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The Institutional Mismatch of State Civil Courts
Get PDFState civil courts are central institutions in American democracy. Though designed for dispute resolution, these courts function as emergency rooms for social needs in the face of the failure of the legislative and executive branches to disrupt or mitigate inequality. We reconsider national case data to analyze the presence of social needs in state civil cases. We then use original data from courtroom observation and interviews to theorize how state civil courts grapple with the mismatch between the social needs people bring to these courts and their institutional design. This institutional mismatch leads to two roles of state civil courts that are in tension. First, state civil courts can function as violent actors. Second, they have become unseen, collective policymakers in our democracy. This mismatch and the roles that result should spur us to reimagine state civil courts as institutions. Such institutional change requires broad mobilization toward meeting people’s social needs across the branches of government and thus rightsizing state civil courts’ democratic role
If You Grant It, They Will Come: The History and Enduring Legal Legacy of Migratory Divorce
Get PDFFifty years ago, California became the first state to enact no-fault divorce, making it easier than ever before for individuals to dissolve unsuccessful marriages. Soon, every state would follow suit, and over the years, much has been written about this national shift in the law of divorce. What has thus far escaped scrutiny, however, is one of the prime casualties of that switch—the phenomenon of migratory divorce. This failure is somewhat ironic given that, although no-fault divorce has existed for just over fifty years, migratory divorce played a prominent role in American legal history for well over a century. Migratory divorce is the process through which people who lived in states where a divorce was difficult to obtain would temporarily relocate to another state—one with more liberal divorce laws—in order to satisfy that state’s domicile requirement to obtain a divorce there. Divorce in hand, those people typically returned home to continue life as unmarried persons. Many states, however, opposed recognizing such divorces, giving rise to multiple Supreme Court opinions dealing with when a state is constitutionally required to recognize such a decree. Contemporaneous with that debate, a large number of Americans fiercely opposed the practice of migratory divorce altogether, fearing the impact it would have on the sanctity of marriage. As a result, there were several proposals over the years for dealing with this “problem,” primarily involving constitutional amendments and uniform laws. In light of this history, it is the position of this Article that the era of migratory divorce offers an invaluable resource for those studying not only the development but also the continuing evolution of American family law. Accordingly, this Article chronicles that legal phenomenon, offering a detailed analysis of the various social, legal, and political influences that ultimately shaped this unique time in American history. The purpose in doing so is, first, to ensure that this fascinating period in American history is not forgotten, but more important, to distill the legal lessons produced by this era—lessons that are highly instructive to contemporary scholars, courts, and policymakers alike as they continue to wrestle with the emerging problems facing the law of domestic relations
\u27In the Public Interest\u27 - University Technology Transfer and the Nine Points Document – An Empirical Assessment
Get PDFIn 2007, eleven major U.S. research universities and the Association of American Medical Colleges signed an accord titled “In the Public Interest: Nine Points to Consider in Licensing University Technology.” It outlined a range of issues that universities should consider when licensing their technology to the private sector - from reservations of rights and limitations on exclusivity to refraining from dealing with patent assertion entities to making medical technologies accessible at affordable prices. More than talking points, the document proposed specific contractual clauses intended to promote the educational and public welfare missions of universities. Today, more than one hundred academic institutions and associations around the world have signed the Nine Points document. Yet in the fourteen years since the document was created, there has been no systematic, empirical assessment of its effect on university licensing practices. This article fills that gap with the first empirical study of the effect of the Nine Points document on university licensing practices. Through a review of 220 publicly available university patent licenses signed both before and after the adoption of the Nine Points document, this article finds that while the document prompted the expansion of educational and non-profit research using patented university technology, it resulted in few changes relating to the promotion of public health or access to medical technologies. This mixed adoption of the recommendations made by the Nine Points document suggests that there is little consensus regarding the nature of the public interest that the Nine Points document sought to promote. To address the renewed public focus on public health brought about by the Covid-19 pandemic, this article suggests that a reorientation of university technology transfer policy may be in order – one that could be facilitated through greater engagement of academic faculty, senior administrators, students, alumni and other institutional stakeholders in setting policy for university technology transfer
Information as Power: Democratizing Environmental Data
Get PDFEnvironmental data systems have largely escaped scrutiny in the past decades. But these systems are the foundations for evaluating environmental priorities, making management decisions, and deciding which perspectives to value. Information is the foundation of effective regulation. The decisions regulators make about gathering, assimilating, and sharing information are, in many cases, determinative of the outcomes they reach. This is certainly true in the case of the environment.
