Feldman on the Subconscious in IP Law

Robin Feldman has published an article called "The Role of the Subconscious in Intellectual Property Law," 2 Sci. & Tech. L. J. 2 (2010). Here is the abstract:

Human behavior stems from a fascinating tangle of conscious and subconscious impulses. While we are often quite aware of what we are doing and how we have come to do it, such is not always the case. Various human drives can lead us, for example, to be perfectly convinced that our actions are appropriate or that our motives are pure, despite considerable evidence to the contrary.

The human mind is particular important in the realm of intellectual property. The stuff of intellectual property, that which we choose to protect, flows from processes of the human mind as it interacts with the natural world and with creations that have come before. Without knowing any more, one might imagine that subconscious processes of the human mind could come to play a role in the unfolding doctrines.

This piece will consider how Intellectual Property law handles subconscious impulses on the part of participants in the system. Looking at examples from Copyright, Trade Secret, and Patent law, the piece argues that although such impulses may be treated differently in different areas of Intellectual Propety law, the variations can be understood in the context of the moral stance adopted in the doctrinal area. Where the connection between the moral stance of the doctrine and the approach taken by the doctrine is muddled, it may signal a doctrine in disarray. As an example, the piece analyzes the doctrine of Inequitable Conduct in patent law, concluding that this area of law has lost its bearings.

Lefstin on Origins of the Clear and Convincing Standard in Patent Law

Jeff Lefstin has posted an article on the leading patent blog, Patently-O, on the origins of the clear and convincing standard. Here's the link: http://www.patentlyo.com/patent/2010/10/guest-post-origins-of-the-clear-and-convincing-standard.html

Aviram on California's Death Penalty

Hadar Aviram has published an op-ed in the Friday, Oct. 1, San Francisco Daily Journal, titled, "California's Death Penalty Is A Farce." The article uses the recent procedural wrangling around the now-postponed execution of Albert Brown as a point of departure.

Bazelon on Evidentiary Standard for DNA-Based Innocence Claims

Lara Bazelon has published an article titled, "West Memphis 3's California Connection," in the Monday, October 4, 2010, issue of The Recorder. The article explores the cutting-edge issue of what quantum of evidence is necessary for prisoners to establish an entitlement to new trials based on DNA evidence that is exculpatory, but less than conclusive.

Keitner on Corporate Liability Under the Alien Tort Statute

Chimene Keitner has published an article in The American Society of International Law Insights, Vol. 14, Issue 30, titled, "Kiobel v. Royal Dutch Petroleum: Another Round in the Fight over Corporate Liability Under the Alien Tort Statute." Here's the link: http://www.asil.org/insights.cfm, then scroll down to Chimene's article.

Bisharat on a One-State Solution

George Bisharat has published an op-ed in the Friday, September 3, edition of the Washington Post entitled, "Israel and Palestine: A True One-State Solution." Here is the link: http://www.washingtonpost.com/wp-dyn/content/article/2010/09/02/AR2010090204665.html

Wu on the History of Birthright Citizenship

Frank Wu has published an op-ed piece in The Recorder titled, "A Historic Right to Birthright Citizenship" (Sept. 3, 2010). The article reminds contemporary lawyers that a powerful legal argument based on principle managed to persuade a racially unsympathetic Supreme Court to uphold the citizenship of Wong Kim Ark, the American-born son of Chinese citizens.

Carrillo on Remedies for Interference with Home Equity

Jo Carrillo has just published an article titled, "Conversion as a Remedy for Interference with Home Equity," 29 Banking & Financial Services Policy Report 5 (Sept. 2010). The article is a preliminary inquiry into whether (intangible) financial interests -- specifically, home equity -- fall within the scope of personal property protected by the tort of conversion.

