THAT’S WHAT HE SAID: The Office, (Homo)Sexual Harassment, and Falling Through the Cracks of Title VII

2015, Past Issues, Print, Volume 47 (2015) Issue 3 (Fall)
Sasha Andersen This article uses The Office as a platform to explore the history of Title VII and illustrate the puzzling rationale for why homosexuals fall through the cracks of Title VII and are not protected from workplace harassment. This article analyzes the way Title VII would apply to Oscar’s situation and shows how bringing a seemingly clear-cut case of sexual harassment would be unsuccessful despite common-sense perceptions of the law. In exposing the way Title VII law is inconsistent with common sense, this article has two objectives. First, it probes the history of Title VII jurisprudence and demonstrates that homosexuals have no recourse under Title VII—that is, unless they act “gay” enough or the harasser is actually homosexual. Understanding this reality exposes a more problematic logic in Title VII…
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Patent Markets: A Framework for Evaluation

2015, Past Issues, Print, Volume 47 (2015) Issue 3 (Fall)
Michael J. Burstein Patents have become financial assets. They are valued like securities, traded like stocks, and modeled as options. Our discourse about patents increasingly draws from finance. Firms whose business models depend on patent assertion explain that they are providing “liquidity” to the patent market. Those on the other side, which engage in collective defense, talk about using the market to mitigate “patent risk.” Commentators who ordinarily take very different positions about the merits of our current patent system seem to agree that we should make patent markets more efficient. But neither they nor most others ask the logically prior question: should there be robust patent markets at all? This Essay provides a roadmap for answering that question. Taking seriously the analogy between patent markets and financial markets, I demonstrate…
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Patent Pledges

2015, Past Issues, Print, Volume 47 (2015) Issue 3 (Fall)
Jorge L. Contreras An increasing number of firms are making public pledges to limit the enforcement of their patents. In doing so, they are entering a little-understood middle ground between the public domain and exclusive property rights. The best-known of these patent pledges are FRAND commitments, in which patent holders commit to license their patents to manufacturers of standardized products on terms that are “fair, reasonable and non-discriminatory.” But patent pledges have been appearing in settings well beyond standard-setting, including open source software, green technology and the life sciences. As a result, this increasingly prevalent private ordering mechanism is beginning to reshape the role and function of patents in the economy. Despite their proliferation, little scholarship has explored the phenomenon of patent pledges beyond FRAND commitments and standard-setting. This article…
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Against Design

2015, Past Issues, Print, Volume 47 (2015) Issue 3 (Fall)
Caryn Devins, Roger Koppl, Stuart Kauffman, and Teppo Felin Institutions and the incentives they create can be designed or redesigned to produce desired outcomes. But design does not work if social and economic dynamics are “creative.” If it is impossible to know in advance how an institution will change behavior and incentives—and what interests it may serve or harm in the future—then it is impossible to “design” optimal institutions. Like organisms, institutions are adaptive functional wholes that change in unpredictable and unprestateable ways. We examine the history of interpretations of the United States Constitution to illustrate the unpredictable and unprestateable dynamics of institutional change. We highlight how innovative interpretations of the Commerce Clause crafted in the civil rights context of the 1960s provided legal support to the Controlled Substances Act of 1970, which…
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Tilting at Windmills: Finding an Alternative Dormant Commerce Clause Framework to Preserve Renewable Portfolio Standard Generator Location Requirements

2015, Past Issues, Print, Volume 47 (2015) Issue 3 (Fall)
Danny Englese As our world becomes ever more connected, with a boundless supply of information and products from all over the world readily accessible through the click of a button, consumers are becoming more motivated than ever to spend their money at locally-owned businesses. This “localist” movement is supported by various local organizations around the country, whose memberships are steadily increasing. The localist movement has been particularly visible in Arizona. For instance, Local First Arizona, “a statewide non-profit organization working to strengthen communities and local economies through growing, supporting, and celebrating locally owned businesses throughout the state,” has over 2,000 members in industries ranging from food service to banking and finance. There is growing evidence that spending at local businesses has a significant economic impact. According to one study, for…
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Big Conflicts Little Conflicts

