Faculty News

Professor Abrams adds name to amicus brief for SCOTUS same-sex marriage case

Professor Jamie Abrams is one of 74 family law scholars who signed an amicus brief for the U.S. Supreme Court’s 6th Circuit same-sex marriage case, expected to start in April. The signatories argue against the same-sex marriage bans in Kentucky, Michigan, Ohio and Tennessee.

Abrams said the brief includes residual research and writing support provided by Brandeis students from the underlying 6th Circuit brief last summer.

Below is a summary of the brief signed by Abrams:

Kentucky, Michigan, Ohio, and Tennessee ban same-sex couples from marriage and deny recognition to marriages that same-sex couples enter into elsewhere (“marriage bans”). In defending the marriage bans, these states and their amici (collectively “ban defenders”) rely on two primary arguments: first, that a core, defining element of marriage is the possibility of biological, unassisted procreation; and second, that the “optimal” setting for raising children is a home with their married, biological mothers and fathers. But the family laws that govern marital and parental relationships in these very states, as well as in the rest of the country, tell a different story.

No state has ever limited marriage to couples who can demonstrate that they have procreative capacity and desire. Instead, in these four states and elsewhere, the state family laws that govern marriage recognize that couples marry for many reasons, including public acknowledgement of their private choice to share their lives with someone they love and to enter a legally binding union that confers hundreds of mutual rights and obligations. These rights and obligations help the couple care for each other, as well as their children (if any), regardless of how those children were conceived.

State family laws that govern the parent-child relationship also refute the “optimal parenting” argument. These laws do not privilege parenting by biological parents who parent in “gender differentiated” ways over other forms of parenting. States afford full parental rights to legal parents who have no biological or genetic ties to a child. In many circumstances, a biological or genetic tie is neither necessary nor sufficient to establish a legal parent-child relationship. State family laws also reject once prevalent notions that a parent’s sex or gender is legally relevant to determinations of a child’s best interests.

Moreover, states exclude no other couples from marriage based on a belief that they will provide
a suboptimal setting for raising children. Finally, state family laws recognize that it is unconstitutional to punish children to influence the behavior of adults. Yet the marriage bans do just this. They deprive the children of same-sex couples of valuable governmental, social, and personal benefits in the name of incentivizing others to be “ideal” parents or to have more children.

The marriage bans cannot stand.

Professor Cross working with US Patent Office on Intellectual Property issues

Intellectual Property was named as one of four “Red Hot” practice areas in Robert Denney Associates Inc.’s 26th annual report, “What’s Hot and What’s Not in the Legal Profession.”

Brandeis Professor John Cross is well positioned, then, to get started on his sabbatical work in the fall.

Cross will spend that time working with the United States Patent and Trademark Office examining the broad issue of the attorney-client privilege and how it applies to patent attorneys and agents. He is also working with intellectual property group AIPPI to determine how to best resolve the underlying issues surrounding this relationship.

As part of this effort, Cross is writing a series of working papers. The first, dealing with the Federal Circuit’s Therasense decision, is complete, and a second on legislative jurisdiction under the IP Clause, treaty power, Commerce Clause and power to regulate federal courts, is underway.

Cross takes a bit of an unorthodox approach to Intellectual Property Law – looking at it through a competitive competition law lens scope.

“I come at it from competitive law; that all intellectual property is at its core a limit on competition. It looks very different than if you just look at it as intellectual treaty a patent or copyright as a property rights. I think of it as a way to limit competition and whether or not we should limit it,” he said.

This angle, however, gets tricky as intellectual laws differ greatly. For example, in the West, it’s all about the inventors and protecting them and their ideas. In Asia, Cross said, they think of intellectual property as good for society as a whole rather than just protecting the inventor.

This is where some philosophy kicks in. If we think about the invention as cheap and easy to copy – especially in the digital age – then why wouldn’t we?

“The answer is if we do that, in theory, people will no longer create,” Cross said. “We need to encourage culture, knowledge and innovation. In the United States, we are beyond the industrial age. Our growth now comes from innovation and new ideas.”

