Legal Studies Research Paper Series

(From Legal Scholarship Network: Legal Studies Research Paper Series, University of North Carolina RSS)

Jevic Holding Corp

Jonathan C. Lipson and Melissa B. Jacoby
This is the merits brief submitted by 19 law professors in support of Petitioners in In re Jevic.

-December 20, 2016

Brief Amici Curiae of Intellectual Property Professors in Support of Petitioners

Timothy R. Holbrook, Margo A. Bagley, Andrew Chin, Lucas Osborn and Jason Rantanen
The Supreme Court has made clear that, absent a clear expression from Congress, U.S. laws do not apply extraterritorially. The Court has noted that the presumption against extraterritoriality has particular force in the context of patent law. The Federal Circuit has given short shrift to this argument. This brief argues that this case presents the opportunity for the Court to strike the appropriate extraterritorial reach for a U.S. patent under 35 U.S.C. § 271(f) and to signal to the Federal Circuit to take the presumption against extraterritoriality seriously. On the merits, the brief offers two approaches to answer this question. The first, following the typical approach to extraterritoriality, argues that the Federal Circuit’s interpretation was unnecessarily broad in light of the presumption against extraterritoriality. Second, the brief offers an alternative approach for patent law, drawing on academic literature, criminal law, and trademark law: courts should consider the potential for conflicts with foreign law in assessing whether liability for patent infringement is appropriate.

-December 20, 2016

United States -- Amici Curiae Brief of Scholars of Criminal Law, Federal Courts, and Sentencing in Support of Petitioner

Carissa Byrne Hessick, Leah M. Litman and Douglas A. Berman
Section 4B1.2(a)(2) of the U.S. Sentencing Guidelines is identical to statutory language that the U.S. Supreme Court found to be unconstitutionally vague in Johnson v. United States. The Supreme Court subsequently held that the ruling in Johnson was retroactive. This brief explains why the U.S. Sentencing Guidelines are subject to vagueness challenges and why any ruling that a guideline is unconstitutionally vague should be made retroactive.

-December 20, 2016


Robert P. Mosteller
This article examines the North Carolina Innocence Inquiry Commission in its first decade of operation. The Commission, which was created in 2006 by the North Carolina legislature, is unique in the nation for its structure and charge to investigate and find cases of factual innocence among convicted felons. This article examines the seven cases handled by the Commission where innocence has been found. In them, nine men have been freed, each after serving decades in prison, in murder and rape cases that the evidence developed by the Commission showed they did not commit. The Commission has demonstrated that its general inquisitorial model with broad access to evidence, investigative tenacity and accumulated expertise, and neutrality provide important benefits in finding and documenting evidence of innocence. These seven cases provide fascinating examples of mistakes in the initial investigation and dogged tunnel vision that focused on finding incriminating evidence to convict the incorrectly selected prime suspect(s). They exhibit an abundance of false statements by informers and erroneous tips by reward seekers, erroneous forensic evidence, false confessions, and mistaken eyewitness identifications. The Commission has enjoyed cooperation from law enforcement and prosecutors, but it has also had to overcome resistance by officials defending earlier flawed investigations and prosecutions. In these seven cases, the process succeeded. The examination of these cases and the Commission’s processes show an important and successful new model for rectifying the systemic errors that produce wrongful convictions and evade correction through ordinary adversarial procedures. The Commission’s successes and the lessons learned from its operation deserve examination by other jurisdictions dealing with the persistent failures of our criminal justice system to avoid convicting and incarcerating defendants who are factually innocent.

-December 20, 2016

The Honoré-Waldron Thesis: A Comparison of the Blend of Ideal-Typic Categories of Property in American, Chinese and Australian Land Law

Paul T. Babie, John V. Orth and Charlie Xiao-chuan Weng
Using a theoretical perspective drawing upon established scholarship, this article develops a framework for comparing the blend of private, state/public, and common property in divergent jurisdictions. The article tests the framework it develops through an analysis of the real property law of China, the United States, and Australia. China is selected not only for its relevance on the world stage and in order to provide an understanding of that legal system for a broader audience, but also because it demonstrates the role of private property in a civilian system of law, one otherwise thought to be communist-socialist. The United States and Australia both serve as common law examples of systems in which it might be thought that private property predominates, but in which state and public property mix in significantly different ways. The article concludes that whatever one might think about the political-economic makeup of their broader societal contexts, the legal systems of China, the United States and Australia each exhibit a blend of the ideal-typic forms of property.

-December 20, 2016

Vagueness Principles

Carissa Byrne Hessick
Courts have construed the right to due process to prohibit vague criminal statutes. Vague statutes fail to give sufficient notice, lead to arbitrary and discriminatory enforcement, and represent an unwarranted delegation to law enforcement. But these concerns are hardly limited to prosecutions under vague statutes. The modern expansion of criminal codes and broad deference to prosecutorial discretion imperil the same principles that the vagueness doctrine was designed to protect. As this Essay explains, there is no reason to limit the protection of these principles to vague statutes. Courts should instead revisit current doctrines which regularly permit insufficient notice, arbitrary and discriminatory enforcement, and unwarranted delegations in the enforcement of non-vague criminal laws.

-December 20, 2016

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