BYU Law Review最新文献

{"title":"Patent Law Viewed Through an Evidentiary Lens: The 'Suggestion Test' as a Rule of Evidence","authors":"C. Cotropia","doi":"10.2139/SSRN.893965","DOIUrl":"https://doi.org/10.2139/SSRN.893965","url":null,"abstract":"The Federal Circuit's recent nonobviousness jurisprudence has been the subject of much criticism. Reports from the Federal Trade Commission and the National Research Council and a pending petition for certiorari to the Supreme Court all conclude that the Federal Circuit has improperly relaxed the nonobviousness standard. Most of this criticism focuses on the Federal Circuit's implementation of part of the nonobviousness inquiry - the suggestion test. The suggestion test queries whether a suggestion to make the invention existed before the invention's creation. The Federal Circuit allegedly requires a suggestion to come solely from prior art references. The court ignores other evidence of undocumented suggestions that may exist in the knowledge of those skilled in the relevant technology or the nature of the problem being solved. This Article tests the validity of this criticism and finds that the Federal Circuit has not narrowed the suggestion test. By taking a novel look at the jurisprudence, the Article concludes that, instead, the court has adopted an evidentiary-like aspect to the suggestion test. Those cases where it appears the court is focusing only on the prior art are actually instances where the court is exercising an evidentiary aspect of the suggestion test. The suggestion test's rule of evidence excludes undocumented evidence of suggestion that does not contain the requisite detail and analysis. This rule of evidence is tailored to adjust the level of detail and analysis required to correspond to the complexity of the technology at issue. As a result, the suggestion test's rule of evidence helps to reduce overvaluation of suggestion evidence and the resulting, incorrect obviousness determinations. However, the rule may produce some erroneous nonobviousness determinations of its own, particularly at the United States Patent and Trademark Office, and thus should be relaxed in this context. Finally, this use of an evidentiary lens to look at, and evaluate, patent doctrine has application in patent law far beyond nonobviousness and the suggestion test.","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"213 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132503393","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Grave Matters: The Ancient Rights of the Graveyard","authors":"A. Brophy","doi":"10.2139/SSRN.777747","DOIUrl":"https://doi.org/10.2139/SSRN.777747","url":null,"abstract":"Descendants of people buried in cemeteries on private property have a common law right to access that property to visit the cemetery. That right, which is akin to an implied easement in gross, is recognized by statute in about a quarter of states and by case law in many others. Grave Matters explores the origins, nature, and scope of the little-recognized right and its implications for property theory. It discusses the right as part of well-established property doctrine and its relationship to recent takings cases, as well as the corollary graveyard right against desecration and the correlative right of communities to relocate cemeteries. The right of access, which traces its roots to the early the nineteenth-century, is important because it is one of the few implied rights of access to private property. It limits, by implication, the right to exclude, which is at the core of property rights. Thus, it offers a way of getting access to property without facing a takings claim. Moreover, the right is important because it reminds us that there are limits of the right of exclusion, which were recognized at common law. The right of relocation further illustrates the careful balancing of property rights with the community's right. Thus, the graveyard rights together emerge as vestiges of the nineteenth-century's consideration of community and property. A final section suggests the importance of the right of access for recent discussion about reparations for the era of slavery, for the right of access provides a property right (an easement) in descendants of slaves buried on plantations to access those plantations. The property held by descendants provides important symbolic connections between the past and present and offers hope of a lawsuit for reparations that is not barred by the statute of limitations.","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"2014 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127478663","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Autonomy of Church and State","authors":"Brett G. Scharffs","doi":"10.2139/SSRN.2623772","DOIUrl":"https://doi.org/10.2139/SSRN.2623772","url":null,"abstract":"The primary concern underlying both the Establishment Clause and the Free Exercise Clause is autonomy — of the state, of churches, and of individuals. Two conceptions of autonomy have vied for preeminence in the United States, one based upon the ideal of complete independence of church and state, having separation as its goal, and the other based upon the ideal of inter-independence, which tries to ascertain the proper manner in which the state can accommodate religion. The European Court of Human Rights has for the most part based its religious-freedom jurisprudence upon a different conception of autonomy, one that rests upon interdependence of church and state. Autonomy provides a better framework than existing doctrinal approaches for the resolution of difficult and controversial issues.","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"104 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121378053","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"State, Islam and Religious Liberty in Modern Turkey: Reconfiguration of Religion in the Public Sphere","authors":"T. Küçükcan","doi":"10.2139/SSRN.2498563","DOIUrl":"https://doi.org/10.2139/SSRN.2498563","url":null,"abstract":"This paper looks at the development of secularism and freedom of religion in Turkey. It also looks at representation of religion in the