We are now in an information economy, he adds, which is much harder to regulate and impossible to keep up with. It also explains why it’s a “Red Hot” legal area.

Attorney-client privilege project

As part of his scholarship, Cross has spent the past seven years working on an attorney-client privilege project. In February, Cross was part of a roundtable discussion for the Global Intellectual Property Academy presented by the Patent Office’s Office of Policy and International Affairs. He has also presented on this issue in Seattle, Paris, Hong Kong and Toronto and as a result works closely with both the U.S. and Japanese patent offices.

The focus of this work, Cross said, stems from a debate over whether or not patent agents (legal counsel qualified to practice before the Patent and Trademark Office, but not before a court) qualify for attorney-client privileges. The answer is inconsistent throughout the world, which presents a challenge as economies become more global.

Cross personally believes that patent agents should have the attorney/client privilege and also thinks there should be some sort of international treaty to deal with inconsistencies.

“I am trying to encourage full disclosure for the inventor to reveal everything so they’re better protected,” he said. “If a client holds anything back, that patent can get struck down.”

The only meaningful difference, he adds, between a patent agent and an attorney is that the former is limited to obtaining the patent.  She can’t litigate, or provide advice on patent licensing.

In addition to devoting his sabbatical to this topic, Cross will present on other intellectual property/competition law topics at a conference in July in China, as well as a conference in September in South Africa.

Professor Levinson's comments featured in WalletHub’s 2015’s Hardest Working Cities study

Professor Ariana Levinson was featured in WalletHub’s recent study examining 2015’s Hardest Working Cities in America.

Levinson provided insight on a number of questions, including:

  • Why do Americans work so much more than their counterparts in Europe?
  • How have worker hours or productivity changed during the recession and recovery?
  • What is the ideal number of hours to work each week?

Levinson said a number of factors have contributed to Americans working more than their European counterparts, including U.S. law not being in compliance of the requirements of the International Labor Organization (which guarantees all workers three weeks of paid vacation per year of service).

“Additionally, the U.S. federal wage and hour law, which guarantees overtime for any hours worked over 40 per week, is not effective for a couple of reasons. One reason is that the exemption level remains at $455/week ($23,660 per year), which means many workers who do not have very high pay are considered executive, administrative, or professional, and the 40 hour requirement does not apply to them,” she said.

Levinson told WalletHub that since many households are now dual income and that increased workloads for both parents takes time away from the importance of parenting, an ideal aspiration would be 30 hours a week with a living wage.

She also opined that the minimum wage should be raised to a living wage and paid vacation and paid sick leave should be guaranteed.

Professor Sweeny quoted in The Atlantic's story on South Korean adultery laws

Professor Sweeny quoted in The Atlantic's story on South Korean adultery laws

Professor JoAnn Sweeny was recently quoted in an article published in The Atlantic, titled "When Adultery is a Crime: South Korea has scrapped a law against infidelity that arose from the chaos of the Korean War."

Prior to last week, adultery was a crime in South Korea, carrying a prison sentence of up to two years. 

Sweeny discusses the sexual and gender dynamics of adultery bans in different societies, stating:

"(In the U.S., the laws) were concerned with women cheating on their husbands and having kids that weren’t theirs, and then [the husbands] taking care of kids that weren’t theirs ... Adultery could only happen if the woman was married. If the man was married but the woman wasn’t, that wasn’t adultery (but rather the lesser offense of 'fornication')."

Sweeny has written about the legal systems in many states and how they treated male and female infidelity differently until the 1950s. The article said that as of 2013, at least 18 states still had adultery laws in place, though they're rarely enforced.

The complete story is available on The Atlantic's website.

Professor Powell to lead Oberlin College class via Skype

On March 9 at 3 p.m., Brandeis Professor Cedric Powell will lead a class of students from Oberlin College (Ohio) via Skype. The class, Politics 409 (Public Education, Policy and Law), is taught by Oberlin’s President, Marvin Krislov.

Powell is an Oberlin alum.

