Authors:Natalie Peters Abstract: Patents are necessary to incentivize innovation because they grant owners the right to protect inventions. To be patentable, an invention must be useful, it must be novel, and it must not be obvious. But the judiciary has struggled to apply the latter requirement, non-obviousness, particularly for highly technical innovations subject to FDA regulations. For these innovations, the progression through the regulatory jungle can take ten to twenty years and millions of dollars (2.6 billion for a pharmaceutical drug). The complexities of the regulatory process can also render an innovation unprotected by patent rights because, by the end of the process, the patent office may determine that the invention is “obvious” as a direct consequence of the process itself. But rendering inventions unpatentable merely because they show a reasonable expectation for success goes against the public interest. Because of the changing landscape of the path to the public domain and significant disincentives in regulated technologies, incentivizing innovation requires a reinterpretation of the obviousness standard. PubDate: Wed, 01 Feb 2023 11:12:29 PST
Authors:Shiv Narayan Persaud Abstract: The Article discusses critical race theory as a paradigm shift, and further dispels the notion that it promotes a form of Marxism. With the rise of political attitudes toward seeking legislation to denounce CRT, it is incumbent upon those in legal studies to investigate and bring the value of CRT into the forefront. The purpose of this Article is to open a new discussion on these issues, rooted in promoting cultural competency in the legal profession. PubDate: Wed, 01 Feb 2023 11:12:28 PST
Authors:Carol R. Goforth Abstract: In June 2021, the largest U.S.-based crypto exchange, Coinbase, announced plans to allow its customers to earn 4% interest on deposits of certain cryptoassets through a new “Coinbase Lend” program. Despite a positive reaction from its customers, on September 7, 2021, Coinbase announced it had received a notice from the Securities and Exchange Commission (SEC) to the effect that the Commission had preliminarily concluded that the proposed Lend program was a security and that Coinbase would be in violation of the federal securities laws if it proceeded. The threat of enforcement caused Coinbase to terminate the program. Shortly thereafter, in the wake of several state enforcement actions, the SEC also announced a settlement with BlockFi that terminated its crypto lending program in the U.S. Neither of these actions conclusively explained the test that the SEC was using to determine when a crypto lending program involves the issuance of a security. This article considers the appropriate test for evaluating crypto lending programs and concludes that in many cases, the appropriate test should look at whether there are “notes” that fit within the definition of security. This article suggests that the SEC is applying the federal securities laws too broadly without offering sufficient explanation for its interpretations and that the Coinbase Lend program in particular should not have been shuttered. The article concludes that continuing regulatory uncertainty as to the scope of the federal securities laws is depriving U.S. citizens of potentially valuable opportunities. PubDate: Wed, 01 Feb 2023 11:12:27 PST
Authors:Nicole Egan Abstract: For most people, robocalls are nothing more than an annoying side-effect of owning a cell phone today. But a successful robocall scheme is still capable of wreaking financial and psychological havoc on its victims. Senior citizens and cognitively impaired individuals are often targeted by fraudulent phone calls or texts because they may have trouble understanding how to identify and protect themselves from robocall abuse. This Note proposes a collaborative solution to this problem by calling on the judiciary and legislatures to minimize the amount of robocalls received by American telephone consumers. By adopting a broader understanding of the law and enacting stricter regulatory measures concerning automated calls and text messages, this Note theorizes that the unfair impact of robocalls on these targeted communities would decrease. After all, robocalls are a favorite tool used to illegally defraud unwitting recipients, many of whom are elderly or cognitively harmed. Rather than tasking telephone consumers with protecting themselves from phone fraud, the government should take responsibility and stop robocallers from evading the law in the first place. PubDate: Fri, 13 May 2022 12:47:20 PDT
Authors:Amanda Iocono Abstract: The school-to-prison pipeline is one of the nation’s biggest challenges as students of color, LGBTQIA+ students, and students with disabilities are being funneled into prisons. Thousands of articles have been written on the existence of the school-to prison pipeline and potential solutions. Federal and state policies have shifted to combat the pipeline, but there is still a large proportion of our nation’s students being criminalized on account of their looks and behaviors. This Note argues that the school-to-prison pipeline is a systemic practice of the American education system, and the education system is functioning exactly as designed. The continued use of zero tolerance policies and school resource officers are proof that this system exists and continues to evolve. To address the real structural inequities of the school system, it must be met with equally radical practices, such as restorative justice, that address the systemic harm. Restorative justice, when done correctly and with the right resources, can be the solution to the school-to-prison pipeline. PubDate: Fri, 13 May 2022 12:47:19 PDT
