2015

Megan M. La Belle. Congress, the Executive, and the Judiciary have all had “patent litigation abuse” on their minds recently. The concern is that too many frivolous patent suits are being filed and used to extract unwarranted settlements. The story is that bad actors—patent assertion entities (PAEs) or, more pejoratively, “patent trolls”—are suing small companies and end users for patent infringement even though PAEs make no patented products themselves. Over the past two years, Congress proposed nearly a dozen bills aimed at curbing patent litigation abuse, the Executive took various anti-troll measures, and the Supreme Court decided a pair of cases that make it easier to shift fees based on patent litigation misconduct. In the meantime, federal district courts have been addressing the patent litigation situation for years through procedural…

Melissa Hamilton. A new arena inviting collaboration between the law and sciences has emerged in criminal justice. The nation’s economic struggles and its record-breaking rate of incarceration have encouraged policymakers to embrace a new penology which seeks to simultaneously curb prison populations, reduce recidivism, and improve public safety. The new penology draws upon the behavioral sciences for techniques to identify and classify individuals based on their potential future risk and for current best evidence to inform decisions on how to manage offender populations accordingly. Empirically driven practices have been utilized in many criminal justice contexts for years, yet have historically remained “a largely untapped resource” in sentencing decisions. One reason is that sentencing law in America has for some time been largely driven by retributive theories.The new penology clearly incorporates utilitarian goals and…

Patrick Luff. This article takes a new approach to evaluating regulation of tobacco in general and the regulatory impact of the tobacco litigation in particular. Rather than viewing the tobacco litigation in isolation, regulation-through-litigation as an institutional response should be compared with potential alternative institutional responses such as regulation via administrative agency or the operation of market forces. Because courts have been better at generating technocratic information and at the same time can avoid the barriers to regulation that other institutions face, courts have been and will continue to be the preferred institution for regulating the social-costs externalities of tobacco consumption. In combination with an appreciation of the main regulatory problems that tobacco presents, this conclusion suggests a reevaluation of regulatory devices such as taxation, administrative compensation systems, and liability…

Kerry Lynn Macintosh. Imagine a scientist friend invites you to visit her research laboratory. She directs you to a cage. You see a small, furry creature with round ears and a long tail crouched in one corner of the cage. Based on these visual cues you assume the creature is a mouse. You quickly draw some basic inferences: the mouse is fond of cheese, afraid of cats, and none too bright. Then your friend surprises you. She informs you that she engrafted the mouse with human brain stem cells; as a result, all the neurons in its tiny brain are of human origin. She made the mouse so she could study the function of human neurons in a living model. You ask whether the mouse thinks like a human. Your…

Sabrina Safrin. This article helps lay the foundation for a new field of international law—International Law and Technology—and opens novel avenues of inquiry in law and technology and intellectual property more broadly. It analyzes as a starting point why some technologies generate global conflicts while others do not. Technologies that face international resistance can trigger a barrage of international legal responses, ranging from trade bans and WTO disputes to international regulatory regimes and barriers to patenting. Agricultural biotechnology triggered all of these legal flashpoints, while the cellphone, a technology that grew up alongside it, triggered none. Why? Understanding when a new technology will provoke an international legal firestorm is important to policymakers, business leaders, and lawyers. International controls on a new technology constrain state sovereignty and may impede or catalyze…

Agnieszka McPeak. Social media has entered the mainstream as a go-to source for personal information about others, and many litigators have taken notice. Yet, despite the increased use of social media in informal civil discovery, little guidance exists as to the ethical duties—and limitations—that govern social media snooping. Even further, the peculiar challenges created by social media amplify ambiguities in the existing framework of ethics rules and highlight the need for additional guidance for the bench and bar. This article offers an in-depth analysis of the soundness and shortcomings of the existing legal ethics framework, including the 2013 revisions to the American Bar Association’s model rules, when dealing with novel issues surrounding informal social media discovery. It analyzes three predominant ethics issues that arise: (1) the duty to investigate facts…

Carrie A. Laliberte. This Comment examines the relationship between the National Oceanic and Atmospheric Administration’s (NOAA) newly proposed shark finning rule and existing state shark finning legislation. Specifically, the analysis concludes that the NOAA rule should not be adopted as proposed because it would effectively weaken existing state laws, which are essential to protect the environment as well as sharks. In the alternative, this Comment maintains that cooperative federalism should be employed, as it has been for environmental laws in the past, to allow for a coexistence of federal and state law. Full Article

Matthew L.M. Fletcher. Two theories of tribal government authority under federal Indian law—territory-based authority and consent-based authority—are at war. No theory is acceptable to either tribal governance advocates or their opponents. The war plays out most dramatically in conflicts over tribal authority over nonmembers. The Supreme Court’s own precedents on whether tribes may exercise civil jurisdiction over nonmembers on tribal lands are in deep conflict. Ironically, while the Court has expressed serious concerns about the ability of tribes to guarantee fundamental fairness to nonmembers in general, the Court’s common law procedure for analyzing tribal jurisdiction makes irrelevant any evidence regarding the success or failure of tribal procedural guarantees. I propose a two-part common law test that first acknowledges a presumption in favor of tribal jurisdiction on tribal lands, where tribal…

Trisha Farrow. On September 29, 2013, over ten million people viewed the series finale of AMC’s Emmy Award winning hit, Breaking Bad.1 The series followed Walter White, a high school chemistry teacher in New Mexico, and his family.2 When Walter is diagnosed with stage III lung cancer and is given less than two years to live, his desire to provide for his family after his death drives him to use his chemistry background to produce methamphetamine. By the end of the series he and his partner, Jesse Pinkman, are the largest methamphetamine producers in the southwestern United States. In the series finale, both the cancer and the police are closing in on Walter, and he is struggling to find a way to leave his methamphetamine fortune to his family without…

Reid Peyton Chambers. I want to begin by thanking my longtime friend and colleague Bob Clinton for his too generous introduction, and to Bob and the faculty at the Law School for inviting me to give this lecture in honor of Judge Canby. I also want to thank my many friends and colleagues in the audience who have sat through water rights negotiations in Arizona with me over the past two decades for coming to listen to me once again, particularly in this context where I get to talk uninterrupted for an hour and they can only speak during the question period. Lastly, I want to thank Judge Canby for several things. First, for your continuing scholarship in Indian law during your busy and long tenure on the Ninth Circuit.…