Scholarly Repository

Wich v. Fleming: The Dilemma of a Harmless Defect in a Will

Melissa Essary — Tue, 12 Mar 2013 12:10:07 PDT

Case note that influenced Texas legislature to change the law regarding self-serving affidavits in wills.

The Dog Days in American Public Schools: Observations and Suggestions Regarding the Laws, Challenges and Amazing Benefits of Allowing Service Animals to Accompany Children with Special Needs to School

Joshua T. Walthall — Tue, 26 Feb 2013 09:15:21 PST

Medicare Subrogation of Third Party Liability Claims—An Evolving (and Elusive) Effort

Huntington M. Willis — Tue, 26 Feb 2013 09:15:21 PST

Of Chew Toys and Designer Handbags: A Critical Analysis of the “Parody” Exception under the U.S. Trademark Dilution Revision Act

Eugene C. Lim — Tue, 26 Feb 2013 09:15:20 PST

“Lawyer as Public Citizen” – A Futile Attempt to Close Pandora’s Box

Matthew E. Meany — Tue, 26 Feb 2013 09:15:20 PST

John Finnis’s Natural Law Theory and a Critique of the Incommensurable Nature of Basic Goods

Alex E. Wallin — Tue, 26 Feb 2013 09:15:19 PST

The Obligation of Government Toward Humanity: The Role of the State in the Common Good

David N. Wagner — Mon, 25 Feb 2013 13:58:30 PST

Lawyers, Loyalty, and the Question of Citizenship: Perspectives from the Classroom and from Catholic Social Thought

Kevin P. Lee et al. — Wed, 13 Feb 2013 07:24:40 PST

Myths and Realities in the Vietnam Debate

Robert F. Turner — Thu, 13 Dec 2012 08:07:50 PST

Criminal Procedure - Warrantless Aerial Surveillance Endorsed - California v. Ciraolo (106 S. Ct. 1809)

Thu, 13 Dec 2012 08:07:49 PST

Breaking Up is Hard To Do: North Carolina Refuses to End its Relationship with Heart Balm Torts

Jean M. Cary et al. — Wed, 05 Dec 2012 09:07:36 PST

Defining Unfairness in "Unfair Trade Practices"

Matthew W. Sawchak et al. — Tue, 16 Oct 2012 11:21:08 PDT

North Carolina's "unfair or deceptive acts or practices" statute, section 75-1.1 of the North Carolina General Statutes, is a constant presence in North Carolina litigation. The statute combines two explosive ingredients: (1) a private right of action for treble damages and (2) an open-ended conduct standard.

For claims of unfair practices, the conduct standard under section 75-1.1 is open-ended to the point of dysfunction. The standard is no more than a list of adjectives-a list that does not forecast the outcome of a given case. When courts apply this list of adjectives, they usually cannot explain why the adjectives are or are not satisfied. The resulting case law is opaque. This opaqueness makes the outcome of unfairness cases unpredictable.

A solution to these problems is readily available. Section 75-1.1 is based on section 5 of the Federal Trade Commission Act. Early decisions under section 75-1.1 said expressly that courts should take guidance from the law under section 5. The courts need only follow that advice.

The law under section 5 has much to offer courts in section 75- 1.1 cases. Most notably, section 5 doctrine holds that conduct is unfair only if it causes injuries that a plaintiff cannot reasonably avoid. Adding this "not reasonably avoidable" test to the unfairness doctrine under section 75-1.1 will make this form of litigation more balanced and predictable.

Deconstructing a Decade of Charter School Funding Litigation: An Argument for Reform

Lisa Lukasik — Tue, 16 Oct 2012 11:16:41 PDT

For over a decade, North Carolina's charter schools and traditional public schools have been embroiled in litigation over access to local public funding. This litigation shows no sign of abatement. In fact, disputes between charter schools and traditional public schools over local funds are likely to continue until the North Carolina legislature revisits the state's charter school funding statute and modifies the means by which local funds are transferred to charter schools.

This Article deconstructs the state's charter school funding statute, the decade-long series of appellate decisions interpreting it, and the administrative and legislative responses to each appellate decision. It contends that the source of disputes over local funding is found, at least in part, in the statutory method by which these funds are distributed to charter schools through the accounts of local boards of education.

This Article ultimately proposes a fundamental revision to North Carolina's charter school funding statute to allow charter schools to receive their statutory allocation of local public funds directly from the source of those funds, eliminating local boards' responsibility to serve as intermediaries in the transfer of those funds to charter schools. This change facilitates charter schools' ability to enjoy the independence envisioned by their authorizing legislation and eliminates comingling of charter school and traditional public school funding in local boards' accounts. With greater independence and without comingled funds, disputesbetween the two types of public schools are less likely to arise, and educational resources are more likely to be applied directly toward education rather than toward litigation.