Authors:Daniel Gordon Abstract: This article rethinks the meaning of the 1943 Barnette case and questions the canonical status of Justice Robert Jackson’s famous opinion for the majority. On the assumption that we have lost sight of the logic that had been used to uphold compulsory flag salute laws, the article traces the many state court opinions on this topic prior to World War II. Also brought under scrutiny is Jackson’s usage of the term “totalitarian” to describe flag salute laws, a quasi-theological term promoted first and foremost by the Jehovah’s Witnesses. Jackson’s opinion in Barnette, while rhetorically compelling, was out of sync with his own First Amendment jurisprudence as a whole. Finally, the article highlights overlooked strengths of Justice Felix Frankfurter’s dissent in Barnette, notably his defense of state jurisdiction on the basis of epistemic pluralism. What makes Barnette a truly great case is not the often quoted passages in Jackson’s opinion but the complex interchange between Jackson and Frankfurter about the nature of democracy and judicial review. PubDate: Fri, 13 May 2022 12:47:19 PDT
Authors:Ricardo Licea Abstract: The trend towards accepting the violation of consent as the underlying wrong addressed by rape law conflicts with the almost universal rejection of rape by deception. Rape by deception is limited to fraud in the factum, however the exclusion of fraud in the inducement finds no support under a consent framework. The principal objections to the expansion of rape by deception are that it will criminalize common behavior, that rape by deception produces only minor harm, and that self-protection is a viable alternative. Analogizing from the criminalization of deception to obtain money shows that the criminal deception statutes need not be overbroad, and that self-protection is not an entirely feasible strategy. Moreover, rape by deception can in some circumstances produce the same core harms that distinguish forcible rape from other assaults. The problems raised by the critics of rape by deception can be avoided by adopting a test under which rape by deception is expanded to cover situations where a party has been made aware that the truth of an ascertainable representation relating to their person at the time of sexual intercourse is a prerequisite of consent to sexual intercourse and willfully deceives as to that representation with the intent of engaging in sexual intercourse. In recognizing the challenges surrounding such an expansion of criminalized rape by deception, a narrower test focused on core harms such as unwanted pregnancy and sexually transmitted infection is also offered. PubDate: Fri, 13 May 2022 12:47:18 PDT
Authors:Lynn M. LoPucki Abstract: This Article is the first to present a comprehensive theory and style for using PowerPoint to teach law. The theory is that presentation software adds a channel of communication that enables the use of images in combination with words. Studies have shown that combination to substantially enhance learning. The style is based on an extensive literature regarding the use of PowerPoint in teaching law and other higher education subjects as well as the author’s experimentation with PowerPoint over two decades. The Article states fourteen principles for slide or slide sequence design, provides the arguments from the literature for and against them, and explains the techniques by which the author implements them. It argues that PowerPoint is effective for eight purposes: (1) providing high-level overviews, (2) explaining concepts, (3) listing sets of rules or possibilities, (4) analyzing statutory or other language, (5) comparing statutes, rules, and concepts, (6) showing physical manifestations of the legal system such as documents or websites, (7) diagramming concepts, relationships, and transactions, and (8) supporting discussions by displaying the assumptions on which the discussions are based. The Article contains miniatures of fifteen full-color slides that exemplify both these uses and the design principles. It concludes that a PowerPoint channel that is on all the time is inevitable. But before that happens, law teachers must design the imagery through which law will be taught. PubDate: Sat, 26 Feb 2022 11:52:09 PST
Authors:Alyssa F. McCartney Abstract: In 2019, Pennsylvania enacted Act 77, the first update to the Pennsylvania Election Code in nearly eighty years. Passed on a bipartisan basis, the law included a measure that permitted “no reason” mail-in ballots. Act 77 allowed any registered voter to request a ballot by mail, fill it out in the applicable time frame, and send it back to be processed. In the wake of a global pandemic that left Americans unable to leave their homes, this necessary update caused quite the controversy only a few months after it was passed. The primary election used the updated process for the first time on June 2, 2020. Receiving nothing but praises and positive feedback, the measures seemed to keep tensions at ease. That is, until the sitting President’s re-election campaign filed suit against Pennsylvania Secretary of State Kathy Boockvar and the Commonwealth’s sixty-seven counties. Explaining a new process comes with challenges, but when you tack on a President purposely fanning the flames of doubt, mail-in ballots proved to be a tough sell. As President Donald J. Trump continued to allege baseless voter fraud accusations, the American people grew more restless in a year that was already full of uncertainty. As a key swing state in presidential elections, Pennsylvania took center stage in Trump’s war on the election “rigged by Democrats.” This article aims to address Trump’s relentless allegations of voter fraud—something that was sadly not new for him. By analyzing Pennsylvania and offering an insight into Centre County election protocols, this article will squash the baseless accusations to show the election results were fair, free, and unaffected by alleged fraud. Although President Trump refused to concede in hopes of the United States Supreme Court intervening, he lacked any standing and could not offer substantial evidence to support his claims. In short, these frivolous lawsuits were an attempt to undermine our democratic process by a man who has no shame spinning the narrative to suit his needs. PubDate: Sat, 26 Feb 2022 11:52:09 PST
