43674 research outputs found
Sort by
Juvenile Miranda Waivers: A Reasonable Alternative to the Totality of the Circumstances Approach
Get PDFA Growing Consensus: State Sponsorship of Confederate Symbols is an Injury-in-Fact as a Result of Dylann Roof’s Killing Blacks in Church at a Bible Study
Get PDFPatent Pacifism
Get PDFOver the last decade, much of the patent law literature has focused on the problem of “patent trolls,” or patent owners who don’t make products, but sue others that do. The basic complaint against these types of entities is that they impose a tax on innovation without providing offsetting societal benefits. Furthermore, their patent assertions have been on the rise, with a significant percentage of patent suits now attributable to them. In short, the troll phenomenon suggests a problem of excessive patent assertions.But despite the importance of the troll phenomenon, the fact remains that most patents are never asserted, or are asserted less than they could be. Under-assertion of patents thus appears to be more prevalent than over-assertion. Yet, beyond noting a set of generic economic considerations that may lead to this outcome, the literature fails to provide systematic, industry-specific assessments of why patent owners choose to forego asserting their rights in so many cases. And the generic nature of these assessments is particularly problematic given that patents play significantly different roles from one industry to the next, as scholars have noted for some time.This Article addresses these issues by providing an industry-specific, informal model for theorizing why patent owners forego asserting their rights in so many cases (and why they may not in others). It briefly applies this model to four industries: software, pharmaceuticals, biotechnology, and semiconductors. The Article then explores some potential implications of this industry-specific model. In particular, this Article suggests that high barriers to patent assertion in an industry may, ironically, result in increased patent trolling in the industry. Hence, this Article provides guidance to policymakers by helping explain the rise of patent assertions in some industries, such as software, as well as helping to identify other industries, such as biotechnology, that may be increasingly at risk of patent trolling
The Original Meaning of “religion” in the First Amendment: A Test Case of Originalism’s Utilization of Corpus Linguistics
Get PDFOriginalism is the theory of constitutional interpretation that identifies the constitutional text’s public meaning when it was ratified as its authoritative meaning. Corpus linguistics is the study of word-use regularities and patterns, primarily in written texts. In a prior article, I argued that originalists should utilize corpus linguistics to facilitate originalism’s capacity to accurately uncover this original meaning. However, my arguments there were theoretical; this Essay provides a “test case” of corpus linguistics’ capacity to increase originalism’s methodological accuracy. This Essay accomplishes three modest goals. First, it provides a practical example of the application of corpus linguistics to originalism. This affords a first-cut illustration of the extent to which corpus linguistics can make originalism’s methodology more rigorous. Second, this Essay utilizes the tools of corpus linguistics to provide additional evidence of the original meaning of “religion” in the First Amendment. Third, based on this experience, it describes some of the challenges originalist scholars will likely face employing corpus linguistics
Evidence-Based Jurisprudence Meets Legal Linguistics—Unlikely Blends Made in Germany
Get PDFGerman legal thinking is renowned for its hair-splittingly sophisticated dogmatism. Yet, some of its other contributions to research are frequently overlooked, both at home and abroad. Two such secondary streams recently coalesced into a new corpus-based research approach to legal practice: Empirical legal research (which had already developed in Germany by 1913) and research on language and law (following German pragmatist philosopher Ludwig Wittgenstein’s work of 1953). This Article introduces both research traditions in their current German incarnations (Evidence-Based Jurisprudence and Legal Linguistics) and shows how three common features—their pragmatist observation of social practices, their interest in dissecting legal authority, and their big data strategy—inspired a new, corpus-based research agenda, Computer Assisted Legal Linguistics (CAL²)
A Muslim Registry: The Precursor to Internment?
Get PDFBeing political scapegoats in the indefinite “war on terror” is the new normal for Muslims in America. With each federal election cycle or terrorist attack in a Western country comes a spike in islamophobia. Candidates peddle tropes of Muslims as terrorists in campaign materials and political speeches to solicit votes. Government officials call for bold measures—extreme vetting, categorical bans, and mass deportations—to regulate and exclude Muslim bodies from U.S. soil. The racial subtext is that Muslims in the United States are outsiders who do not belong to the political community. A case in point is the “Muslim ban” issued by the Trump administration in 2017. As the ban dominated public debate and litigation, another racialized counterterrorism policy lurked in the backdrop: a Muslim registry. This Article explores the political and legal plausibility of a de jure or de facto Muslim registry. Analyzing separately the case of nonimmigrants, immigrants, and U.S. citizens, the Article concludes that proponents of a nonimmigrant special registration program based on national origin will find support in the law. A registry of immigrants is also possible, though much will depend on whether courts will look to the islamophobic political environment arising from Trump and his advisor’s anti-Muslim statements to apply strict scrutiny; or whether courts will accept facially neutral national security justifications to apply the rational basis test that nearly guarantees the government’s victory. In contrast, a registry of U.S. citizen Muslims is unlikely to pass constitutional muster, as is a special registration program explicitly based on religion. Separate from the dignitary harms and privacy concerns arising from a Muslim registry are threats to the liberty of millions of people in America. A Muslim registry could very well be the precursor to mass internment should another major terrorist attack occur on U.S. soil. For that reason alone, proponents of civil rights and liberties should be prepared to oppose what is no longer unimaginable
Clark Memorandum: Spring 2017
Get PDFClark Memorandum: Spring 2017 A Graduate Program of Real Consequence Promoting Religious Freedom in a Secular Age Religious Liberty Versus Secularity Audacious Faithhttps://digitalcommons.law.byu.edu/clarkmemo_gallery/1016/thumbnail.jp
Jeramey McElhaney and Mary McElhaney, Feb - 7 2017 Appellees, v. The City of Moab and Moab City Council. Appellants.
Get PDFAppeal from the Order of the Seventh Judicial District Court, Case No. 140700048, Judge Lyle R. Anderson, Reversing the Decision of the Moab City Council to Deny a Conditional Use Permi