2015, Past Issues, Print, Volume 47 (2015) Issue 3 (Fall)
Katherine Florey Choice-of-law doctrine today increasingly presents two distinct faces. When it comes to garden-variety tort and contract cases, conflicts doctrine often produces uncontroversial results with surprisingly little drama. In more complicated litigation, however, the picture is starkly different. It is fair to say that choice-of-law issues represent perhaps the most serious obstacle to consolidating complex cases. Further, conflicts issues even in simpler cases have proven deeply problematic when they implicate not just the interests of individuals, but larger questions about the proper allocation of state power. What accounts for the divergent performance of conflicts doctrine in, on the one hand, small-scale litigation and, on the other, litigation that affects more people or raises broader policy concerns? This Article argues that domestic U.S. choice-of-law doctrines serve two distinct functions, and…
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Google Glass While Driving

2015, Past Issues, Print, Volume 47 (2015) Issue 3 (Fall)
Adam M. Gershowitz Is it legal to use Google Glass while driving? Most states ban texting while driving and a large number also forbid drivers from being able to see television and video screens. But do these statutes apply to Google Glass? Google advises users to check their states’ law and to “[r]ead up and follow the law!” Yet, laws designed for a tangible world are very difficult to apply to virtual screens projected by futuristic wearable technology. In short order, however, police and prosecutors across the country will be called upon to apply outdated distracted driving laws to Google Glass. This article describes how the plain language of most distracted driving statutes is not broad enough to reach Google Glass. Moreover, even statutes that arguably forbid drivers from “using”…
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Justice Brandeis and Indian Country: Lessons from the Tribal Environmental Laboratory

2015, Past Issues, Print, Volume 47 (2015) Issue 3 (Fall)
Elizabeth Ann Kronk Warner Justice Brandeis first famously wrote of a system of federalism where states would serve as laboratories of regulatory experimentation, allowing other states and the federal government to benefit from successful regulatory experiments. Although likely beyond the contemplation of Brandeis, tribes, as separate sovereigns existing within the United States, are well-placed to experiment in new and interesting ways. In particular, given their unique connection to the land and the intensified threat of some modern environmental challenges, many tribes are already engaged in regulatory innovation related to environmental law. This is the first scholarly work to fully develop the idea of tribes as “laboratories” for examining environmental law, demonstrating that tribal experimentation can generate the same benefits typically ascribed to the system of federalism. This is also the…
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Economic Conundrums in Search of a Solution: The Functions of Third-Party Litigation Finance

2015, Past Issues, Print, Volume 47 (2015) Issue 3 (Fall)
Joanna M. Shepherd & Judd E. Stone II Despite a rapid increase in economic significance and substantial increase in international use, third-party litigation financing remains poorly understood. No academic consensus takes account of the multiple economic conundrums that third-party litigation financing arises to solve, nor do legal scholars adequately consider obvious public and private substitutes for litigation financing that society rightfully recognizes as innocuous or outright beneficial. In this Article, we explore the economic challenges driving both business plaintiffs and sophisticated law firms to seek external litigation financing. We examine closely the key elements of the litigation financing arrangement itself, focusing on eligible cases and clients, devices financiers employ to ensure repayment without meaningful control over the litigation, and theorize conditions under which third-party litigation financing will be attractive to companies…
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Time to Reboot?: DMCA 2.0

2015, Past Issues, Print, Volume 47 (2015) Issue 3 (Fall)
Donald P. Harris Imagine this scenario. Mary Saint Francis was a longtime librarian of limited means. She had always dreamed of becoming a successful writer and living the way “the other half” lived, retiring from the library and traveling around the world. At 56, and after a number of unsuccessful and little known short stories, she was beginning to believe this would never happen. In March 2013, things changed. Mary wrote a saucy and stimulating novel about being a librarian: The Real Life of a Librarian. Surprisingly, Real Life became an instant success. Over the next year, Mary’s novel achieved critical acclaim, was the subject of Oprah’s Book of the Month, was the topic of numerous talk shows, and was discussed on various news and radio spots. Mary also traveled…
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