Hazard on Preemption in Products Liability Law

Geoff Hazard has published an article called "Quasi-Preemption: Nervous Breakdown in Our Constitutional System," 84 Tulane L. Rev. 1143 (2010). Geoff points to the hodgepodge of Supreme Court decisions on preemption with respect to drugs and medical devices and calls out Congress and the agencies for failing to think more deeply about preemption. Here's an excerpt:

The result, evident from the prevailing pattern, is: Let the courts work it out ad hoc. That resolution is often resorted to by the courts themselves, including the Supreme Court, in decisions that often appear merely ad hoc. Dealing more efficiently and effectively with problems of federal preemption would be expensive and would require much more attention and self-discipline on the part of Congress, the Executive, and the agencies.

Leib, et al., Respond to Comments on Family Ties

Ethan Leib and his co-authors of Privilege or Punish: Criminal Justice and the Challenge of Family Ties (Oxford 2009) have responded to comments on their work by a number of other academics. The response appears in the Yale Law Journal, and the link is here:

http://www.yalelawjournal.org/the-yale-law-journal/content-pages/rethinking-criminal-law-and-family-status/

Leib on Kagan and Statutory Interpretation

Ethan Leib and Michael Serota have published an op-ed in the June 30, USA Today titled, "Don't Focus Solely on the Constitution." They argue that as much or more of would-be Justice Kagan's time would be spent on interpreting statutes as on constitutional questions. The link is here: http://www.usatoday.com/news/opinion/forum/2010-07-01-leib30_ST_N.htm

Marcus on American Exceptionalism in Procedure

Rick Marcus has published an article titled, "Exceptionalism and Convergence: Form versus Content and Categorical Views of Procedure," 49 Sup. Ct. L. Rev. (2d series) 521 (2010). Rick does not see much evidence to support the growing belief that American and European systems of procedure are converging:

"Although there has surely been convergence in some matters of form -- a good example of which would probably be judicial management of litigation -- it is much less clear that the content of this convergence is really significant. What is clear is that the seeming convergence that has resulted from changes to some non-American legal systems -- such as the introduction of something like discovery in Japan or Germany -- depends on provisions that are so different in content from the American version that they are insignificant as evidence of meaningful convergence. Perhaps the American embrace of private enforcement of law, which began in the mid-20th century, will fade in the 21st. For the present, however, although American procedure may be closer to that of the rest of the world than it was a generation ago, it is not much closer."

Dodge and Keitner on The Aftermath of Samantar

Bill Dodge and Chimene Keitner have both taken to the blogosphere to discuss the aftermath of Tuesday's decision in Samantar v. Yousuf, in which the Supreme Court held that claims of official immunity are not governed by the Foreign Sovereign Immunities Act (FSIA). Both Bill and Chimene had advocated that position in separate amicus briefs.

Their blog posts are here:

http://opiniojuris.org/2010/06/02/samantar-insta-symposium-recognizing-personal-responsibility/

http://opiniojuris.org/2010/06/02/samantar-insta-symposium-what-samantar-doesn%e2%80%99t-decide/

Mart on Human Indexing Versus Computer Algorithms

Susan Mart has published an article called "The Relevance of Results Generated by Human Indexing and Computer Algorithms: A Study of West's Headnotes and Key Numbers and LexisNexis's Headnotes and Topics," 102 Law Library Journal 221 (Spring 2010). Here's the abstract:

This article begins the investigation into the different ways results are generated in West's "Custom Digest" and in LexisNexis's "Search by Topic or Headnote" and by KeyCite and Shepard's. The author took ten pairs of matching headnotes from important federal and California cases and reviewed the results sets generated by each classification and citator system for relevance. The differences in the results sets for classification systems and for citator systems raise interesting issues about the efficiency and comprehensiveness of any one system, and the need to adjust research strategies accordingly.

Little on Justice Stevens

Rory Little has just posted an essay on ScotusBlog as part of a tribute to the departing Justice John Paul Stevens. Rory's essay focuses on Justice Stevens' commitment to prosecutorial ethics. Here's the link: http://www.scotusblog.com/2010/05/justice-stevens%e2%80%99-commitment-to-prosecutorial-ethics/#more-19819