Chapters in Books

Printing is not supported at the primary Gallery Thumbnail page. Please first navigate to a specific Image before printing.

Switch View to Grid View Slideshow

Clarifications and Complications in Enforcing Open Source Software Licenses

Robert W. Gomulkiewicz

The Handbook combines an in-depth analysis of various specific types of IP licensing agreements (including FRAND licensing of Standard Essential Patents and data licensing) with a presentation of other topics of both dogmatic and practical relevance affecting all types of IP licensing transactions, including competition law and bankruptcy law. The Handbook goes beyond the analysis of classical substantive issues and discusses the treatment of IP licensing under international investment law and the use of commercial arbitration for solving international IP licensing disputes.

The Handbook ultimately aims to offer a scholarly contribution to the development of global or regional IP licensing laws and policies. By opening innovative transversal, comparative and policy perspectives, this Handbook will appeal to a wide audience including IP practitioners, lawyers and IP and contract law scholars globally.
Antitrust in the Health Care Sector

Doug Ross

This chapter is an opportunity for students to apply the concepts addressed elsewhere in the book, but at a deeper level and in the context of a sector that accounts for a very large share of antitrust activity on the part of government enforcers and private plaintiffs. The topics chosen illustrate some of the nuances in applying antitrust law in the real world and show how the application of antitrust principles has evolved over time. The chapter also raises important policy questions regarding how to apply antitrust to a sector that is rife with market failures, including what tools and approaches (including regulation) could be used to make such markets work better.

Our particular focus here is on those parts of the health care sector involving health care providers, which primarily include physicians and hospitals, and how they have organized and conducted themselves, including in particular in negotiating contracts with health care payers, which primarily include commercial health plans, for the services furnished by the providers to members of the health plans.
The Symbiotic Model: Leviathan and Behemoths in America

Dongsheng Zang

In the context of rapidly advancing science and technology, particularly artificial intelligence, new "monsters" distinct from the Leviathan (i.e., the state) are emerging, shaking the foundations of the modern legal system that presumes the dominance of the Leviathan. This series, titled "The Monsterizing Platform Power and Law" likens global mega-platforms to the Behemoth, a creature depicted alongside the sea monster Leviathan in the Old Testament (chapters 40-41, the Book of Job). It aims to explore the confrontation and control of the powers of Leviathan and Behemoth from a legal perspective, and to foresee the future of freedom and democracy (from "Introduction to the Series" by Tatsuhiko Yamamoto).
Alaska

Jeff M. Feldman

The Law of Class Action: Fifty-State Survey 2025 is a valuable tool for both in-house and outside counsel who confront the prospect of litigating class actions in state forums with which they may have little or no experience and must make informed recommendations on removal. Succinct summaries are prepared by litigators from each of the respective states and address changes in rules and statutes as well as significant case law. These summaries are extremely useful in understanding state court rules essential to practitioners and parties alike.
Redistricting Commissions

Lisa Marshall Manheim

Redistricting commissions represent a significant innovation in American election law. By shifting power away from state legislatures and toward entities specially designed to draw electoral lines, proponents hope to unlock the potential of institutional change. Born of reform across numerous jurisdictions, these commissions reflect a wide diversity of structures and features. Some of the most important differences involve how commissioners are selected, how much autonomy each commission exercises, and the rules governing each entity’s internal voting processes. Scholars have examined these legal differences and their implications for redistricting. They have also explored, more broadly, the normative underpinnings of these reforms as well as commissions’ empirical outputs. Notwithstanding this rich body of scholarship, trends dominating American politics, including those associated with rising polarization, have outpaced the literature in potentially important ways. At least three related phenomena—the threat of partisan capture, the variable durability of reform, and the inherent limitations of commissions—complicate the work of commissions and their potential going forward and, accordingly, warrant further examination.
Alaska

Jeff M. Feldman

The Law of Class Action: Fifty-State Survey 2024 is a valuable tool for both in-house and outside counsel who confront the prospect of litigating class actions in state forums with which they may have little or no experience and must make informed recommendations on removal. Succinct summaries are prepared by litigators from each of the respective states and address changes in rules and statutes as well as significant case law. These summaries are extremely useful in understanding state court rules essential to practitioners and parties alike.
Alaska

Jeff M. Feldman

The Law of Class Action: Fifty-State Survey 2023 is a valuable tool for both in-house and outside counsel who confront the prospect of litigating class actions in state forums with which they may have little or no experience and must make informed recommendations on removal. Succinct summaries are prepared by litigators from each of the respective states and address changes in rules and statutes as well as significant case law. These summaries are extremely useful in understanding state court rules essential to practitioners and parties alike.
How Do Japanese Clients View Their Lawyers -- and How Did Those Views Change over the Decade between Surveys? [Bengoshi ni taisuru soshōtōjisha no hyōka – 10nen de hyōka wa dou kawatta ka]

