational carrier.Access to infertility treatment should be formally recognized as a fundamental liberty interest under the Fourteenth Amendment. To guarantee consistent nationwide coverage from employer-based insurance plans, the infertility community also needs its own accompanying Infertility Discrimination Act (“IDA”), styled like the Pregnancy Discrimination Act. An effective IDA should explicitly state that an otherwise inclusive plan that singles out infertility-related benefits for exclusion is discriminatory. Additionally, the tax code should be modified to allow prospective parents to deduct medical costs incurred on behalf of third parties for the purpose of overcoming medical and/or circumstantial infertility. PubDate: Tue, 27 Dec 2022 12:51:57 PST
Authors:Lau; Andrew Abstract: Human embryonic stem cell research has tremendous potential for treating or curing many diseases that cause human suffering. Nevertheless, federal funding for stem cell research has had a controversial history in the United States. While many Americans believe that stem cell research will lead to the development of critical medical technology, others oppose it because of its association with abortion. These ethical issues have made stem cell research a prime target for political posturing, particularly because of how much power presidents have over stem cell research policies. By using vetoes, directives, or executive orders to manipulate stem cell policies, presidents have engaged in executive branch judo to work around the separation of powers and engage in unauthorized lawmaking activity at the expense of the public.This note will analyze the history of the United States’ stem cell research policies and explain how presidents have interfered with its development. Based on the principles of Youngstown Sheet & Tube Co. v. Sawyer, presidents have repeatedly manipulated stem cell policies in violation of the Constitution. In light of these violations, this note proposes several methods to curtail the president’s unilateral control over an entire field of scientific research. Human embryonic stem cell research represents the next frontier of biomedical science, but its benefits will only reach the American public if the United States puts an end to the presidential practice of using executive branch judo to manipulate it. PubDate: Tue, 27 Dec 2022 12:51:55 PST
Authors:Wald; Samantha M. Abstract: The U.S. Supreme Court’s decision in Samsung Electronics v. Apple Inc. regarding the meaning of the term “article of manufacture” in Section 289 of the Patent Act neglects to resolve foundational distinctions in the protected scope of multi-component devices. Cloaked in ambiguity, the Court’s brief and ostensibly limited opinion critically fails to demonstrate when the relevant “article of manufacture” should be treated as the whole commercial product or as some smaller unit; nor does it explain how to identify the relevant “article of manufacture” if it is less than the product as a whole. Instead, the Supreme Court’s dictionary-based definition of the term “article of manufacture” has unearthed more questions than answers, the most salient being how to identify the relevant “article of manufacture” and appropriate remedy for infringement of multifaceted products.This Article attempts to do what the United States Supreme Court would not: it sets out a test for identifying the relevant “article of manufacture” at step one of the Section 289 damages inquiry. Finding inspiration in the copyright doctrine of separability, it advances a statutory framework, judiciously delineating a more standardized approach to “article of manufacture” identification in multi-component devices. Specifically, through the development of a “separability” test, this Article imposes a constructive foundation of statutory guidance that does not broadly capture or exclude all components of the claimed design. Instead, it proposes a workable standard that explicitly determines when the component of an invention, rather than the invention itself, should constitute the relevant “article of manufacture.” If implemented, this test would foster consistency in the practice of design patent law by establishing predictability through the furtherance of more precise guidelines. PubDate: Tue, 27 Dec 2022 12:51:54 PST
Authors:Fair; Bryan K. Abstract: The purpose of this Article is to lay bare federalism by deception and the theory of implied limits on federal power. Other scholars have recently noted the rise of anti-federalist viewpoints in modern cases. I go a step further to demonstrate how Supreme Court Justices have embraced anti-federal ideology, but have cited Federalist sources, including Marshall, to announce unenumerated limits on federal legislative power. PubDate: Tue, 27 Dec 2022 12:51:52 PST
