Joint client representation is a practice that is fundamentally important to the legal system. The cost of obtaining private legal services has been rising over the past decade. This trend poses a serious problem: while the cost of these services has skyrocketed, the ability of large segments of the population to pay for them has not matched pace. Often times, due to the economic constraints faced by an ever-growing segment of our society, parties in need simply cannot afford to obtain independent legal representation. To these individuals, joint representation constitutes one of the most viable and accessible methods of obtaining adequate legal representation.
Divorce litigation is one area where an overwhelming demand for legal representation exists and where the problem of unmet legal needs is particularly pervasive. One particular subset of divorce cases, the so-called friendly divorce, appears to be an ideal candidate for joint representation. In these cases, the couple has reached agreement on the majority of marital settlement issues and requires only limited legal assistance.
E-mail, the most revolutionary advancement in communication since the printing press, has now become the single most important means of intrusion into our daily lives. Because of its inherent convenience and efficiency, e-mail facilitates an unprecedented level of constant, unchecked disturbances from unsolicited bulk messages, also known as spam. As a result of the Internet’s decentralized architecture and flawed technical underpinnings, consumers and businesses face daily mass invasions via e-mail. These continuous transmissions of low value unsolicited e-mails are invasions to property interests. In sum, spam is nuisance.
Every year the Army Corps of Engineers receives over 74,500 applications for permits under section 404(a) of the Clean Water Act (“CWA”), the provision regulating the discharge of fill or dredged material into the nation’s waters. Consequently, when the Supreme Court granted certiorari for Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (“SWANCC”) – a case potentially affecting the status of millions of acres of American wetlands – property owners, developers, and environmentalists alike were wise to stand up and take notice.
The SWANCC case involved a Chicago-area consortium of municipalities that sued the U.S. Army Corps of Engineers (“Corps”) for denying them a permit to develop a landfill on an abandoned mining site because the Corps had determined the land in question was inhabited by migratory birds. The central issue presented in SWANCC was whether this “Migratory Bird Rule” – a regulation promulgated in 1986 giving the Corps authority over wetlands populated by migrating birds – was a proper exercise of jurisdiction under the CWA. The municipalities argued that the rule exceeded the Corps’ authority because the CWA was meant to only regulate waters that are navigable or that adjoin navigable waterways. On the other hand, the Corps argued that its jurisdiction is not limited by traditional notions of navigability; rather it has authority over the nation’s waters to the fullest extent of the Commerce Clause.
The increasingly complex technology involved in patent infringement cases has lead many to question the ability of district court judges and jurors in such cases to issue uniform and predictable decisions. In fact, there is evidence that the Federal Circuit Court of Appeals – the appellate court with sole jurisdiction and accumulated expertise in patent law – routinely overrules district court decisions regarding claim construction and prosecution history estoppel under the doctrine of equivalents. Given the frequency with which the Federal Circuit overturns district court decisions, and the fact that nearly every patent infringement case involves a dispute over claim construction or prosecution history estoppel under the doctrine of equivalents, patent infringement cases are typically uncertain until after appeal.
The uncertainty of patent infringement cases until after appeal is highly problematic for several reasons. First, uncertainty at the trial level is inefficient because it stimulates appeals rather than settlements. Second, it “creates doubt about the ability of district court judges to adjudicate complex technical patent [infringement] cases.” Finally, this uncertainty may even have the far-reaching effect of stifling innovation. Thus, the current system of adjudication for patent infringement trials is in need of reform, and a specialized patent trial court combined with a rule of greater deference appears to be the most effective means for bringing needed certainty to patent infringement trials.
Subrogation has been called a “sleepy, although significant subject,” and perhaps consequently, many articles treating the topic begin with a prefatory example (either real or abstract) of the potential entanglements it can create. In line with this established tradition, this Note begins with two such examples.