Daniel H. Foote

A central component of the Civil Litigation Behavior Research Project (2003-2008) and the successor Civil Litigation Research Project (2016-2020) was a set of surveys of litigants in civil cases.1 For comparison purposes, each project also included a survey of the general public, containing a number of identical or similar questions. Among the many aspects of the litigation experience covered in the surveys, several questions focused on the lawyer-client relationship. These included questions about access to lawyers, advice by lawyers, and client evaluations of and level of satisfaction with the lawyers who represented them. After briefly examining some of the ways in which the Japanese legal profession changed in the ten years between the projects, this essay will compare results from the two studies, with a focus on items appertaining to the lawyer-client relationship.
People with Disabilities

Elizabeth Pendo

Given the national reckoning around structural inequity, racism, and intractable health inequalities, there is an unrequited demand among faculty and scholars who teach and write about health equity and social justice for texts that go beyond a discussion of the social determinants of health and access to care to provide analysis that offers a structural and legal lens for understanding entrenched health inequity in the U.S. The COVID-19 pandemic has only made the need for this approach more compelling and urgent.

Addressing that need, authors Elizabeth Tobin-Tyler and Joel Teitelbaum have built upon and expanded their first edition with Essentials of Health Justice: Law, Policy, and Structural Change, Second Edition. This unparalleled new edition explores the historical, structural, and legal underpinnings of racial, ethnic, gender-based, and ableist inequities in health, and provides a framework for students to consider how and why health inequity is tied to the ways that laws are structured and enforced. Additionally, it offers analysis of potential solutions and posits how law may be used as a tool to remedy health injustice.

Written for a wide, interdisciplinary audience of students and scholars in public health, medicine, and law, as well as other health professions, this accessible text discusses both the systems and policies that influence health and explores opportunities to advocate for legal and policy change by public health practitioners and policymakers, physicians, health care professionals, lawyers, and lay people.
Administrative Sovereignty: Tribal Governance and Public Administration

Kekek Stark and Monte Mills

This cutting-edge new casebook challenges the dominant White-centric narrative of public administration, offering a fresh array of perspectives, with the lofty aim of ending the marginalization of communities in public policy implementation. Contributors adopt a liberatory framework to examine street-level public administrators (e.g., teachers, security officers, policy analysts, and human resource experts) most responsible for implementing public policy in the United States, including and amplifying previously unrecognized narratives on the front lines of public administration. Case studies explore real-life public servants, not traditionally heard of, offering counter-narratives. Each chapter concludes with an empowerment exercise and assignment for faculty to adopt in their classroom.

This edited volume, a first of its kind, is written by experts in public policy and administration, bringing together top and emerging scholars in one volume to amplify underrepresented voices in public administration and policy. Chapters are rooted in qualitative approaches and center the narratives of marginalized communities, including women, People of Color, and LGBTQIA+ public servants. Street-Level Public Servants offers a much-needed casebook for public administration and public policy courses in the twenty-first century.
A House Divided: The Minnesota Experimental City and Competing Narratives of Conservation

Todd A. Wildermuth

Minnesota’s Twin Cities have long been powerful engines of change. From their origins in the early nineteenth century, the Twin Cities helped drive the dispossession of the region’s Native American peoples, turned their riverfronts into bustling industrial and commercial centers, spread streets and homes outward to the horizon, and reached well beyond their urban confines, setting in motion the environmental transformation of distant hinterlands. As these processes unfolded, residents inscribed their culture into the landscape, complete with all its tensions, disagreements, contradictions, prejudices, and social inequalities. These stories lie at the heart of Nature’s Crossroads. The book features an interdisciplinary team of distinguished scholars who aim to open new conversations about the environmental history of the Twin Cities and Greater Minnesota.
Privacy, Public Disclosure, and Police-Worn Body Camera Footage

Mary D. Fan

Police body-worn cameras (BWCs) are at the cutting edge of policing. They have sparked important conversations about the proper role and extent of police in society and about balancing security, oversight, accountability, privacy, and surveillance in our modern world. Police on Camera address the conceptual and empirical evidence surrounding the use of BWCs by police officers in societies around the globe, offering a variety of differing opinions from experts in the field.