public sphere.","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126989477","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Splitting the Baby: Apportioning Environmental Liability Among Triggered Insurance Policies","authors":"Rebecca M. Bratspies","doi":"10.2139/SSRN.378940","DOIUrl":"https://doi.org/10.2139/SSRN.378940","url":null,"abstract":"CERCLA was intended to solve the nation's hazardous waste disposal problems. Not only would the law clean up hazardous waste sites, but, through retroactive strict liability, it would also make polluters pay the costs associated with this cleanup. Faced with staggering cleanup costs, Potentially Responsible Parties (\"PRPs\") sought to reduce their liability by invoking their Comprehensive General Liability (\"CGL\") insurance policies. PRPs often claimed coverage under multiple insurance policies issued over the course of many years. The resulting litigation frequently involved scores of insurance policies covering numerous industrial sites for the better part of the century. A policyholder might have purchased intricate layers of insurance coverage within each policy period. As an added complexity, there were often gaps in insurance coverage. With no statutory or contractual direction, common law courts had to fill the gaps and chart the interplay between state insurance law and federal environmental law. Unfortunately, the jurisdictions confronting this question responded fitfully and unsystematically. While nominally applying the same principles of insurance contract interpretation, courts reached disparate, if not downright contradictory, results. Further amplifying the confusion, courts almost uniformly failed to articulate the reasoning driving a particular allocation remedy, making it virtually impossible to project future outcomes. PRPs and insurers are left without predictable guidelines: facing enormous but uncertain liabilities. This article examines several core questions in the allocation process. When is insurance triggered to cover a loss? How should responsibility for covering a loss be divvied up? Should the policyholder be assigned any share of the loss? If so, under what circumstances — any time there is a gap in coverage, or only when that gap is rooted in a decision to self-insure? These questions implicate fundamental assumptions of existing insurance jurisprudence, particularly assumptions about the nature of the contract between the parties. The answers necessarily reflect policy choices about fairness and about the purpose of insurance. I contend that the existing law can be resolved into two fundamentally different allocation models that all courts have implicitly employed. Taking a holistic approach, this article seeks to reconcile, to the extent possible, these competing models, and proposes a new allocation system that maximizes the identified goals of the allocation process, while minimizing any disadvantages.","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"122 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-02-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116471813","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Product Liability and Game Theory: One More Trip to the Choice-of-Law Well","authors":"Michael I. Krauss","doi":"10.2139/SSRN.307143","DOIUrl":"https://doi.org/10.2139/SSRN.307143","url":null,"abstract":"Modern scholarship defends the view that current choice-of-law trends are conducive to a balanced approach to product liability law, in which each state's substantive law is unlikely to favor plaintiffs or defendants. This paper takes issue with that scholarship. Using the insights of game theory, this essay explains why American product liability law under current choice-of-law constraints results in systematic and increasingly pro-plaintiff adjudication. Federalizing the substantive law is the usual remedy offered for \"prisoners' dilemma\" problems in the states. This paper criticizes the idea of substantive federal product liability law, and proposes in its stead a federal choice-of-law rule developed either legislatively or through the courts. A federal choice-of-law rule, if correctly crafted, would be compatible with constitutional mandates and suitable for the resolution of the game theoretic problem. Several possible federal choice-of-law rules are examined, but only one, a \"law of first retail sale\" rule, passes the needed constitutional and game-theoretic musters. Practical and jurisprudential implications of this rule are also fleshed out in the paper.","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"80 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121197974","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"What Constitutional Law Can Learn from the ALI Principles of Family Dissolution","authors":"D. D. Meyer","doi":"10.2139/SSRN.288820","DOIUrl":"https://doi.org/10.2139/SSRN.288820","url":null,"abstract":"Judged from the perspective of conventional family-privacy analysis, there is reason to doubt the constitutionality of some of the more adventurous child-custody provisions found in the ALI's new Principles of the Law of Family Dissolution. Some of those provisions, for instance, create entirely new categories of \"parents\" having no prior legal or biological tie to a child and permit these caregivers to claim custody against the wishes of a child's legal parents. Yet, this Article contends that a more nuanced understanding of the Constitution's regard for family would vindicate the ALI's approach. The main reason why the ALI's treatment of what current law calls non-parent caregivers scrapes up so hard against the conventional understanding of family privacy is that the ALI discerns shades of gray within the family that conventional fixations on tradition and categorization obscure. Conventional analysis, or at least the strain of it that predominates in the state courts, favors bright lines in defining the family recognized by the Constitution and the measure of protection afforded it. Sustaining the ALI's approach to custody, by contrast, depends upon the emergence in constitutional jurisprudence of a more sensitive appreciation of