Change to the Best Mode Requirement in the Leahy-Smith America Invents Act: Why Congress Got It Right

Andrew R. Shores — Thu, 13 Sep 2012 11:48:28 PDT

The Leahy-Smith America Invents Act (AIA), signed into law on September 16, 2011, represents the most significant overhaul of the United States Patent system since the Patent Act of 1952. In addition to making the United States a “first-to-file” system, which is more in line with the patent law of other countries, the act institutes numerous other changes aimed at ensuring that the United States “maintains its competitive edge in the global economy.” One of these changes eliminates failure to disclose the best mode as a defense in patent infringement litigation. Proponents applaud the change for the positive effect it will have on patent litigation, specifically, reducing the time and cost of litigation by eliminating pre-trial discovery associated with trying to ascertain what the inventor knew when the patent application was filed. The critics bemoan the change, arguing that the law removes the only enforcement mechanism to ensure that the inventor will fully disclose the invention to the public. This Comment explores the reasons for making the change, the practical effect those changes will have on best mode disclosure, and why the new law will not have the undesirable effect of reducing best mode disclosure.

Out of Sight, Out of Mind? Why the Lanham Act Needs to Be Brought Into the Digital Millennium

M. Lee Taft — Thu, 13 Sep 2012 11:48:28 PDT

This Comment provides a brief overview of trademark law as specifically applied in the context of the Internet, and also looks at the substantial differences in how that law is applied in various jurisdictions. Part I of the Comment briefly discusses the protections offered by the Lanham Act. Part II discusses the Lanham Act as applied to the Internet, specifically in the context of website meta tags. Part III discusses how recent decisions have ruled on the buying and selling of keywords. Part IV discusses recent rulings on using trademarked terms as meta tags. Finally, Part V discusses potential changes to the Lanham Act and its application to keywords to make it more effective in the context of digital protection.

Chinese Patents as Copyrights

Benjamin Piwei Liu — Thu, 13 Sep 2012 11:48:27 PDT

Although harmonization efforts such as the Agreement on Trade- Related Aspects of Intellectual Property Rights (TRIPS) and the Patent Corporation Treaty regime have brought national patent systems closer, differences among them remain a continuing challenge to innovators in an interconnected global marketplace. The recent development of the Chinese patent system is of particular interest because China is the factory of the world, the most populous market, the home of the patent office that handles the most patent application filings, and the number one source of imports that violate intellectual property rights (IPR). Its patent system affects every company whose supply chain, competitor or market footprint touches China. Moreover, developing countries are increasingly looking to China for an alternative IPR model. China’s patent system may well be the basis of new norms for other emerging economies.

The Rise and Decline of the Intellectual Property Powers

Peter K. Yu — Thu, 13 Sep 2012 11:19:31 PDT

Since its reopening to foreign trade in the late 1990s, China has been the poster child of intellectual property piracy and counterfeiting. Virtually every year, the Office of the United States Trade Representative (USTR) lists China on its watch list or priority watch list. The country’s piracy and counterfeiting problems have also been frequently mentioned in connection with international intellectual property enforcement initiatives, such as the highly controversial Anti-Counterfeiting Trade Agreement (ACTA) and the equally problematic domestic legislative proposals for heightened copyright enforcement. In a recent report, the International Trade Commission estimated that “firms in the U.S. [intellectual property]–intensive economy that conducted business in China in 2009 reported losses of approximately $48.2 billion in sales, royalties, or license fees due to [intellectual property rights] infringement in China.”

Should Foreign Patent Law Matter?

Timothy R. Holbrook — Thu, 13 Sep 2012 11:19:30 PDT

One of the most controversial issues in American law today is the extent to which it is appropriate for courts to consider foreign law when deciding issues of United States law. The debate has engaged the courts, Congress, and commentators, leading to discussions about completely banning references to non-United States law by courts. The reality is, however, that the United States courts often have to address or apply foreign law.

Deconstructing Shanzhai - China's Copycat Counterculture: Catch Me If You Can

William Hennessey — Thu, 13 Sep 2012 11:19:29 PDT

What is a “Chinese copy”? And why does China have a reputation as the quintessential “copycat culture,” where nimble knock-offs of virtually any article are in the daily news and respect for and protection of the intellectual property owned by others is widely perceived to be either weak or non-existent? Are copying and creativity diametrical opposites, two sides of the same coin, or unrelated to one other? Are wildly successful imitators uncreative? Does the charge that “the Chinese are the masters of copying” reflect something unique about China’s traditions and culture? Do China’s cultural traditions (particularly Confucianism) foster copying or suppress creativity? Is copying the works of others so embedded in Chinese culture that the copyists are totally unconcerned about the fact that what they are doing is copying? Or are they engaged in a new kind of innovation and social commentary?

The Elusive "Marketplace" in Post-Bilski Jurisprudence

Andrew Chin — Thu, 13 Sep 2012 11:19:28 PDT

The Supreme Court’s 2010 decision in Bilski v. Kappos appears to have provided inadequate guidance to the courts and the Patent Office regarding the scope of the abstract-ideas exclusion from patentable subject matter. Federal Circuit Chief Judge Randall R. Rader, however, appears to have found in that decision a clear vindication of his own view that the machine-or-transformation test is incorrectly grounded in “the age of iron and steel at a time of subatomic particles and terabytes,” and thus fails, for example, to accommodate advances in “software [that] transform[] our lives without physical anchors.” Chief Judge Rader has subsequently authored a series of opinions identifying the “marketplace” as an operational context in which a claimed invention is not likely to be unpatentably abstract. This Article argues that this reliance on the “marketplace” is untenable and should form no part of patent-eligibility doctrine.