The book provides the reader with conceptual and empirical analyses of the role and impact of police body-worn cameras in society. These analyses are complimented by invited commentaries designed to open up dialogue and generate debate on these important social issues. The book offers informed, critical commentary to the ongoing debates about the implications that BWCs have for society in various parts of the world, with special attention to issues of police accountability and discretion, privacy, and surveillance.

This book is designed to be accessible to a broad audience, and is targeted at scholars and students of surveillance, law and policy, and the police, as well as policymakers and others interested in how surveillance technologies are impacting our modern world and criminal justice institutions.
United States v. Nwoye (judgment)

Mary D. Fan

The case represents one of the few instances where an appellate court considered whether an affirmative defense of duress should be allowed to incorporate evidence of battered person syndrome. The defendant, convicted of conspiring with her boyfriend to extort money from a doctor, testified that her boyfriend coerced her participation through his physically and emotionally abusive behavior. He also pretended to be an FBI agent which allowed the defendant to argue she did not feel reasonably safe in reporting the extortion scheme. Also of note, the case had an unusual procedure history wherein a three-judge panel reversed its prior judgment and the final split opinion was authored by Judge (now Justice) Brett Kavanaugh.
Alaska

Jeff M. Feldman

The Law of Class Action: Fifty-State Survey 2022 is a valuable tool for both in-house and outside counsel who confront the prospect of litigating class actions in state forums with which they may have little or no experience and must make informed recommendations on removal. Succinct summaries are prepared by litigators from each of the respective states and address changes in rules and statutes as well as significant case law. These summaries are extremely useful in understanding state court rules essential to practitioners and parties alike.
Islam and Constitutional Law: Insights for the Emerging Field of Buddhist Constitutional Law

Clark B. Lombardi

This chapter connects the study of Islam and constitutional law with the nascent material on Buddhism. First, it notes the surprisingly long delay in commencing a study of the relationship between Islam and constitutional law, and upon the political and academic developments that eventually inspired the academy to focus its energies productively onto studies in this area. Second, it discusses some of the central findings produced by scholars of this field over the past twenty-five years, focusing on the Sunni world. Third, this chapter will very cautiously draw upon the contributions in this volume to highlight some ways in which patterns found in the Sunni Muslim world seem to be absent in a number of Buddhist countries. The overlaps and contrasts between these two religious traditions and their approaches to constitutional law provide many opportunities for deeper engagement.
Constitution-Making for Divided Societies: Afghanistan

Clark B. Lombardi and Pasarlay Shamshad

This chapter begins by surveying the current literature on constitutional design constitutions for divided societies and constitutional approaches to power sharing. It pays particular attention to the view that constitutions are best understood not as contracts, but rather as coordination devices. An implication of this view for constitutional design is that, in deeply divided societies, successful coordination (and thus successful constitution-writing) may be easier to achieve if the constitution deliberately leaves certain divisive constitutional questions unresolved, with the understanding that those questions will be resolved incrementally over time. Against this theoretical background, the chapter uses the history and constitutional history of Afghanistan to illuminate the challenges of developing a constitution that can coordinate politics in a deeply divided society, and it evaluates the pros and cons of different approaches to constitutional design in such contexts.
Commercial Sex and Exploitation

Judge Barbara Mack and Dana Raigrodski

Commercial sexual exploitation (CSE), including sex trafficking, mainly targets women, children, young adults (up to age 24), and individuals identifying as LGBTQ+, primarily in communities in poverty, Indigenous communities, and communities of color. Economic and social marginalization drives people into the commercial sex industry and exploitation, which in turn perpetuates that economic and social marginalization. The most targeted and marginalized populations have been doubly harmed by exploitation and by poor treatment within the legal system.

While data is limited, CSE is widespread in the sex industry in Washington State and nationally. State and national data show significant disparities based on gender and gender identity, sexuality, age, class, race, ethnicity, and Indigenous identity. Prior experiences of abuse, trauma, homelessness and alienation from one’s family increase vulnerability and risk, now exacerbated by the COVID-19 pandemic. Washington data indicates that CSE survivors are mostly female, although male and LGBTQ+ survivors are likely significantly undercounted. A significant number of those trafficked and exploited in the commercial sex industry are children and youth (up to age 24). Third-party exploiters and many sex buyers target women and girls of color, which contributes to their overrepresentation among those who are sexually exploited. Sex buyers are almost exclusively men and high-frequency buyers are often high earners. In Washington, human trafficking is deeply and historically connected to missing and murdered Indigenous women and people.