Authors:Carrillo; David A. et al. Abstract: The recall is one of three direct democracy tools in California. Following the failed 2021 recall attempt against California Governor Gavin Newsom, the state recall process has been criticized for evolving beyond its intended purpose to the point of being overpowered and prone to abuse. After reviewing the recall’s original intent, we conduct a quantitative analysis of state and local recall attempts in California and compare this to other recall states. We conclude that the critique is unjustified. In California and elsewhere, state official recalls are frequently attempted but rarely qualify for the ballot, demonstrating that the existing recall system is an effective filter. We validate the charge that the recall is primarily a tool of out-party interests, but conclude that this is an intended design feature rather than an unanticipated defect. We conclude instead that California’s local recall is the better target for reform efforts, given its comparatively easier qualifying requirements, greater use, and higher success rates. Rather than deviating from its intended purpose, in its 110 years the California state official recall proved to be exactly what its Progressive designers intended: a voter weapon to menace and remove public officials, but one that is difficult to deploy. We frame the recall as less about politics and more about policy: recalls function as public opinion or policy polls and overall tend to validate existing policy. Finally, we conclude that most proposed reforms are solutions seeking a problem, and that California’s recall system merits just a few small procedural changes. The upshot is that the view of California’s recall as a force gone amok is incorrect. PubDate: Thu, 03 Nov 2022 12:11:58 PDT
Authors:Yazzolino; Sydney Abstract: Creators have gone digital and so have copyrights. To combat rampant piracy, creators flock to digital rights management systems (DRM), which control user access to copyrighted material through technology. However, DRM can be bypassed, and file-sharing networks make it easy to distribute and download illegal copies. In response, Congress enacted the Digital Millennium Copyright Act (DMCA), which makes it illegal to circumvent digital rights management technologies. This Note will analyze the effectiveness of the DMCA in the light of DRM technology in 2022. Both copyright holders and users of the copyrighted works have legitimate concerns over how digital copyrights are treated and enforced. Copyright holders are concerned with digital piracy, while consumers are concerned that the use of DRM will interfere with their right to fair use and the exhaustion principle. As it currently stands, the DMCA does not adequately address the rights of consumers. It favors the copyright holder and needlessly expands the boundaries of copyright protections. To restore the balance between consumers and copyright holders, § 1201 of the DMCA should be amended to address circumvention of technological measures that facilitates copyright infringement—not all circumvention. By narrowing the language, the DMCA will properly address consumer interest while still allowing copyright holders to protect their copyright PubDate: Wed, 26 Oct 2022 10:14:55 PDT
Authors:Blasing; Marissa J. Abstract: The Telephone Consumer Protection Act (“TCPA”) was introduced in 1991 before the rise of the cell phone, text messages, and broadband internet. It placed restrictions on then-contemporary technology used to reach consumers in an automated way and its primary purpose was to protect consumer’s privacy interests and public safety. Yet, it has proven to be an odd and increasingly outdated law. The federal government has made a good-faith effort to maintain the TCPA’s relevancy. However, evolving technology and inconsistent interpretations of the law’s fundamental elements have resulted in harm to consumers and businesses. During the COVID-19 pandemic, the law also interfered with efforts to disseminate information quickly and efficiently to the public at the detriment of consumers.Last year, the Supreme Court brought some relief to businesses after it issued its highly anticipated decision in Facebook v. Duguid. The Court held that the capacity to use a random or sequential number generator to either store or produce phone numbers is a necessary feature of an Autodialer, rather than technology only needing the capacity to store phone numbers to be called and to dial such phone numbers automatically, a definition that once reached every American using a smartphone.Unfortunately, the Court was unable to modernize the law. With innovative technologies and government-enabled programs directed at protecting consumers’ privacy and economic interests, restrictions on the type of technology used to make the calls are no longer necessary today. The government can effectively accomplish its goal by regulating the contents of the call, not the technology used to make the call. PubDate: Wed, 26 Oct 2022 10:14:54 PDT
Authors:Kamalnath; Akshaya et al. Abstract: This Article argues that commercialisation of space coupled with technological innovation calls for a regulatory approach beyond (and complementary to) the treaty regime offered by international law. The rapid technological advances in the financial sector and corresponding regulatory innovations make financial technology (fintech) regulation a likely candidate to draw lessons from for the nascent space sector. The Article draws from the fintech sector and proposes that some lessons about initial regulation via regulatory sandboxes and sandbox bridges are useful in the space sector. At the domestic level, the Article proposes regulatory sandboxes to enable innovation while ensuring the necessary safeguards; and at the multi-national level, it proposes cooperation between regulators in various spacefaring nations along the lines of sandbox bridges used in the fintech sector. Since different states have varying levels of space sector activity, this Article makes broad recommendations with pointers that identify aspects that are more suitable to certain types of jurisdictions than others. PubDate: Wed, 26 Oct 2022 10:14:52 PDT
