• Archive for May, 2012

    Professor Bailey on Privacy and Domestic Violence

    by  • May 31, 2012 • Faculty Scholarship • 0 Comments

    Kim Bailey has posted a new paper on privacy and domestic violence to ssrn. The paper, forthcoming in the American Criminal Law Review, is titled "It's Complicated: Privacy and Domestic Violence."  Here's the abstract:

    This Article challenges the notion that there is no role for privacy in the domestic violence context. Privacy is a complicated concept that has both positive and negative aspects, and this Article examines the value that more privacy could provide for domestic violence victims. While privacy was historically used as a shield for batterers, more privacy for domestic violence victims could protect their personhood, ensuring that they are treated with dignity and respect. In addition, current mandatory criminal justice policies have become so intrusive in many victims’ lives that limitations are needed to prevent the threat of state abuse. These protections are particularly important for poor victims and victims of color who are more vulnerable to such abuses. In many cases, a domestic violence victim’s choice not to pursue the arrest and prosecution of her batterer should be respected by state authorities. In addition, no victim should be required to cooperate as a witness against her batterer.

    Download the paper here.

    Seaman on Trade Secrets and Patents

    by  • May 14, 2012 • Faculty Scholarship • 0 Comments

    Professor Christopher Seaman has posted a new article, co-authored with Brian Love, on ssrn. The paper is entitled "Best Mode Trade Secrets." Here's the abstract:

    Trade secrecy and patent rights traditionally have been considered mutually exclusive. Trade secret rights are premised on secrecy. Patent rights, on the other hand, require public disclosure. Absent a sufficiently detailed description of the invention, patents are invalid. However, with the passage of the Leahy-Smith America Invents Act (“AIA”) last fall, this once black-and-white distinction may melt into something a little more gray. Now, an inventor’s failure to disclose in her patent the preferred method for carrying out the invention — the so-called “best mode” — will no longer invalidate her patent rights or otherwise render them unenforceable.
    In this brief Essay, we explain why it may become routine post-patent reform for patentees to attempt to assert both patent rights and trade secret rights for preferred embodiments of their invention in certain types of cases. We also consider potentially undesirable ramifications of this change and suggest one approach courts may use to limit claims of concurrent trade secret and patent protection when equity demands.

    Download it here.

    Filarsky v. Delia: A New Supreme Court Private Individual Immunity Decison

    by  • May 10, 2012 • Faculty Commentary • 0 Comments

    By Sheldon Nahmod [via Nahmod Law]


    I blogged on November 10, 2011, about the Supreme Court‘s grant of certiorari in Delia v. City of Rialto, 621 F. 3d 1069 (9th Cir. 2011), sub nom Filarsky v. Delia, No. 10-1018, where the Ninth Circuit held that a private attorney retained by the government was not entitled to qualified immunity, even though all of the government actors involved in the same challenged conduct were so protected because they did not violate clearly settled law.

    The Question Presented was the following: “Whether a lawyer retained to work with government employees in conducting an internal affairs investigation is precluded from asserting qualified immunity solely because of his status as a ‘private’ lawyer rather than a government employee.”

    In a unanimous decision handed down on April 17, 2012, and written by Chief Justice Roberts, the Court ruled that an individual hired by the government to work for it is indeed protected by qualified immunity, even though that individual does not work for the government on a permanent or full-time basis. Filarsky v. Delia, 132 S. Ct. — (2012).

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    Professor Brody on Private Philanthropy

    by  • May 4, 2012 • Faculty Scholarship • 0 Comments

    Professor Evelyn Brody has posted a new paper, co-authored with John E. Tyler, III, on ssrn. The paper is called How Public is Private Philanthropy? Separating Reality from Myth and it will appear in the Philanthropy Roundtable. Download the paper here.

    And here is the abstract:

    In recent years we have increasingly heard the claim that government should have a bigger role in directing philanthropies and their assets because the money held by charities is “public money.” This monograph presents a comprehensive analysis of the public money claim and concludes, on the basis of the numerous applicable legal precedents, that the public money assertion is largely myth. This second edition considers the implications of an important decision from the United States Supreme Court rendered since the first edition and of a growing volume of activity at the state level that increasingly seem to be encroaching on philanthropic autonomy and independence. 

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