Authors:Nichole Hamsher Abstract: Self-defense, while universally recognized as a natural human right, embodies a complex set of scenarios that hinges on the level, place, and imminence of a threat to life. The modern expansion of self-defense laws, namely Stand Your Ground, allows for a wholly subjective anticipation of a threat by removing the duty to retreat, and withdraws both criminal and civil accountability. Such expansion has not afforded increased protection to those who need to use force in self-defense, such as domestic abuse victims, nor has it lowered crime rates, but actually works against such victims and increased homicide rates while not deterring other violent crimes. Further, unconscious biases and brain chemistry, in conjunction with the permission granted by the law, allow overly aggressive responses to rule in situations where none is required. In situations where individual rights overlap, Stand Your Ground prioritizes and rewards aggressive behavior without allowing for any investigation into whether such actions were justified. Stand Your Ground’s expansion of self-defense is unnecessary and delivers none of the benefits promised by its proponents. PubDate: Mon, 25 Apr 2022 08:34:31 PDT
Authors:Jacob Davis Abstract: For nearly twenty-four years, the state of Ohio has funded education unconstitutionally. Columbus lawmakers have paid little attention to the DeRolph progeny of cases, which repeatedly provided that an education funding formula rooted in property tax values fails to pass constitutional muster. In 2019, lawmakers finally provided a solution in HB 305: the Cupp-Patterson proposal. This paper will first survey the checkered history of school funding litigation in Ohio. Then, this newly proposed approach to educational funding will be detailed and critically evaluated, with a focus placed on the hurdles that remain before it can become law. Ohio’s students deserve change, and the Cupp-Patterson proposal is the first step in the right direction toward ensuring an adequate and equitable education for all. PubDate: Mon, 25 Apr 2022 08:34:27 PDT
Authors:Lyndsey Gallwitz Abstract: Felony disenfranchisement laws prevent millions of American citizens from voting. While the recent legal trend has been to eradicate felony disenfranchisement, each state currently has a unique framework, and the issue remains unsettled nationwide. In 2018, the state of Florida passed a constitutional amendment that allowed felons to regain their right to vote once their sentence was finished. Soon after, the Governor DeSantis signed Fla. Stat. Ann. § 98.0751 into law, which required felons to pay off all court cost before their right to vote will be restored. This new law prevented thousands of otherwise eligible felons from voting in the 2020 general election, disproportionately impacting lower income Black voters. This article makes policy arguments against Fla. Stat. Ann. § 98.0751 and demonstrates that the law violates the Twenty-Fourth Amendment by requiring felons to pay a tax in order to regain their right to vote. PubDate: Mon, 25 Apr 2022 08:34:22 PDT
Authors:Brent Skorup Abstract: Federal and state governments have embraced drone technology in recent years to stimulate a domestic industry for new jobs and long-distance delivery services. However, the federal-state breakdown about who manages drone airspace and surface air rights has not been resolved, which, as the Government Accountability Office recently reported to Congress, threatens the progress of the U.S. drone industry. What is clear is that landowners, whether public or private, own low-altitude airspace and air rights. This article traces the legal treatment of surface airspace as real property back to Anglo-American legal treatises and court decisions in the mid-19th century. Therefore, absent a revolution in property and government takings law, state and city authorities will play a major role in demarcating drone highways, as well as creating time, place, and manner restrictions such as time-of-day rules, noise maximums, and privacy protections. This paper proposes a cooperative federalism system of airspace leasing above public roads to avoid most nuisance, trespass, and takings lawsuits from residents. Finally, this paper proposes a legal presumption for courts, establishing an altitude where private air rights end and federally managed airspace begins. PubDate: Mon, 25 Apr 2022 08:34:18 PDT
Authors:Kristen M. Blankley Abstract: Empirical evidence on the Supreme Court’s use of tools of statutory interpretation is an emerging field of legal study. This Article is the first to use these methodologies to analyze the Federal Arbitration Act (FAA), enacted in 1925. I analyzed 114 separate Supreme Court arbitration opinions, coding for fourteen different tools of statutory interpretation. This article presents the results of that analysis. The most striking finding from this study is the extraordinarily insular nature of the FAA jurisprudence compared to other scholars’ studies in their respective areas of the law. This nature can be determined statistically from the Supreme Court’s reliance on three key tools of interpretation: (1) prior FAA precedent; (2) the text; and (3) the Supreme Court-created arbitration canon. Relying on these specific tools, the Supreme Court expanded the FAA’s reach, required increasingly more disputes to be arbitrated, and limited the availability of classwide procedures. Since the 1980s, the FAA decisions increasingly favor business interests at the expense of individual consumers, employees, and franchisees. Given the FAA’s age and limited legislative history, the Court relies on itself to divine the Act’s intent as it applies to areas not likely in the contemplation of Congress in the 1920s. This research demonstrates empirically what various justices noted anecdotally—the Court stands on “its own shoulders” to create and enlarge the FAA’s reach. PubDate: Mon, 25 Apr 2022 08:34:13 PDT
