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Volume 109 - Issue 6

Note: When the Invention Is an Inventor: Revitalizing Patentable Subject Matter to Exclude Unpredictable Processes

By Peter M. Kohlhepp. Full text here. Abstract inventions continue to confound the patent system. Several recent Federal Circuit decisions have only added to the uncertainty surrounding limitations on the type of inventions that may be patented. Computer algorithms capable of independent, artificial creativity provide a useful case study, revealing weaknesses in the law governing patentable…

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The Mythical Divide Between Collateral and Direct Consequences of Criminal Convictions: Involuntary Commitment of "Sexually Violent Predators"

By Jenny Roberts. Full text here. For many people convicted of crimes, the case does not end when the sentence is over. Instead, it follows them out of the courthouse or prison doors in the guise of “collateral,” or non-penal, sanctions. The last several decades have seen unprecedented expansion in the number and severity of the…

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Horizontal Federalism

By Allan Erbsen. Full text here. This Article constructs frameworks for analyzing federalism’s undertheorized horizontal dimension.  Discussions of federalism generally focus on the hierarchical (or vertical) allocation of power between the national and state governments while overlooking the horizontal allocation of power among coequal states.  Models of federal-state relations tend to treat the fifty states as…

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Essay, Protecting Financial Markets: Lessons from the Subprime Morgage Meltdown

By Steven L. Schwarcz. Full text here. Why did the recent subprime mortgage meltdown undermine financial-market stability notwithstanding the protections provided by market norms and financial regulation? This Essay attempts to answer that question by identifying anomalies and obvious protections that failed by examining hypotheses that might explain the anomalies and failures. Although some of the…

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Note: Presuming Innocence: Expanding the Confrontation Clause Analysis to Protect Children and Defendants in Child Sexual Abuse Prosecutions

By Anna Richey-Allen. Full text here. When a child is suspected of being sexually abused, child advocacy centers provide a supportive environment where social workers, doctors, and psychologists may assess the child’s needs. Forensic interviews are a specialty of the centers. The interviews are often video recorded, and the videotape may later be introduced into evidence.…

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Note: Sweetening the Deal: Strengthening Transnational Bribery Laws Through Standard International Corporate Auditing Guidelines

By Timothy W. Schmidt. Full text here. Despite the existence of laws on the books against transnational bribery in most developed nations, prosecution of the crime is oftentimes half hearted. This Note explores a number of options to promote the punishment of corrupt businesses that bribe foreign officials, even when the prosecution of these businesses might…

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Note: Prosecutorial Use of Forensic Science at Trial: When Is a Lab Report Testimonial?

By Joe Bourne. Full text here. Since Crawford v. Washington, the Confrontation Clause has protected criminal defendants from testimonial hearsay statements. Less clear is what “testimonial” means. Lower courts have split on the question of whether scientific evidence is testimonial, struggling to apply Supreme Court cases decided in very different contexts to the generation of laboratory…

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Do Courts Create Moral Hazard?: When Judges Nullify Employer Liability in Arbitrations

By Michael H. LeRoy. Full text here. State courts are creating conditions for moral hazard in the arbitration of employment disputes. The problem begins when employers compel individuals to arbitrate their legal claims, denying them access to juries and other benefits of a trial. This empirical study identifies a disturbing trend: state courts vacated many arbitration…

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Natural Laws and Inevitable Infringement

By Alan L. Durham. Full text here. According to well-established principles, one cannot patent natural laws or phenomena per se, but one can patent new and useful applications of those laws and phenomena. Justice Breyer’s opinion in Laboratory Corp. of America Holdings v. Metabolite Laboratories, Inc. applies this distinction to inventions exploiting natural relationships, such as…

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Privatizing Ethics in Corporate Reorganizations

By A. Mechele Dickerson. Full text here. For several years, bankruptcy and corporate governance scholars have discussed “control rights” in bankruptcy cases and have debated how those rights should be allocated. Data indicate that, as a positive matter, creditors effectively have the ability to decide the fate of an insolvent firm. The scholarship does not, however,…

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