The class is doing a case study on the Jefferson County Public School System, with students working on policy issues from a variety of different viewpoints based on constituent interests, such as Superintendent and School Board; State Commissioner of Education; Jefferson County Teachers Association; NAACP; CLOUT; and the Black Alliance for Educational Options, a pro-charter group.

Professor Powell will discuss his views on the Parents Involved in Community Schools case (2007), part of which was based on the Jefferson County Public School System (the other system was in Seattle). He has written several articles on the topic and President Krislov came across them while preparing materials for the class, before realizing Powell is an alum who also happens to live in Louisville.

Krislov, a native of Lexington, served as VP and General Counsel of the University of Michigan before assuming the Oberlin presidency. He was instrumental in guiding U of M’s Supreme Court litigation, which ultimately resulted in the Court’s upholding of the school’s affirmative action admissions policy in the Grutter decision in 2003.

Professor Sweeny’s article cited in Kentucky Supreme Court’s teenage sexting case

The Kentucky Supreme Court heard arguments last week for a case involving the relatively new issue of teenage sexting. According to the Louisville Courier-Journal, a 15-year-old boy sent two nude photos of himself to his 13-year-old girlfriend’s phone. She responded with a photo of herself.
The girl’s parents discovered the photos and requested a warrant from the Woodford Circuit Court. The boy was subsequently charged with sexual misconduct, a misdemeanor, and possession of child pornography, a felony.
As part of his defense, the boy’s attorneys have extensively cited U of L Law Professor JoAnne Sweeny’s recently published article on the potential constitutional challenges to the prosecution of teenagers under child pornography laws because they have "sexted" each other nude or erotic photos of themselves.
In her article, Sweeny argues that sexting teenagers should have freedom of expression protection under the First Amendment since there was no harm inherent in the creation of the content. Conversely, child pornography is not protected under the First Amendment because child pornography images are the product of child abuse.
According to Sweeny, “[t]hat’s why it’s child pornography is illegal - to protect children from abuse. For sexting teens, the photographed acts are consensual and there is no adult manipulation. This situation between the two teens in this case is not the same thing as child pornography and the harm inherent in child pornography simply doesn't exist here,” Sweeny said. “This is an inappropriate charge. You’re charging the group that was meant to be protected by the law. It’s meant to protect children but that’s who you’re taking to court.”
Sweeny said this case is even more frustrating because only the boy is being charged. She adds that, until now, no state or federal appellate or supreme court has ever squarely dealt with a freedom of expression claim in a case where sexting teens have faced child pornography charges.  An important precedent will therefore be set by the Kentucky Supreme Court.
“The way the law is written now, if a teen takes a naked self image and shares it with no one, they’re still in possession of child pornography. The child pornography laws that exist were passed in the 1970s or 80s. Kids didn’t even have cameras then,” Sweeny said. “All you need is one zealous prosecutor and these teenagers could become registered sex offenders. The law shouldn’t be left open to such an absurd result.”
According to Sweeny's article, under the current law, approximately one-third of all teenagers in Kentucky could be charged with a felony sex offense.
There is no date set on the ruling for B.H. v. Kentucky but the Supreme Court of Kentucky usually rules three to four weeks after oral arguments.

The Diversity Committee Presents: Our Country, Appalachia, and The Never-Ending Path To Poverty

On Tuesday, March 3, the Diversity Committee will host a discussion on the current state of poverty in America and the role of law in promoting or hindering economic equality. Although the program will discuss the intersection of poverty and the law from a national perspective, the emphasis will be on the Kentucky region (Louisville and Appalachian) in hopes that it will allow students to truly understand the realities of poverty within our own communities. The program will include a diverse group of panelist from the fields of law, economics, and public interest work. Students with a desire to work with indigent clients through practice public interest law or that will be applying for one of the summer public interests fellowships are strongly encouraged to attend. Lunch will be provided! 