Authors:Dennis Crouch et al. Abstract: The Supreme Court has warned against the creation and expansion of patent-specific rules of procedure where the general law would suffice. The recently revived and expanded Kessler doctrine is one such patent-specific rule, and we argue its time has come for resorption into the general law of preclusion that has since expanded to encompass the doctrine. We utilize a novel law and economic analysis of the rules of preclusion to demonstrate how lower courts’ expansion of the Kessler doctrine defeats the rationale behind the general law of preclusion. PubDate: Mon, 25 Apr 2022 08:34:08 PDT
Authors:Frank D. LoMonte et al. Abstract: This Article traces the First Amendment caselaw that, for more than half a century, has sided with speakers facially challenging overbroad workplace policies that forbid sharing information with the press and public. The Article then reports on the results of a nationwide survey of police and sheriff’s department policies by the Brechner Center for Freedom of Information, concluding that well over half of the nation’s biggest law enforcement agencies have rules on the books that resemble—or are identical to—those struck down as unconstitutional when challenged, at times in defiance of binding circuit-level precedent. The Article examines why these legally dubious policies persist in spite of overwhelming precedent and identifies a handful of narrowly tailored agency policies taking a balanced approach toward employee speech that can serve as models. Ultimately, the Article concludes, it will take legislative action to unshackle the voices of America’s law enforcement officers, since litigation alone has done little to deter persistent enforcement of “gag rules” that deprive the public of the benefit of candid information about how the ultimate governmental power—police power—is being used. PubDate: Mon, 25 Apr 2022 08:34:04 PDT
Authors:Timothy J. Holzer et al. Abstract: Cambodian law permits the taking of and the perfecting of a security interest in movables (e.g., goods) and in intangibles (e.g., legally enforceable rights, such as contracts and rights in property.) Cambodia’s system is strongly patterned after Article 9 of the Uniform Commercial Code as developed in the United States. Perfection (i.e. notice to third parties that a security interest exists) is usually effected by the filing of a notice at the Secured Transactions Filing Office (the “STFO”) of the Ministry of Commerce, although sometimes physical possession may be required. However, conflicting or ambiguous provisions in other Cambodian laws may adversely affect the security interest obtained and perfected under the Law on Secured Transactions. Most of these conflicting provisions are found in the Civil Code and the Pawn Shop Regulations. This Article explores key principles and nuances in Cambodia’s Law on Secured Transactions, particularly those issues related to the nature of collateral, the perfection of security interest and the risk and conflicts arising under Cambodian laws. PubDate: Tue, 29 Mar 2022 07:15:24 PDT
Authors:Nguyen The Duc Tam et al. Abstract: If you ask many employers in Vietnam why they use non-competition agreements (noncompetes), they will confidently tell you that they are trying to protect their legitimate ownership interests. However, what they are less confident about is the legal enforceability of noncompetes. Such uncertainty hurts both employers and employees. The ambiguity regarding the enforceability of noncompetes not only discourages employers from bringing trade secrets into Vietnam but also deprives employees of opportunities for employer investment and personal development. In this article, we argue that noncompetes should be enforceable in Vietnam. However, noncompetes should be binding only if they are necessary to protect an employer’s trade secret(s). This article proposes that the employer must establish this necessity by satisfying the following five-element test. First, the employer has a protectable trade secret. Second, the employee performs work related to such trade secret. Third, the employer sufficiently informs the employee about the noncompete before the employee signs it. Fourth, the noncompete is reasonably limited in scope. Fifth, the employer offers separate consideration to the employee for signing the noncompete. PubDate: Tue, 29 Mar 2022 07:15:19 PDT
Authors:Luong Duc Doan et al. Abstract: Without a doubt, Vietnam has enjoyed outstanding economic performance since the adoption of doi moi in 1986. To a significant extent, Vietnam has accomplished this through the dramatic increase in international trade and investment. However, further economic progress will be undermined if international partners begin to question the fairness of the Vietnamese legal system – especially in the application of choice of law principles. At best, a perceived lack of transparency in choice of law decisions will increase uncertainty; at worst, it will foster the impression that Vietnamese Courts do not treat international parties fairly. Accordingly, this article recommends that all Vietnamese civil court cases involving non-Vietnamese parties should be published in a public, easily searchable database that discloses the traditional case identification information, the law applied, and the underlying rationale for the ultimate choice of law selection in the case. PubDate: Tue, 29 Mar 2022 07:15:15 PDT
