The Value of the Standard
By Norman V. Siebrasse & Thomas F. Cotter. Full text here. Standard-setting organizations (SSOs) often require member firms to license their standard-essential patents (SEPs) on undefined “fair, reasonable, and nondiscriminatory” (FRAND) terms. Courts and commentators in turn have proposed various principles for calculating FRAND royalties, among them that the royalty should not reflect “the value of…
Continue ReadingThe Substantially Impaired Sex: Uncovering the Gendered Nature of Disability Discrimination
By Jennifer Bennett Shinall. Full text here. The Americans with Disabilities Act (ADA) of 1990 was a landmark piece of legislation that prohibited private-sector employers from discriminating against qualified disabled workers. Although the Act is over a quarter-century old, legal scholars have never considered whether it has been uniformly efficacious—that is, whether the Act has served…
Continue ReadingCracking the Code: An Empirical Analysis of Consumer Bankruptcy Outcomes
By Sara S. Greene, Parina Patel & Katherine Porter. Full text here. Chapter 13 is a cornerstone of the bankruptcy system. Its legal requirements strike a balance between the rehabilitation of debtors through keeping assets and reducing debt, and the repayment of creditors over a period of years. Despite the accolades from policymakers, the hard truth…
Continue ReadingThe Death of the Firm
By June Carbone & Nancy Levit. Full text here. This Article maintains that the decision in Burwell v. Hobby Lobby, which referred to the corporation as a legal fiction designed to serve the interests of the people behind it, signals the “death of the firm” as a unit of legal analysis in which business entities are…
Continue ReadingMisclassification and Antidiscrimination: An Empirical Analysis
By Charlotte S. Alexander. Full text here. This Article investigates misclassification and antidiscrimination. Misclassification is employers’ practice of classifying workers as independent contractors whom the law would categorize as employees. Misclassified workers are exempt from most federal antidiscrimination statutes, unless they file a discrimination lawsuit and seek reclassification by the court for purposes of the litigation.…
Continue ReadingNote: Big Enough To Matter: Whether Statistical Significance or Practical Significance Should Be the Test for Title VII Disparate Impact Claims
By Elliot Ko. Full text here. Title VII of the Civil Rights Act of 1964 prohibits employers from intentionally discriminating against employees because of their race or gender. It also prohibits employers from adopting even facially-neutral employment practices that have a “disparate impact” on women or racial minorities. But what exactly is a “disparate impact”? Does…
Continue ReadingNote: Of Mosquitoes, Adolescents, and Reproductive Rights: Public Health and Reproductive Risks in a Genomic Age
By Luke Haqq. Full text here. The massive increase of microcephalic infants in recent years as a result of the pandemic spread of Zika virus has reinvigorated public responses to birth defect risks. However, the possibility of fetal abnormalities attends every pregnancy, yet public tools have not been efficiently leveraged to respond to this reality. This…
Continue ReadingNote: Payments on Debt After Discharge: When a Discharge Is Not Really a Discharge and the Limits of Taxpayer Recourse
By Robert C. Gallup. Full text here. Where the Tax Code and the collections industry collide, unique tax situations arise which leave taxpayers with little recourse. Creditors are required to “discharge” debt for tax purposes at specific times governed by Treasury Regulations, but they are still very much interested in and able to collect the debt.…
Continue ReadingInherent National Sovereignty Constitutionalism: An Original Understanding of the U.S. Constitution
By Robert J. Kaczorowski. Full text here. This Article is an original work of scholarship in several respects. As the title suggests, it presents a novel interpretation of the “original understanding” of the Constitution, which I call the inherent national sovereignty theory. This theory viewed the national government as a sovereign government and Congress as a…
Continue ReadingReproduction Reconceived
By Courtney Megan Cahill. Full text here. In many states, the only thing that separates a dad from a sperm donor is sex. Under federal law, sperm donations between sexually intimate partners undergoing artificial insemination are exempt from the mandatory—and expensive—testing requirements that apply to sperm donations between persons who are not sexually intimate. And according…
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