Roy Block was injured in an automobile accident caused by another person. Like roughly 23 million other people in California, Block belonged to a managed care organization (“MCO”). His MCO agreed to pay for the treatment of his injuries on the condition that he agree to reimburse it from any eventual tort recovery. This might seem fair since Block might otherwise recover twice for his injuries; first when the MCO paid for his treatment and then again when he recovered from the tortfeasors. Yet, what if Block was not able to recover for all of his injuries, economic or otherwise? For example, what if he suffered a total of $10,000 in damages, half of which was for medical expenses, but was forced to settle for $7,000? Should his MCO still be allowed to recover its full $5,000 claim first, even if this leaves him uncompensated for $3,000 in pain and suffering and lost wages? How should a court interpret MCO contracts that provide for this very contingency? This is one of the problems discussed in this Note.
Ten years after the Family and Medical Leave Act (“FMLA”) was signed into law, paid family leave emerged as the new focal point in the family rights movement. Paid family leave legislation has been proposed in twenty-eight states and momentum is growing. In September 2002, advocates of paid family leave celebrated their first victory. California became the first state in the nation to enact legislation guaranteeing pay to employees taking leave to care for an ill family member. This legislation propelled paid family leave into the national spotlight, sparking debate on both sides of the issue.
Paid family leave advocates argue that the benefit is a necessary response to demographic and cultural changes in the United States. Labor force participation of women with young children has increased dramatically in the past few decades. In 1998, 62% of women with children under three were working, compared to 34% in 1975. Further, the number of children living in single-parent families rose from 12% in 1970 to 28% in 1998. These changes have resulted in a declining share of children living with a parent who is available to care for them full-time. By 1998, only a quarter of all children had one parent staying at home while the other worked. As a result, balancing the demands of work and family has become more challenging, and advocates argue that paid family leave is of increasing importance for working Americans.
On February 19, 2003, a court in Hamburg, Germany convicted Moroccan national Mounir Motassadeq of over 3000 counts of accessory to murder in connection with the attacks of September 11, 2001. Motassadeq stood accused of being a member of the Hamburg terrorist cell that plotted and executed the hijacking of U.S. aircraft and subsequent attacks on the World Trade Center and Pentagon. He was convicted in a Hamburg higher regional court and sentenced to the maximum term of fifteen years in prison. Motassadeq’s was the first conviction related to the September 11 attacks in any jurisdiction.
The design of the tax system and substance of tax laws have an effect on nearly every economic decision made by individuals. Whether to invest or consume, buy or sell, and what forms of consumption or savings in which to engage are all issues that are influenced by the design of the tax system and the substance of tax laws. The tax treatment of debt in the U.S. hybrid-based income tax system generates inequities and inefficiencies that result from both an inconsistent base and failures in timing. Americans with high net wealth and sophisticated tax advisors can strategically use the inconsistent base and timing problems associated with debt to avoid, delay, or shift tax burdens. Unfortunately, for lower- and middle-class Americans without the benefit of tax advisors, the inconsistent base and timing problems associated with debt in our tax system can be economically detrimental.
The U.S. Patent and Trademark Office (“PTO”) issues over 170,000 patents a year. Unfortunately, the PTO makes mistakes and issues some invalid or “bad” patents that do not meet the statutory requirements of novelty and nonobviousness. The simplest approach to eliminating bad patents is to subject applications to stricter scrutiny by the PTO. A recent article, however, has questioned the efficiency of spending more resources at the examination stage. Aside from the patent prosecution procedure, federal patent law allows administrative reexaminations, either ex parte or inter partes. Nevertheless, the effectiveness of this approach is undercut by the low number of reexaminations actually requested.
This Note takes a more indirect route to improving patent quality. A major problem with the patent litigation system is that it is often cheaper for individual defendants to settle than to litigate, even if the patent is clearly invalid. The current system allows patentees to profit from bad patents and, therefore, creates an incentive to file bad patents. Further, patentees strategically sue small companies, knowing that they lack the resources to challenge patent validity effectively.
When the Internet allows Mexican consumers to buy infringing U.S. sneakers made in Korea, which nation’s trademark laws should apply?