This paper looks at how current environmental regulation has created data systems that undermine scientific legitimacy and systematically prevent stakeholder participation in environmental decision-making. These data systems concentrate power within federal and state agencies that are often ill-equipped to use this data effectively. New calls to open environmental data have the potential to shift these norms, but they will not be successful without fundamental restructuring in the regulatory treatment of environmental data. This paper uses fisheries management as a case study to expose how outdated data perceptions and architectures are at the root of many current environmental management failures. Technological innovation is challenging many of these norms, creating opportunities for better management that can only be achieved if agencies fundamentally rethink environmental data management. I argue that federal agencies can support better regulatory outcomes by creating Environmental Data Offices and open data systems
Mindful Lawyering: a Pilot Study on Mindfulness Training for Law Students
Get PDFMany US law schools are now offering elective courses in mindfulness training to alleviate disproportionately high levels of anxiety, depression, stress, and disordered alcohol use among law students. To date, empirical evidence on the effectiveness of these courses has been lacking. The aim of this pilot study was to explore the feasibility and impact of a 13-week mindfulness course, Mindful Lawyering, specifically tailored to law students. The primary hypothesis was that mindfulness training would be significantly correlated with improvements in well-being and mindfulness
Sidelined Again: How the Government Abandoned Working Women Amidst a Global Pandemic
Get PDFAmong the weaknesses within American society exposed by the COVID pandemic, almost none has emerged more starkly than the government’s failure to provide meaningful and affordable childcare to working families—and, in particular, to working women. As the pandemic unfolded in the spring of 2020, state and local governments shuttered schools and daycare facilities and directed nannies and other babysitters to “stay at home.” Women quickly found themselves filling this domestic void, providing the overwhelming majority of childcare, educational support for their children, and management of household duties, often to the detriment of their careers. As of March 2021, more than 5 million American women had lost their jobs, with 2.3 million women no longer even looking for work. Countless other women continue to struggle with the unsustainable demands of performing their paid jobs while simultaneously providing close to full-time domestic services at home. On all of these metrics, women of color have found themselves even more acutely affected.
Importantly, this need not have been the case: With a reasonable amount of planning and expense, federal, state, and local governmental resources could have been mobilized to create a solution to this crisis. By establishing and providing funding for “learning pods” throughout the country, the government could have served the needs of countless working families (especially working mothers) by filling this childcare void, while also providing employment assistance to a host of other workers who lost their jobs during the pandemic. In fact, the government could have turned to its own experience—providing childcare to working mothers during World War II and continuing to operate high-quality and affordable childcare for military families today—to deliver this type of childcare assistance to all families currently in need. In declining to do so, the government not only has exacerbated the COVID crisis for innumerable working families, but also has further relegated women to the professional sidelines—a decision destined to have immeasurable and long-term consequences for millions of working women, for the organizations that employ them, and for society as a whole
Antiracist Lawyering in Practice Begins with the Practice of Teaching and Learning Antiracism in Law School
Get PDFI was honored by the invitation to deliver the 2021 Lee E. Teitelbaum keynote address. Dean Teitelbaum was a gentleman and a titan for justice. I am confident the antiracism work ongoing at the S.J. Quinney College of Law would have deeply resonated with him, especially knowing the challenges we are currently facing within and outside of legal education, the legal academy, and the legal profession. I am fortified in this work by Dean Elizabeth Kronk Warner’s commitment to antiracism and associated diversity, equity, and inclusion work. Finally, I applaud the students who serve on the Utah Law Review for their vigilance in using the power of scholarship, convening, and discourse to generate knowledge and inspire action that will be meaningful to our teaching and learning communities as we tackle the perennial issue of systemic racial inequality and intersectional injustice.