Authors:Patrick H. Gaughan Abstract: This is the first in a series of articles that overarchingly proposes that the globalization of markets necessitates the integration of the Law & Economics Framework into legal education across all legal systems. The goal of this article is to introduce readers to the Law & Economics Framework by providing an overview of relevant terms, concepts, and historical background. This article discusses the interplay of lawyers and globalization; defines the Law & Economic Framework and its origins; details relevant principles of economics; and delves into some criticisms of the Framework. The remainder of the series will be devoted to demonstrating that the intersection of international commerce and national laws necessitates the implementation of the Law & Economics Framework in legal education across legal systems. PubDate: Tue, 29 Mar 2022 07:15:10 PDT
Authors:Larry Bridgesmith et al. Abstract: We live in an instant access and on-demand world of information sharing. The global COVID-19 pandemic has accelerated the necessity of remote working and team collaboration. Work teams are exploring and utilizing the remote work platforms required to serve in place of stand-ups common in the agile workplace. Online tools are needed to provide visibility to the status of projects and the accountability necessary to ensure that tasks are completed on time and on budget. Digital transformation of organizational data is now the target of AI projects to provide enterprise transparency and predictive insights into the process of work. In order to preserve legal frameworks without losing the high ground of principled rule making, standard setting, and practical application, prompt action is required. Legal practitioners as well as legal academics must coalesce to present a united front to persuade their constituents (clients, students, and others looking to them for guidance) that AI will serve to safeguard human legal rights, responsibilities, and remedies as this digital transformation sweeps every industry sector. PubDate: Fri, 11 Mar 2022 13:05:22 PST
Authors:Quinten Steenhuis et al. Abstract: In this paper, we focus on digital curb cuts created during the pandemic: improvements designed to increase accessibility that benefit people beyond the population that they are intended to help. As much as 86% of civil legal needs are unmet, according to a 2017 study by the Legal Services Corporation. Courts and third parties designed many innovations to meet the emergency needs of the pandemic: we argue that these innovations should be extended and enhanced to address this ongoing access to justice crisis. Specifically, we use the Suffolk University Law School's Document Assembly Line as a case study. The Document Assembly Line rapidly automated more than two dozen court processes, providing pro se litigants remote, user-friendly, step-by-step guidance in areas such as domestic violence protection orders and emergency housing needs and made them available at courtformsonline.org. The successes of this project can extend beyond the pandemic with the adoption of an open-source, open-standards ecosystem centered on document and form automation. We give special attention to the value of integrated electronic filing in serving the needs of litigants, a tool that has been underutilized in the non-profit form automation space because of complexities and the difficulty in obtaining court cooperation. PubDate: Fri, 11 Mar 2022 13:05:18 PST
Authors:Lucy Johnston-Walsh et al. Abstract: The COVID-19 pandemic has rocked the world in innumerable ways. This article argues that the COVID-19 pandemic has a silver lining for law students in experiential learning programs. The pandemic has forced law schools across the country to fully utilize remote learning technology. The pandemic similarly forced courts to accept virtual tools in an environment that had previously relied primarily on in-person appearances. The lessons that law faculty and judges have learned from the pandemic will be permanent and may change the methods of operation going forward. Law schools that embrace the lessons they learned can help their law students and graduates be better prepared for a new practice environment, as distance learning and virtual law practice are likely here to stay. This article discusses why, despite what some may think, remote learning can happen successfully with experiential education and why virtual experiences will benefit students, their employers, and the public in the future. This article offers a guide as to how one law school, with a long history of remote delivery, made this pivot, and offers concrete guidance for other schools that might want to continue using virtual technology to help deliver experiential education post-pandemic.In Part II of this article, we describe the legal academy’s historic resistance to remote learning and the standards that govern experiential learning. We analogize law school resistance to remote experiential learning to the resistance of parts of our judiciary system in embracing remote court operations. In Part III, we document the way in which COVID-19 changed the world of legal education and the courts. In Part IV, we offer our thesis that virtual or hybrid legal practice is here to stay, and virtual experiential learning is essential training for the modern law student. In Part V, we discuss several pedagogical modifications that should be made to address challenges that arise from the virtual practice format and how to most effectively teach law students. Additionally, we discuss best practices for designing fully remote and hybrid clinic and externship courses. Lastly, in Part VI, we discuss the broader lessons on how remote work in experiential settings can lead the way for transforming modern legal education post-pandemic and provide concrete guidance on how to do so. Finally, we offer an appendix, outlining some practical guidance and a checklist to utilize when designing remote or hybrid externships and clinics. PubDate: Fri, 11 Mar 2022 13:05:13 PST