Authors:Michele Cotton Abstract: American legal scholars and jurists have given the rule of law their sustained attention, and the international community has treated it as an important measure of societal well-being. But still the rule of law is not taken seriously. For one thing, little effort has been made to craft a definition of the rule of law that is actually useful. And even when legal scholarship does try at empiricism that could illuminate the vitality of our rule of law, it generally starts from the wrong hypotheses and uses the wrong methods. It focuses on how to achieve “access to justice” and privileges quantitative approaches and the supposed “gold standard” of the randomized controlled trial over the qualitative assessment that is necessary to hold ourselves accountable for the rule of law. However, it is nonetheless possible to derive a workable, consensus definition of the rule of law from the varied and elaborate concepts offered by legal scholars and jurists, which would provide a metric that could be used as the basis for more directly relevant research. Further, some of the research that has already been done about what goes on in our courtrooms does suggest what work evaluating the extent to which we are achieving the rule of law would look like. Such research must be done if we intend to ensure a fundamentally important mechanism for achieving many of our most cherished values, including equal treatment and social justice. We have to take the rule of law seriously if we intend to uphold those values. PubDate: Sat, 26 Feb 2022 11:52:08 PST
Authors:Katelyn Fisher Abstract: A person’s genetic information tells a detailed story of what someone looks like, who her relatives are, and even what illnesses she may develop. This information, as enlightening as it may be, can be especially damaging when utilized in a discriminatory way. This Note explores how the protections under the Genetic Non Discrimination Act of 2008 will no longer be sufficient for protecting individuals from genetic discrimination as the use of genetic information becomes more commonplace. The questions become: Where do we start' How and where should protections that extend to circumstances not covered by GINA be created in a way that results in comprehensive protections against genetic discrimination' This Note proposes that an effective way to achieve comprehensive protection is through incremental change in genetic anti-discrimination law at the state level before legislative change is attempted at the federal level. It argues that experimentation in the laws at the state level will allow for thorough and meaningful protections by allowing the concerns regarding genetic discrimination in the individual states to catalyze their legislative responses and will allow the states to learn from other states in determining effective paths for its own genetic non-discrimination legislation. Finally, this Note will explore potential legal frameworks that states could use as a model for genetic anti-discrimination legislation. PubDate: Wed, 30 Jun 2021 12:22:32 PDT
Authors:Ryan C. Griffith; Esq. Abstract: Criminal enforcement of anti-marijuana laws by the United States federal government has been non-sensical for more than twenty years. Culminating, ultimately, in an anomaly within American jurisprudence when California legalized marijuana in 1996 in direct violation of federal law, yet the federal government did little to stop it. Since then, a majority of states have followed California and legalized marijuana. Currently, thirty-six states and the District of Columbia have legalized medical marijuana despite federal law. Every year billions of dollars are spent on the federal enforcement of anti-marijuana laws while states collect billions in tax revenue from marijuana sales. Even more confusing is the fact that both President Obama and President Trump have issued federal directives loosening federal enforcement of laws criminalizing marijuana. Despite all this, marijuana maintains the status of a Schedule I substance, and the violation of federal marijuana law can, technically, result in a death sentence. The federal government has blundered numerous times on the issue of marijuana. These blunders have cost the country billions of dollars and ruined numerous lives through the unnecessary prosecution of marijuana offenders. This Article argues that because the states are capable of regulating marijuana, they should band together under the authority granted to them by Article V of the United States Constitution. That article provides an avenue to amend the constitution. If thirty-four states apply for an Article V Convention of the States, the federal government must convene one. An Article V Convention has never been held but has often been discussed. Considering a majority of the states and the District of Columbia have already legalized marijuana to some degree, and the federal government is undecided on marijuana enforcement, conditions are perfect for calling an Article V Convention of the States to ratify a Constitutional Amendment ending the archaic federal treatment of marijuana in this country. PubDate: Wed, 30 Jun 2021 12:22:31 PDT