This Essay is a call to action for legal education, the legal academy, and the legal profession in America to address the complicity of law and legal systems in scaffolding systemic racial inequality and intersectional injustice. The focus on legal education, the legal academy, and the legal profession is necessary for two reasons: first, throughout history, the law has been used to design a system that has and continues to advantage some and to oppress others in American society; and second, the special duty of those within the legal profession is to use the law as a tool to promote democracy and democratic ideals, not to diminish or dismantle them. As such, this Essay proposes the use of antiracism in teaching, learning, and practice to acknowledge the persistence of systemic racial inequality and intersectional injustice, to become competent in using pedagogy and practice to prepare methods of resisting systemic racial inequality and intersectional injustice, and to act to embed antiracism into our democratic institutions to promote system equity
U.S. v. Clinesmith: Amicus Brief in Support of Motion for Relief Under The Crime Victims\u27 Rights Act
Get PDFThis amicus brief was filed in the U.S. District Court for the District of Columbia in support of Dr. Carter Page’s motion to be recognized as a “victim” under the Crime Victims’ Rights Act (CVRA) in U.S. v. Clinesmith. The brief discusses the important issue who qualifies as a “victim” for purposes of obtaining CVRA protections and concludes that Dr. Page is a “victim” in the case.In the underlying criminal case, Page argues that he is a “victim” of Clinesmith’s false statement, made in connection with FISA warrant renewal application by the Government to surveil Dr. Page’s communications. The amicus brief provides background on the CVRA’s expansive protections, which cover any individual who is “directly and proximately harmed” as the result of a crime. In this case, because Clinesmith’s false statement subverted the FISA process by providing false information to the FISA Court, the false statement alone created sufficient harm to trigger CVRA “victim” status.The amicus organizations on this brief are the National Crime Victim Law Institute, The National Organization for Victim Assistance, The National Center for Victims of Crime, Arizona Voice for Crime Victims, The Network for Victim Recovery of the District Of Columbia, Ohio Crime Victim Justice Center, Rocky Mountain Victim Law Center, South Carolina Victim Assistance Network, And Utah Crime Victims Legal Clinic as Amici Curiae In Support of Motion for Relief Under the Crime Victims’ Rights Ac
Ericsson INC., AND Telefonaktiebolaget LM Ericsson v. Samsung Elecs. CO, LTD., Samsung Elecs. America
Get PDFUnopposed Motion for Leave to File Brief of International Intellectual Property Law Professors as Amici Curiae in Support of Neither Part
A Framework For Evaluating Willingness Of FRAND Licensees
Get PDFAn increasing number of cases around the world turn on whether a manufacturer of a product – e.g., a smartphone, a tablet or a car -- (an “implementer”) is willing to pay a “fair, reasonable and nondiscriminatory” (FRAND) royalty for patents that are essential to an industry standard embodied in that product (standards-essential patents or SEPs). This determination is important both to the analysis of the appropriateness of an injunction under the 4-factor eBay test in the U.S., and for assessing the appropriateness of injunctive relief under the Huawei v. ZTE competition law case in the EU. This essay explores the significance of “willingness” in the FRAND context primarily from a U.S. perspective, and offers a new legal framework for evaluating an implementer’s “willingness” to accept a license on FRAND terms. In doing so, it identifies conduct that typically indicate willingness or unwillingness, as well as an intermediate range of conduct that should be viewed as indeterminate -- subject to classification only after additional conduct has been observed. It is hoped that this framework will assist courts and parties in systematically and consistently analyzing implementer behavior when disputes over FRAND terms arise