Inequities in the justice system amplify disparities for survivors of exploitation and for individuals in the sex industry generally. Washington’s justice system addresses commercial sex through overlapping frameworks: sex industry offenses such as prostitution and patronizing, commercial sexual abuse of minors (CSAM), and human trafficking. Those frameworks are often in tension with each other due to misconceptions about the pathways into the sex industry and the barriers to leaving it. Individuals in the sex industry, including the many who are exploited, have been criminalized rather than recognized as victims or survivors, and have been sanctioned disproportionately to their exploiters. Washington data shows that women and girls have been disproportionately criminalized. The data does not provide much information about the criminalization of LGBTQ+ populations, though national data suggests they are also disproportionately criminalized. Washington data also shows the disproportional criminalization of Black, Indigenous, and people of color. Exploiters, on the other hand, have often escaped prosecution or faced limited sanctions.

Increased knowledge about the impacts of sexual exploitation has led to greater recognition that sex work often masks sexual exploitation. As a result, the criminal justice system now is better equipped to identify and serve survivors. Since the early 2000s, Washington has made significant progress on issues of human trafficking and CSE, due in large part to a concerted effort to provide cross-disciplinary training to identify and respond earlier to CSE children and youth. Washington has also reduced the disproportionate gender and race impact of the justice system response to individuals in the sex industry, including victims of exploitation. Current responses focus on holding exploiters accountable, on ending the cycle of CSE-related crime, and on facilitating a way out of the sex industry by providing services and enhancing economic and social safety nets. Washington has increased the accountability of traffickers and exploiters, who are almost exclusively men, and has legislated a survivor-centered approach to sexually exploited minors and, to some extent, adults. The number of arrests and charges for trafficking, CSAM, and patronizing is increasing, while the number of prostitution arrests and charges is decreasing. Washington has made significant progress in reducing the involvement of CSE minors in the justice system, many of whom are at-risk girls, LGBTQ+ minors and young adults, boys, and Black and Brown minors and young adults. These actions are helping to alleviate the historic gender, racial, and socioeconomic inequities in the justice system.

However, many of the new protections apply only to minors. Even with new protections and better identification, lack of services and facilities statewide remains a challenge. Adult prostitution is still a criminal offense. Where no force or coercion is involved, until the recent passage of SB 5180 (effective date 7/25/21), adults had few available defenses to the charge or easily accessible ways to vacate prostitution convictions. Challenges still exist for sexually exploited people, both minors and adults, who are arrested and adjudicated for other crimes. The bulk of current research shows that most people who are sexually exploited have histories of child abuse and became involved in the sex industry as minors, when coerced into prostitution by families, by third parties or because of poverty, substance abuse, or homelessness. The lack of protective legislation and policies for 18 to- 24-year-olds constitutes a failure to recognize this reality. CSE survivors and sex workers suffer from shame and stigma imposed on them by society because of a pervasive belief that they are responsible for the harm, violence, and criminalization they suffer. Explicit and implicit biases at various decision points in the justice system can perpetuate disparities and inequities. Protective CSE laws and policies may only be available when individuals are identified as victims or survivors. Bias can affect whether or not a person is identified as a victim or survivor and at which stage of their involvement in the justice system, which means gender and race may determine outcomes.

To reduce CSE and the disproportionate gender and race impact of the justice system’s response, Washington should continue to develop multidisciplinary systems-wide responses with a focus on “upstream” prevention and a public health approach. Washington should also strive to further reduce justice system involvement for minor and adult CSE survivors, increase accountability of exploiters, provide for comprehensive continuing cross-sector education, and improve data collection on commercial sexual exploitation.
Starting at the Start: Integrating Race and Reflection for an Antiracist Approach to Professional Identity Development in the First-Year Curriculum

Monte Mills, Eduardo R.C. Capulong, and Andrew King-Ries

Drawing upon the experience of faculty from across the country, Integrating Doctrine and Diversity is a collection of essays with practical advice, written by faculty for faculty, on specific ways to integrate diversity, equity and inclusion into the law school curriculum. Chapters will focus on subjects traditionally taught in the first-year curriculum (Civil Procedure, Constitutional Law, Contracts, Legal Writing, Legal Research, Property, Torts) and each chapter will also include a short annotated bibliography curated by a law librarian. With submissions from over 40 scholars, the collection is the first of its kind to offer reflections, advice, and specific instruction on how to integrate issues of diversity and inclusions into first-year doctrinal courses.
COVID-19 Employee Health Checks, Remote Work, and Disability Law