Authors:D. Anthony Abstract: In the face of expanding U.S. Border Patrol operations across the country, that agency often acquires evidence during its searches that is unrelated to immigration or other federal crimes but may involve state crimes. States are then faced with the question of whether to accept such evidence for state prosecutions when it was lawfully obtained by federal agents consistent with federal law but in violation of the state’s own search and seizure provisions. Sometimes referred to as “reverse silver platter” evidence, states have come to widely varying conclusions as to the admissibility of federally obtained evidence that would clearly have been inadmissible had it been obtained by state actors. This Article explores the approaches and rationales employed by states on this question and the legal implications thereof, particularly in light of sometimes constitutionally dubious Border Patrol activities, the “border search exception” to the Fourth Amendment to the U.S. Constitution, and the broader significance of states choosing to sacrifice their own constitutional principles and rights of their citizens in the interest of prosecutorial convenience. PubDate: Wed, 30 Jun 2021 12:22:30 PDT
Authors:Lisa Raimondi Abstract: This Note explores how a right of publicity action might be used to address present day concerns regarding biometric data ownership rights where an individual’s likeness can essentially be bought and sold. As social networking and use of the internet has grown, so has the opportunity for people to engage with others and share their lives. However, that opportunity also comes with risk. More and more, people are required to accept the terms of use and privacy policies detailing how their biometric data will be collected and stored if they want to download and use certain technological applications. Most of these applications are offered to the public free of charge, so how is it these companies continue to increase their revenue' This Note purports that the users’ biometric data stands as a bargaining chip that is shared with tech companies in exchange for use of their product. After the companies collect this biometric data, it is sold for profit. By this very act it is proven that a person’s likeness has commercial value— and should not be misappropriated for another’s benefit. At the time of this Note, a few U.S. states have enacted biometric data regulations, but in the majority of states, consumers remain vulnerable. This is where the common law right of publicity comes in, as a potential vehicle to help everyday citizens regain control over their likeness, or at minimum, receive compensation where it is misused. Biometric data regulation is in its nascent stage and the extent of damage resulting from the individual’s loss of control over their biometric data is as yet unknown, but this Note endeavors to work out a possible avenue to regain control over commodified identity. PubDate: Wed, 30 Jun 2021 12:22:27 PDT
Authors:Michael D. Murray Abstract: Contracts have always relied on text first, foremost, and usually exclusively. Yet, this approach leaves many users of contracts in the dark as to the actual meaning of the transactional documents and instruments they enter into. The average contract routinely uses language that only lawyers, law-trained readers, and highly literate persons can truly understand. There is a movement in the law in the United States and many other nations called the visualization of law movement that attempts to bridge these gaps in contractual communication by using highly visual instruments. In appropriate circumstances, even cartoons and comic book forms of sequential narrative have been used to communicate contract terms to all parties, but particularly to contractors who are illiterate or lessthan-fully literate in the language of the instrument. The goal of this Article is to apply the lens of visual legal rhetoric and visual literacy to the current visualization movement in Proactive Law and Legal Design in their efforts to promote visual, non-verbal communication in contracts through cartoon, comic book, and highly pictorial legal instruments. The lens will be applied to evaluate and critique five aspects of proactive visual legal instruments: • Immediate Visual Context • Immediate Verbal Context • Visual Cultural Context • Mise en Scène and Arrangement • Visual Rhetoric, Ethics and Professionalism This Article analyzes whether highly visual contracts and legal instruments fulfill the potential for greater access to and understanding of contract terms particularly with audiences whose language skills and cultural experience might make the comprehension and acceptance of purely verbal contracts more difficult. When visuals can overcome barriers in communication that words alone cannot, contracts and other legal instruments can be made more universal in their application, interpretation, performance, and enforcement. PubDate: Wed, 30 Jun 2021 12:22:26 PDT
Authors:Dr. Alexander Updegrove Abstract: Although in 1989 the Supreme Court of the United States initially held that the Eighth Amendment did not prohibit executing persons with intellectual disabilities in Penry v. Lynaugh, in 2002 it subsequently reversed this decision in Atkins v. Virginia, citing changing state legislation. Since the Atkins decision, state courts have interpreted the Court’s Atkins provisions in a variety of ways, some more faithfully than others. As a result, the Court provided additional clarification in its 2014 and 2015 Hall v. Florida and Brumfield v. Cain decisions, ruling that states must apply a Standard Error of Measurement of +5/-5 to all capital defendant IQ test scores. Despite this requirement, some state courts still delivered opinions contrary to the Court’s Atkins and Hall holdings, prompting the Court to offer yet more guidance in 2017. In Moore v. Texas I, the Court established that states must evaluate intellectual disabilities in capital defendants according to current medical standards, which include: (1) using the diagnostic criteria outlined in the DSM-5 or AAIDD-11; (2) focusing on adaptive deficits, not strengths; and (3) prohibiting determinations of intellectual disability from being based on functioning in prison. In 2019 the Court determined in Moore v. Texas II that the analysis undertaken by the Texas Court of Criminal Appeals continued to offend Court precedent. Given the long history of some state courts disregarding clear holdings of the Supreme Court, this Article examines how state courts have interpreted Moore I and Moore II. PubDate: Wed, 30 Jun 2021 12:22:25 PDT