Authors:Douglas; Erika M. Abstract: “Predatory innovation” claims allege that a monopolist has redesigned its product to exclude competition, in violation of antitrust law. This Article examines the messy jurisprudence on predatory innovation. It finds analytical paradigms that are almost as numerous as the decisions themselves, and persistent Circuit splits. While some courts worry that judicial scrutiny of product redesigns will chill future innovation, others are willing to examine the competitive effects of exclusionary redesigns.The Article proposes a new, industry-contextual approach to untangle this predatory innovation jurisprudence. In existing law, antitrust courts often treat innovation as monolithic across industries. The Article draws on cross-disciplinary insights from patent and economic literature to show that, in fact, the characteristics of innovation are variable and deeply industry-specific. For example, patent literature observes a paradigmatic contrast between pharmaceutical innovation (which tends to be episodic, expensive and patent-driven) and software innovation (which tends to be cumulative, collaborative and less dependent on patent exclusivity). Since the processes and character of innovation vary widely by industry, the Article argues that antitrust analysis of innovation should vary as well. Courts should tailor their treatment of predatory innovation claims to account for the distinct processes and characteristics of innovation in the industry at stake.The Article then applies this proposed industry-contextual approach to recent “product hopping” cases, which allege the predatory redesign of pharmaceutical drugs. It argues that industry context usefully informs two Circuit-splitting controversies: the appropriate level of judicial deference to product redesigns, and the use of consumerpreference or choice to judge whether a redesign is innovative. PubDate: Wed, 26 Oct 2022 10:14:51 PDT
Authors:Coleman; Ronald J. Abstract: Police body cameras have been in ascendancy since at least the 2014 deaths of Eric Garner and Michael Brown, and body cameras are poised to play an increasing role in law enforcement following the more recent deaths of George Floyd, Daunte Wright, and others. Indeed, President Biden, himself, has repeatedly called for the passage of the George Floyd Justice in Policing Act of 2021, which would require federal law enforcement officers to wear a body camera. Notwithstanding their ascendancy, important empirical questions on body cameras persist. For instance, do local law enforcement agencies have adequate infrastructure to support body camera programs' If not, what areas should policy-makers target in order to increase the adequacy of local agency infrastructure' And, are certain groups of agencies doing better with body camera infrastructure than others' Answering these and related questions requires accurate measurement of phenomena that are extremely challenging to measure. This Article presents what appears to be a first-of-its-kind multidimensional measure of local U.S. law enforcement body camera infrastructure: the Police Body Camera Infrastructure Index (“BCII”). Analysis of the BCII offers three primary contributions. First, it provides a broad summary of over 1,100 local agencies’ inadequacy in body camera infrastructure based on a large-N dataset. Second, it isolates the specific factors which drive agency inadequacy. Third, since countrywide averages have the potential to mask important differences across agencies, it reveals the position of certain agency subgroups based on size and location. It is hoped that this Article will inform policy-makers and local stakeholders in improving body camera programs, highlight the value of measurement in formulating such policy decisions, and spur continued research into body camera programs. PubDate: Wed, 26 Oct 2022 10:14:50 PDT
Authors:Anderson; Bradford P. Abstract: In the midst of a tight labor market and increased inflation, freedom of movement for employees is a critical right, allowing individuals to seek out the best employment opportunities. Freedom to change jobs, without non-compete restrictions, has a positive impact on innovation and technological progress, enabling the best and brightest minds to migrate to the most innovative employers paying the best wages and offering respectful treatment in the workplace. Concomitantly, employers may view such freedom of employee movement as a negative, due to a perception that the law results in increased turnover and hiring costs, as well as a risk to trade secret protection.California’s Business and Professions Code (“BPC”) section 16600 guarantees the right of employees to be free of non-competition restrictions, thereby granting the ability to work for competitors or start a competing business. A remnant of careless judicial dictum from the California Supreme Court, over a half century old, refers to a non-existent “trade secret exception” to California’s statutory ban on non-competition agreements. This Article analyzes and demonstrates that there is not a trade secret exception to BPC section 16600. PubDate: Wed, 26 Oct 2022 10:14:48 PDT
