Volume 40, Number 1


Justin Sevier

Attorneys understand that presenting evidence consists of a series of strategic choices. Yet legal scholars have not studied whether jurors are sensitive to the trial strategy that underlies those choices. Do jurors question why an attorney has omitted what jurors consider the “best” evidence of some trial fact and has instead put forth weaker evidence? Do they attempt to understand the motivation behind that choice, and does that affect their legal judgments?

Six original experiments explore these questions in the context of hearsay evidence. The experiments reveal a ubiquitous finding: Jurors carefully scrutinize a party’s strategy for presenting hearsay, and this has a substantial impact on their verdicts. Moreover, jurors scrutinize an attorney’s strategic decision to proffer hearsay regardless of the identity of the legal actor, regardless of the type of case, and regardless of the type of hearsay presented. These findings demonstrate that when evaluating hearsay evidence, jurors are attuned to factors that the law may not appreciate. This has substantial implications for legal policy and practice. These findings suggest a new dimension of competency with respect to how jurors evaluate evidence. They also suggest that the normative debate over hearsay evidence—that jurors do not think critically about it—should change. Finally, the findings present a cautionary tale to trial practitioners who make ground-level decisions about hearsay evidence.
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Oskar Liivak

One of the biggest problems plaguing modern patent law is its inability to provide predictable and clear exclusive rights. We would improve clarity by simply following the patent statute and extending exclusion only to “the patented invention.” That suggestion, as reasonable as it may sound, is actually quite radical to the dominant patent law orthodoxy. It is not even clear under the dominant patent law orthodoxy what it would mean to limit patent scope to the invention, but it is generally presumed that it must lead to unacceptably narrow patents. Thus, even if it provides clarity, the invention is thought to be just too narrow a concept to provide enough protection for inventors.
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Mark K. Patterson

Intellectual property owners often seek to provide access to their patented or copyrighted works while at the same time imposing restrictions on that access. One example of this approach is “field-of-use” licensing in patent law, which permits licensees to use the patented invention but only in certain ways. Another example is open-source licensing in copyright law, where copyright owners typically require licensees that incorporate open-source software in other products to license those other products on an open-source basis as well. Surprisingly, though, the legal requirements for granting restricted access are unclear. The source of this lack of clarity is the ill-defined nature of a “license,” which is the usual means of granting access to intellectual property. Must a license be a contract? If so, then the imposition of restrictions presumably must satisfy the rules of contract formation. Or could a license be merely a unilateral commitment to allow limited access to intellectual property, as many open-source advocates contend? If so, then an intellectual property owner could grant access to its property while imposing restrictions to which a licensee has not consented, and of which the licensee might not even be aware.

This Article argues that the weight of judicial authority and sound policy support a contractual approach. A requirement that license restrictions be imposed only by contract ensures that intellectual property owners obtain both the consent of licensees to the restrictions and consideration sufficient to make the contract enforceable. As in contract law more generally, these requirements facilitate certainty, predictability, and care in entering productive relationships. Consent is especially important as intellectual property is passed downstream through the distribution chain, because it ensures that downstream market participants are aware of the limitations on their use of intellectual property. Simple notice, which some have proposed as an alternative to contract, has shortcomings that make it a poor criterion for the establishment of infringement liability.

This Article suggests, though, that in some circumstances notice of an upstream violation of a contractual license should indeed be sufficient to establish liability. Specifically, when a downstream user intentionally induces infringement by an upstream supplier, the downstream user should be liable. In such circumstances, the intent element serves as a substitute for the assent of contract law.
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Jarrod Wong

The U.S. Supreme Court’s jurisprudence interpreting the Federal Arbitration Act (FAA) is incoherent in a respect that is fundamental yet not quite captured in existing legal literature. Specifically, in determining the core question of whether any particular dispute should be resolved by arbitration under the FAA, the Court has stubbornly relied on the concept of the parties’ “intent” on the matter. “Intent,” however, is at once elusive and polymorphic. It is elusive because the parties will often not have considered whether the particular issue is arbitrable, much less who—court or arbitrator—should decide that preliminary question. It is polymorphic as rendered by the Court, which has veered from looking for evidence of actual, conscious intent to constructive intent, and also from seeking out the intent to be bound procedurally by arbitration to the intent respecting the substantive terms of the arbitration agreement. These different senses of intent can and do conflict, but the careful differentiation thereof is masked by the Court’s treatment of “intent” as a monolithic concept.
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Aaron R. Gott

Community associations are an innovative solution to myriad challenges that arise in the ownership of residential property. They solve collective action problems and fulfill desires in the common pursuit of neighborhood harmony. But when community associations go too far to conform and perfect the neighborhoods they govern, they often intrude on the fundamental liberties of individual property owners. Without intervention, they stand to threaten the rights of a substantial number of U.S. citizens where it matters most: in the home. State action doctrine provides an adequate safeguard against this threat. However, courts have struggled to hold community associations to account under the doctrine because they don’t fit squarely into the quintessential state action models. The result is seemingly faithful to the black letter of state action precedent, but not its purpose. This Note analyzes these problems and offers what may be a more faithful approach in both the letter and spirit of state action doctrine.
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