Elizabeth Pendo

The Americans with Disabilities Act (ADA) prohibits discrimination against people with disabilities, about 61 million individuals in the U.S. (Okoro et al. 2018). The law’s protections in the workplace are especially important during COVID-19, which has worsened pre-existing disparities experienced by people with disabilities (Bureau of Labor Statistics 2020b; Brucker et al. 2015). The ADA also applies to new strategies to reduce the risk of COVID-19 infection in the workplace. This Chapter will focus on two strategies that impact individuals with and without disabilities – employee health screening, testing and vaccination policies, and new or expanded remote work programs.
Protecting the Rights and Wellbeing of People with Disabilities during the COVID-19 Pandemic

Elizabeth Pendo

The COVID-19 pandemic has exposed and exacerbated significant inequities experienced by people with disabilities. It has also emphasized the value of legal protections against discrimination based on disability. The Americans with Disabilities Act was enacted 30 years ago to eliminate discrimination against people with disabilities and ensure equal opportunity across major areas of American life (ADA, 2008). Together with an earlier law, the Rehabilitation Act of 1973 (Rehabilitation Act, 2012), this landmark civil rights law impacts a broad range of issues raised by the COVID-19 pandemic and protects a large and growing number of Americans. This Chapter focuses on application of these laws to health care and employment during the pandemic. These laws are powerful tools to protect the rights and well-being of people with disabilities, but they require robust enforcement. Enforcing agencies have provided COVID-19- specific guidance on the application of the laws to health care and employment. Further action is needed, as unresolved legal questions, gaps in protections, lack of knowledge of and noncompliance with disability rights laws, and a lack of data limit the impact of these laws. Recommendations for policymakers to ensure COVID-19 responses respects the rights and wellbeing of people with disabilities include: robust enforcement of the laws; clear and current agency guidance on how to comply with the laws; education about the requirements of the laws, especially in health care settings; and improved data collection and reporting.
Law and Literature Methodologies in Intellectual Property

Zahr K. Said
Closing the Gap: Improving Women’s Health through Research Inclusion

Anna Mastroianni and Leslie Meltzer Henry

Drawing on the ethical principles of the Belmont Report, this chapter critically examines the legacy and current policies and practices in the United States related to the inclusion of women in clinical research. Historically, protectionist policies and practices excluded women from research participation, justified by, for example, reliance on the male norm, male bias, and fears of legal liability resulting from tragic cases of fetal harm. Recognition of the ensuing harms to women’s health from exclusion and underrepresentation in research led to significant policy changes in the 1990s encouraging women’s participation in research. Although the knowledge gap in women’s health is narrowing, significant challenges remain, including the need to develop robust approaches to defining sex and gender, identifying and analyzing sex and gender differences, and acknowledging and addressing intersectionality and women’s health needs across their life spans.
Protecting the Rights of People with Disabilities

Elizabeth Pendo

One in four Americans — a diverse group of 61 million people — experience some form of disability (Okoro, 2018). On average, people with disabilities experience significant disparities in education, employment, poverty, access to health care, food security, housing, transportation, and exposure to crime and domestic violence (Pendo & Iezzoni, 2019). Intersections with demographic characteristics such as race, ethnicity, gender, and LGBT status, may intensify certain inequities. For example, women with disability experience greater disparities in income, education, and employment (Nosek, 2016), and members of underserved racial and ethnic groups with disabilities experience greater disparities in health status and access to health care (Yee, et. al, 2016). These longstanding inequities are compounded by the COVID-19 pandemic and by governmental and private responses that discriminate on the basis of disability. Legal protections of people with disabilities are governed by two key federal laws: the Americans with Disabilities Act of 1990 (ADA) and Section 504 of the Rehabilitation Act (“Section 504” or “Rehabilitation Act”). Together, these laws ensure that people with disabilities have equal opportunities in employment, in state and local services and programs, and to goods and services. The broad reach of these laws impact a host of issues raised by the COVID-19 pandemic. Enforcing agencies have provided COVID-19-specific guidance on the application of the laws in health care and in employment. However, gaps in protections as well as widespread lack of knowledge of and noncompliance with the ADA and the Rehabilitation Act limit their impact. Recommendations include: continued enforcement of the laws; clear and current agency guidance on how to comply with the laws; education about the requirements of the laws, especially in health care settings; and improved data collection and reporting.
Hollering to Be Heard: Copyright and the Aesthetics of Voice

Zahr K. Said
Climate Migration

Lauren E. Sancken and Maxine Burkett

Climate change disproportionately impacts vulnerable communities. For some of the most vulnerable, these impacts have and will continue to force them to move within and across borders, challenging international law to provide a coordinated and just means for migration. This chapter explores the phenomenon of ‘climate-induced migration,’ identifies the sociological and legal uncertainties that surround it, and suggests areas of further research to respond appropriately to the emerging crisis.