Tuesday, March 3, 2015

Cox Lounge

12-2 PM


Suggested Readings:

 “New IRS Data Gives Fresh Look at Income Inequality,” available at http://www.marketwatch.com/story/new-irs-data-give-fresh-look-at-income-inequality-2015-01-29/print


“Robert Reich:  10 ways to close the inequality gap,” available at  http://www.salon.com/2014/05/13/robert_reich_10_ways_to_close_the_inequality_gap_partner/


“A New Majority Research Bulletin:  Low Income Students Now a Majority in the Nation’s Public Schools,” available at:


Professor Weaver brings international experiences back to the classroom

Professor Russ Weaver was a speaker at Duke Law Journal’s 45th Annual Administrative Law Symposium on Feb. 6. He spoke specifically on Appointment Politics alongside Steven Friedland, a professor of law and senior scholar at Elon University School of Law.   
This appearance followed closely on the heels of Professor Weaver’s speech at Washington and Lee University’s 2015 Lara D. Gass Symposium, held in late January in Lexington, Virginia. This year's symposium topic was "Cybersurveillance in the Post-Snowden Age."

These two events are just the tip of the iceberg that is Professor Weaver’s busy travel schedule.

In March, he’ll participate in a symposium in Paris, France, on the topic of government transparency.

He is also involved in a symposium on April 1 on cybersurveillance at the Université Aix-Marseille, in Southern France.

On April 17, Professor Weaver will participate in a panel called “What is (should be) the scope and limitation of police power to track suspects?” as part of Texas Tech’s 9th annual Criminal Law Symposium. The event will feature distinguished legal scholars discussing the application of the Fourth Amendment in today’s digital world.

Toward the end of April, Professor Weaver will speak on media and free expression at an event in Budapest, Hungary.

And in May, he’ll head to the University of Lisbon (Portugal) to teach for a week, as he does every year.

His schedule remains full through June and July, with discussion fora in Paris (arranged by Professor Weaver); a privacy discussion in Sorbonne, France; discussion fora on administrative law in Luxembourg; a speech in Mainz, Germany, on free speech issues; and a presentation on the freedom of expression in Boca Raton, Florida.

This sort of schedule is nothing new for Professor Weaver. Last year, for example, he logged 148,000 miles. He said it’s important to keep up such a pace, as it connects him to prominent scholars around the world and allows him to learn different cultural perspectives on his area of focus.

The specific area of cybersurveillance, for example, has changed radically in just the past five years because of the advancement of technology. Professor Weaver said it’s important to expand his angle on the topic to keep up with these changes and anticipate societies’ adaptations.

He brings these diverse cultural interpretations back to his classroom. Such travel and participation, he said, informs his teaching and is professionally enlightening.

Professor Hall presenting at UNLV's 10th International Conference on Contracts

Professor Timothy Hall is headed to Las Vegas Feb. 27 and 28 to speak at UNLV’s 10th International Conference on Contracts (KCON 10).

His presentation will focus specifically on fitness tracker terms of service contracts.

The conference is hosted by UNLV's William S. Boyd School of Law and includes contracts scholars and teachers at all experience levels.

Incoming Editorial Board selected for the University of Louisville Law Review

The Editorial Board of the University of Louisville Law Review is pleased to announce their successors for Volume 54:

   Editor in Chief: Daniel Reed

   Senior Articles Editor: Emily Meyer

   Senior Notes Editor: Emily Irwin

   Articles Editors: Vlad Bursuc, Megan Diffenderfer, Tyler Larson

   Notes Editors: Lindsey Boyd, Kari DiCecco, Katherine Vail

   Articles Selection Editor: Carolyn Purcell

   Online Content Editor: Andrew Weeks

   Executive Editor: Dallas Selvy

   Managing Editor: Ben Jakubowicz

The University of Louisville Law Review is the principal law review publication of the Louis D. Brandeis School of Law at the University of Louisville. Managed exclusively by students, the Law Review is a scholarly publication devoted to developing the law, evaluating legal institutions and analyzing issues of law and public policy. The Law Review features student notes and articles written by nationally and globally recognized experts. The Editorial Board and Staff of the Law Review publish three issues per year and have editorial control over its content.

Congratulations to the newly minted Editorial Board for Volume 54!