Authors:Gregory J. O'Neill Abstract: It is a tragic irony that a nation with enormous wealth will not provide the most basic of education rights to its citizens. Despite continual judicial and legislative measures to ensure access to education, or a facsimile thereof, no judicial or legislative body has taken the step to ensure that literacy is a fundamental right for the citizens of the United States. The issue has been, and continues to be, presented to both Congress and the courts. While Congress has passed legislation to some degree, both institutions have largely failed to ensure the population receives the fundamental right of literacy. There is not much pushback to the argument that education and literacy are important. But questions remain: How much education is necessary to claim that literacy is a right' Is literacy important enough to shine brightly on the national consciousness' PubDate: Thu, 01 Oct 2020 20:18:54 PDT
Authors:Shareefah Taylor Abstract: Due to technological advances and the rise in popularity of plant-based meat alternatives (i.e., Beyond Meat, the Impossible Burger, etc.), nearly thirty states have proposed or enacted legislation to limit which foods can be labeled with terms that have traditionally been used to describe products derived from animal carcasses (i.e., meat, burger, sausage, etc.). Fueled in many places by the cattle industry, the states’ legislation proposes stricter guidelines than the federal counterparts in an attempt to specifically prohibit plant-based, cell-based (lab-grown meat), and even insect-based products from being labeled in meat-associated terms. To date, lawsuits have been filed by opponents to the enacted laws in three states (Missouri, Arkansas, and Mississippi), challenging the laws as unconstitutional on First and Fourteenth Amendment grounds. All lawsuits are currently pending at the time of this writing. This Note will use the recent litigation regarding the “dairy wars” (i.e., lawsuits regarding laws that limit almond/soy/non-dairy beverages use of the term “milk”) as a parallel comparison to the “meat wars,” and proposes a potential resolution to the labeling of plant-based meat alternatives dispute that allows those products to continue using meat-related terms by amending federal guidelines. PubDate: Thu, 01 Oct 2020 20:18:51 PDT
Authors:Charles W. Collier Abstract: This Article is set amidst the distinctly unsettled and unsettling state of governmental practices, legislative policy, and presidential politics of contemporary America. Immediacy, too, introduces its own uncertainty—as compared to the comfortable vantage point of the distant future. But, as I shall argue, there is no realistic alternative to beginning in medias res. To address these issues as they inherently demand, the usual precedents and protocols and precautions must be set aside—if they are not already “gone with the wind.”6 Since the 2016 Presidential Election, and even before, threats to liberal democracy have emerged, in plausible form, as never before inAmerican history. This is largely a tale about the parlous state of “unwritten rules” in a thoroughly politicized polity. Part I traces out two of the most important stages in this development. Liberal democracy depends not only on governmental institutions and officials but, indirectly, on the personal qualities those officials bring to their duties and responsibilities. Nowhere is this more important than at the top of the Executive Branch of government, where personality disorders of the President may take on constitutional significance. “Crazytown”—as it has been called—is thus the subject of Part II.7 Finally, Part III considers the roles of both “Input Controls” and “Output Controls” in protecting liberal democracy against the threat of authoritarian tyranny. For purposes of discussion, a proposed constitutional amendment is introduced and defended. This is an important intellectual exercise, for “without the constant effort to repair and construct liberal institutions of government . . . it is only a matter of time before one or another zealot will seize the chance to impose his private nightmare on the rest of us.” PubDate: Thu, 01 Oct 2020 20:18:48 PDT
Authors:Garry A. Gabison Abstract: This Article investigates the impact of the Kirtsaeng decision. After discussing the first sale doctrine, this Article presents the issues around implementing a worldwide first sale doctrine. International treaties attempt to ensure that authors can benefit from their work by affording them similar protections in different jurisdictions. But a worldwide first sale exhaustion limits the ability of copyright holders to profit from their work because it allows the author to compete with its own work that had been priced differently in different jurisdictions. Finally, this Article tests whether, in the United States, the price of textbooks has been affected by the Kirtsaeng decision and finds that the price of textbooks increased between 2001 and 2018 but not more rapidly or slowly after the decision. In other words, the decision may not have had any effect (yet). PubDate: Thu, 01 Oct 2020 20:18:44 PDT
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