Authors:Emily Iroz Rich Abstract: Beyond question, medical diagnostic tests, they save lives. The diagnostic tests also contribute to the overall health of the U.S. economy. However, the current state of subject-matter eligibility for patent protection does not incentivize the research and development of these life-saving tools. Previous legislative and judicial efforts to fix subject-matter eligibility have failed. This article proposes a diagnostic patent act to allow the protection of in vitro diagnostic tests. The proposed diagnostic patent act would include safeguards to allow adequate access to fundamental research while incentivizing the return of investment to the patent holder. Safeguards would include exceptions to patent infringement claims and compulsory licensing requirements under certain conditions. Exceptions, which limit infringement liability to third parties in specific situations, would be used for narrow experimental use and mandatory processes required to comply with federal regulations. Compulsory licensing, which requires patent holders to allow third parties to use a patent in certain circumstances in exchange for a determined fee, would be permitted when the patent holder acts in an anti-competitive way and for governmental or public health uses. The combination of these limitations on a patent holder’s exclusive monopoly will ensure that access to research is available while patent holders are adequately incentivized to develop innovative diagnostic tests. PubDate: Wed, 20 Oct 2021 12:27:20 PDT
Authors:Sharon K. Sandeen Abstract: Information and data have always been valuable to businesses, but in the Information Age, as businesses have figured out more ways to commoditize the information and data they possess, there has been a corresponding increase in expressed concerns about the unauthorized “disclosure” of information. Often, these concerns are expressed in absolute terms, as if any unauthorized disclosure of information constitutes an act of unfair competition or theft. The problem is that the common understanding of disclosure, particularly among information owners that seek to restrict access to the information they possess, belies the legal meaning of the term as used in various contexts.Sometimes, but not as often as information owners/possessors assert, the disclosure of information will result in the loss of associated rights in the information, but other times it will not. This can happen, for instance, when no legal rights attach to a specified body of information, or when any rights that do attach (like copyrights) continue to exist even if there is a disclosure of the information.Because different areas of information law have developed different meanings of the term disclosure (and related terms, like “publication”), it is important for scholars, courts, and litigants to understand those meanings and use them properly. Otherwise, there is a risk that claims of wrongful disclosure of information will unduly influence policymakers and judges to favor the claims of information owners/possessors over those who are entitled to access and use the subject information. In other words, the limitations that exist on the scope of various information rights should not be overshadowed by the rhetoric of loss and theft when no such loss or theft is possible.This article begins by first illustrating the different ways that the term “disclosure” is used in law, using trade secret law, patent law, and copyright law as case studies. It concludes by setting forth a typology of disclosure that should be used to explain the legal consequences of acts of disclosure for various types of information. Only Type-L disclosures (those that result in the loss of associated information rights) fit the rhetoric of information owners/possessors. PubDate: Wed, 20 Oct 2021 12:27:16 PDT
Authors:Kristen Osenga Abstract: Today’s technology standards are the result of an extraordinary amount of innovation, collaboration and competition. These concepts are interrelated, and each is enhanced or enabled by intellectual property. Where these three concepts come together in standards development, it is unsurprising that antitrust concerns are also present. Specifically, the interests of contributors, participants, and implementers must be fairly balanced to ensure that the appropriate types and levels of innovation, collaboration, and competition can occur—and that the public will benefit. It is important that antitrust enforcement involving standards development organizations and owners of standards essential patents recognize the careful balance of these three concepts. If antitrust enforcement elevates one goal—say competition—at the expense of collaboration and innovation, or if one set of actors in the standards development ecosystem—for example, implementers—is preferred over the other actors, there will likely be devastating effects on the standards development ecosystem.The tension between innovation, collaboration, and competition in the standards development arena, as well as the divergent interests of contributors, participants, and implementers are not new. Between 2015 and 2019, however, the viewpoints of the FTC and DOJ diverged in how they handled the tension. This paper argues that we must look carefully at the underlying policies driving the agencies’ behavior: both the outmoded viewpoints that the FTC is pressing as well as the innovation-positive perspective that has shaped the DOJ’s actions in recent years. By amplifying the modern perspective and focusing on creating the right incentives for the right reasons, future imbalances that harm innovation, collaboration, and competition in the standards world can be avoided. PubDate: Wed, 20 Oct 2021 12:27:11 PDT