Authors:Sturm; Susan Abstract: Effective lawyering requires the ability to manage contradictory yet interdependent practices. In their role as traditionally understood, lawyers must fight, judge, debate, minimize risk, and advance clients’ interests. Yet increasingly, lawyers must also collaborate, build trust, innovate, enable effective risk-taking, and hold clients accountable for adhering to societal values. Law students and lawyers alike struggle, often unproductively, to reconcile these tensions. Law schools often address them as a dilemma requiring a choice or overlook the contradictions that interfere with their integration.This Article argues that these seemingly contradictory practices can be brought together through the theory and action of paradox. After identifying the features of these two lawyering practices—called here legality and proactive lawyering—the Article sets out five lawyering paradoxes that stem from the opposing yet interdependent features of legalistic and proactive lawyering: paradoxes of thought and discourse; relationship; motivation, mindset, and justice. Next, the Article shows the consequences of legal education’s tendency to avoid, sidestep, or downplay these paradoxes. Finally, drawing on existing research and experiences of innovators, the Article identifies three strategies that can enable students and lawyers to construct a dynamic tension between legality and proactive lawyering, and in the process, build the potential for transformative learning and meaningful justice. PubDate: Thu, 28 Apr 2022 11:36:31 PDT
Authors:Teague; Leah Abstract: Through service and leadership, lawyers influence people and impact organizations and communities. Law students need to be aware of their opportunity for influence as part of their professional identity and they need to be prepared for the obligations of service that accompany the privilege of acquiring a law degree. The number of law schools with leadership development courses and programs has grown rapidly over the last ten years to: encourage law students to embrace their obligation to serve clients and society; better equip law students for positions of leadership and influence (including building relationships with clients); and inspire them to boldly seek opportunities to be difference-makers in their communities and the world. The movement to increase the development of lawyers’ professional identity also has grown during that time and will continue to advance with the proposed revisions to ABA Standard 303. The author discusses the important role of lawyers as leaders in society, examines the growth of the leadership-development movement, and offers thoughts about its relationship with the professional-identity movement. The author advocates that both professional identity and leadership development complement professional responsibility efforts and are essential to the education and training of modern law students. PubDate: Thu, 28 Apr 2022 11:36:30 PDT
Authors:Short; Aric K. Abstract: Law schools across the country are beginning to address the growing need to incorporate leadership training into their curricula; however, very few explicitly cover leadership in the 1L year. This article argues for the value of providing leadership training to 1Ls as part of a required course on professional identity formation. Because foundational leadership concepts overlap in meaningful ways with core lawyering competencies, such integration is both practical and efficient. Beginning leadership in the 1L year allows law schools to build on that foundational material in later clinics, externships, upper-level classes, and other experiences, creating deeper leadership skills in their students. In addition, providing 1Ls with competency-focused leadership training can also provide a number of benefits to both students and the institution, including helping students improve their academic performance in their first year and reframing their experience to emphasize the development of skills that will help them interview most effectively for the jobs they want. In addition, leadership training can help 1Ls better process and deal with the normal challenges and pressures of law school that create mental health problems for many students. In fact, emphasizing those related benefits of 1L leadership training—specifically, helping students improve their grades and more effectively identify careers that are a good fit for them—may be the strongest selling points of such a program to many students. PubDate: Thu, 28 Apr 2022 11:36:28 PDT
Authors:Rooksby; Jacob H. Abstract: Leadership in any setting is hard, often physically as well as emotionally. Academic leadership requires a full-dimensional, mind-body-soul effort that uniquely calls upon one’s baseline character, positionality, and preparation for leadership. Our willingness and ability to read the word as we also read the world combine to shape our approach and range as leaders. And ultimately, our legacy is our imprint on people. This article shares the views of a law school dean on how life experiences, leadership lessons, and book learning intertwine to inform our humanity and charter our influence on people and organizations. PubDate: Thu, 28 Apr 2022 11:36:26 PDT