the diversity of family life and of proportionality in scrutinizing state incursions. The Supreme Court's most recent forays into family privacy give evidence that it may be coming to that view already.","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2001-10-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121409072","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Mexico and the 1981 United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief","authors":"J. L. Fernández","doi":"10.1163/187103107x219091","DOIUrl":"https://doi.org/10.1163/187103107x219091","url":null,"abstract":"I. INTRODUCTION Within the realm of human rights, it is extremely difficult to determine the proper scope of the freedoms of conscience, of belief, and of religion and to identify those freedoms' progress and achievements in a general and versatile manner for all nations. The name of this freedom cannot easily be reduced to a single word-for that reason, international textbooks resort to the expression \"freedom of conscience, of convictions, and of religion.\" However, for purposes of brevity we speak simply of \"religious freedom,\" called \"freedom of worship\" or \"freedom of conscience\" in days past. Criticisms pointing out the deficiencies of all these terms are pointless. Therefore, we should stop pointing out this enormous difficulty and try to agree on a simple and understandable expression for all. To this end, in 1981, the United Nations (\"U.N.\") adopted the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (\"1981 Declaration\" or \"Declaration\").1 The U.N.'s effort, which had the purpose of establishing a minimum consensus regarding religious freedom that everyone could understand, is very commendable. This effort, incidentally, was the result of more than two decades of important work,2 which I will not describe here because it is beyond the scope of this article. IMAGE FORMULA5 However, the U.N. fell short of realizing its purpose by failing to formulate a convention that would put into practice the principles of the Declaration. The Declaration does not impose an international legal obligation on the signatory nations. Had the U.N. formulated a corresponding convention, the member states could have bound themselves legally to adequately respect religious freedom under the precise terms of the Declaration. However, the U.N. has not yet fulfilled this task, despite the passage of twenty years since the Declaration was issued. The purpose of this article is to describe the beginnings, progress, and current state of religious freedom in Mexico. Part II describes the attitudes of the Mexican government toward religion during the past century. Part III describes Mexico's attitude and behavior regarding the Declaration, pointing out that Mexico purported, in the international arena, to be much more in favor of religious freedom than it really was (in the domestic arena). Parts IV and V point out that despite several pro-religion reforms that were made to Mexico's Constitution in 1992, much necessary progress remains. II. HISTORY OF RELIGIOUS FREEDOM IN MEXICO Mexico, a country that has for decades proclaimed itself a liberal and democratic state, possesses a very lamentable characteristic: the restriction of religious freedom. This restriction produced a precarious situation in the country between 1917 and 1992. The constitution that was in effect at that time included several provisions that repressed religious freedom. Even so, it would not have been inconsistent for Mexican authorities ","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128917250","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Training of Court Managers","authors":"Harvey E. Solomon","doi":"10.1201/9780203719428-18","DOIUrl":"https://doi.org/10.1201/9780203719428-18","url":null,"abstract":"","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"151 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133070442","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Law of Presidential Transitions and the 2000 Election","authors":"Todd J. Zywicki","doi":"10.2139/SSRN.262338","DOIUrl":"https://doi.org/10.2139/SSRN.262338","url":null,"abstract":"The Presidential election of 2000 raised a number of unprecedented legal and political issues. Among those were issues raised by the Presidential Transition Act of 1963, which provides for office space and funding to be made available to the President-elect to effectuate his transition to power. The statute vests in the Administrator of the General Services Administration the power to determine the President-elect under the statute and thereby to release the transition offices and funds. Following the certification of Florida's electoral votes in November 2000, George W. Bush could claim a majority of certified and pledged electoral votes and thus requested the release of the transition resources. The Administrator refused this request and refused to release the transition resources until after the Supreme Court's ruling in Bush v. Gore and Al Gore's subsequent concession. This essay examines the language, legislative history, political history, and policies of the Act and concludes that the Administrator acted improperly in refusing to recognize Bush as the President-elect following the certification of Florida's electoral votes for him. The essay examines the arguments advanced by the Administrator and concludes that they do not justify the vast power and discretion claimed by him under the Act. The essay then briefly considers possible amendments to the statute to prevent similar problems in the future. Most of the legal issues raised by the 2000 election are likely to be unique to that election and are unlikely to arise again in future elections. By contrast, the issues raised by the Presidential Transition Act are likely to occur again in the future, making necessary an understanding of the inaccuracies of the Administrator's acts in the 2000 election as well as the proper interpretation of the Act.","PeriodicalId":142428,"journal":{"name":"BYU Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127788450","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}