Authors:Robert Merges Abstract: Patent policy has been dominated lately by efforts to reduce rent-seeking patent troll litigation. As recent reforms begin to take effect, it is timely to consider the more constructive aspects of patent litigation. This Article contends that the lag between product development and patent litigation, which pushes the problem of patent valuation into the ex post (after product development) period, serves just such a positive function. Re-search, development, and product roll-out can all take place first. Then, at a later stage, patent litigation sorts out the relative merits and contributions of the various inventors and competitors who contributed to the new product or technology. In the time between early commercialization and litigation, a good deal of helpful information comes to light about the product and its market. This makes valuation more tractable, especially as compared with the early (ex ante) development period, when uncertainty is high. Litigation also serves as a structured process that promotes party settlement, adding another dimension to its potentially positive role. PubDate: Wed, 20 Oct 2021 12:27:07 PDT
Authors:Margaret Chon Abstract: Emotions constitute an integral part of the diverse approaches that we bring to bear upon our most pressing law and policy issues. This article explores the role of emotions in intellectual property, information, and technology law (IP). Like other areas of law, IP commits to, prioritizes, and even honors, reason, logic, and facts—which can result in the sidelining of the affective components of law. Yet our affective responses to legal and other phenomena are affect both cognition and reason. Part I of the article provides a general overview of the field of law and emotions, pointing out how this approach to understanding law already exists, albeit still mostly incipiently, within IP. For example, our affective responses help to reinforce one of our main assumptions about IP: that legal incentives, such as copyrights and patents, motivate authors and inventors to create their respective works and inventions. In Part II, the article illustrates the operation of two specific emotions—nostalgia and hope—to demonstrate how an intentional analysis of emotions can impact IP law and policy. These two examples demonstrate that understanding how emotions undergird affect, attachment, attention, attraction, and repulsion for all areas of IP knowledge production is an essential first step to addressing our currently pervasive knowledge asymmetries, biases, and omissions. Put negatively, if we continue to ignore or minimize emotions in IP, we also will continue to risk an incomplete conceptual configuration of IP, at the cost of thwarting the primary policy goals of this increasingly crucial area of law. PubDate: Wed, 20 Oct 2021 12:27:02 PDT
Authors:Irene Calboli Abstract: True to its nature as a (hopefully) once in a lifetime event, the COVID-19 pandemic has led to a tsunami of trademark applications. These include the terms “COVID,” “Coronavirus,” and other medical and pandemic-management related terms. This unprecedented number of applications has been highlighted by several commentators in general terms in the past months. This Article examines these applications in detail. Notably, the Article presents the first and most complete survey of the applications filed between the onset of the pandemic and the end of 2020, which include the following terms: “COVID,” “Coronavirus,” “Quarantine,” “Social Distancing,” “Six Feet Apart,” and “Shelter in Place.” The author chose to include four additional terms related to the pandemic besides “COVID” and “Coronavirus” to illustrate the broader effects of the pandemic on the trademark application process. The Article proceeds as follows: Section II describes the methodology used to collect and examine the relevant “COVID-19 related” applications; Section III presents the data with specific details regarding the products for which the applications have been filed, the type of filing entities, the legal basis for filing, and the date of filing throughout the relevant period—the year 2020; Section IV elaborates on the distinct legal challenges that the “COVID-19 related” applications may face in order to be registered, notably the possibility that the signs are found to be descriptive, generic, or misleading, or cannot function as marks; Section V concludes and compares the data related to these applications with previous filings for signs including terms related to past sensational events, including pandemics. This comparison shows that the numbers of “COVID-19 related” applications are much higher than the filings submitted in the past. Moreover, 2020 saw a large increase in the numbers of trademark filings including other medical terms. This again illustrates the catalyst effect of the COVID-19 pandemic on the trademark application system. For the interest of the readers, the Article includes the complete dataset presented as Appendix. PubDate: Wed, 20 Oct 2021 12:26:57 PDT
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