Authors:Polden; Donald J. et al. Abstract: This Article discusses the problem of implicit bias within the legal profession; why its persistence impedes the work that lawyers do; and the need for leaders to take steps to recognize, understand, and ameliorate it. Implicit biases, also referred to as unconscious biases, are prejudices that people have, but are unaware of their existence. These biases act as mental shortcuts based on known stereotypes and social norms that cause people to make decisions that favor one group to the detriment of another. Even though the United States has laws prohibiting discrimination on the basis of race, religion, gender, and disability, these laws are incapable of confronting the systemic racism perpetuated by implicit bias. A law will not prevent people from reacting to biases that they are unaware they hold. For this reason, leaders cannot lead equitably without first discovering what biases may be influencing their decisions at the sub-conscious level. This Article calls for leaders within the legal profession to educate themselves about implicit bias, discover what implicit biases they harbor on a personal level, take time to ensure that their decisions are not being influenced by such biases, take steps to de-bias, and lead their constituents to do the same. PubDate: Thu, 28 Apr 2022 11:36:25 PDT
Authors:Heminway; Joan MacLeod Abstract: Change is ubiquitous, and lawyers, as trusted advisors to individuals and organizations, must acknowledge and address change. Moreover, as essential, everyday leaders in their many capacities (professional, community-related, and personal) they often find themselves leading change by design or by chance. Remarkably, however, lawyers have little awareness of or training in change leadership, long a mainstay in business management education and literature. Drawing from both this business academic and practice literature and the emergent literature on lawyer leadership, this article briefly makes a case for the purposeful teaching of change leadership across the law school curriculum. PubDate: Thu, 28 Apr 2022 11:36:23 PDT
Authors:Gustafson; Lindsey P. et al. Abstract: Our students will be more effective leaders, counselors, negotiators, and advocates as they deepen their ability to actively listen. As a professional and interpersonal skill linked closely with a lawyer’s success, our students’ ability to listen should demand our attention as legal educators. This attention is worth the effort because studies indicate active listening is not a static ability: we can teach students to be better listeners. But “active listening” is missing from most law schools’ learning outcomes or curricula, or it is only included as an undefined element of effective communication. Consequently, it is a critical lawyering skill that is routinely not being effectively, independently taught and assessed.This article introduces the Active Listening Milestone Rubric for Law Students, which is a stage-development or milestone model in competency-based education. The rubric includes four sub-competencies, which are defined using expertise drawn from listening experts and studies then explained in the context of the practice of law: 1) Active listeners assess and accurately allocate resources necessary to the conversation; 2) active listeners work to create a shared understanding with the speaker by considering both the speaker’s and the listener’s lenses and how they may differ; 3) active listeners work to increase shared understanding with the verbal and nonverbal cues; and 4) active listeners move to a response only after fully exploring and understanding the speaker’s meaning. PubDate: Thu, 28 Apr 2022 11:36:22 PDT
Authors:Swartz; Rodney Abstract: With what seems to be a fluke of history, the Supreme Court has developed a subject matter analysis framework embodied in 35 U.S.C. § 101 that relies on the preemption doctrine to justify invalidation. This Article establishes that preemption has a distinct objective that is more closely aligned with the written description framework of § 112 than with the subject matter eligibility framework of § 101. As a result of relying on preemption, the Court has created an arbitrary and difficult to apply test, resulting in a chasm between the United States Patent and Trademark Office (USPTO) and courts that is reminiscent of the difficulties in the patent system that lead up to the Patent Act of 1952.In response, this Article proposes a new framework that separates the preemption analysis from the subject matter eligibility analysis. Under this new framework, subject matter eligibility would revert to its pre-Benson approach, where judicial exceptions only cover natural phenomena, natural laws, and abstract ideas but not their equivalents. Further, this new framework is based on an objective standard where a claim is determined to be overly broad if it covers more than what the inventor has established they invented or modifications that are obvious to a person having ordinary skill in the art. After developing the new framework, this Article applies the approach to Parker v. Flook, Diamond v. Diehr, and Athena Diagnostics, Inc. v. Mayo Collaborative Services, LLC. This analysis demonstrates the new framework, provides a reasonable explanation for why the field limitation in Flook is not sufficient for satisfying claim breadth, which was unclear in the Court’s decision, and addresses the issues around the perceived per se law against medical devices. PubDate: Wed, 08 Sep 2021 15:02:17 PDT
Open Access journal
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