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Vol 42. No.3 Spring 2018


Gettier in a Court of Law

Robert M. Sanger ...................................................................... 409

The “Gettier Problem” has perplexed philosophers for decades.  The Gettier problem is offered as evidence that justified true belief cannot be a sufficient definition for knowledge because one could have a belief that was justified and that was in fact true, but it turns out that the justification was based on false empirical data. An incredible amount of literature had been generated by the problem.  Some researchers conclude that it is an intractable problem and others that it is not.  However, a simple methodology to unpack the solution to the problem has not been articulated.

This article will propose to use the setting of a witness in a court of law to elucidate the logical flaws in the Gettier problem.  The federal Rules of Evidence and the evidentiary basis for legal rulings on various aspects of a witness’ testimony will elucidate the problem and the solution to the problem in a simple and clear fashion.  This is a bold claim but, if it is effective, it will result in the conclusion that the problem is not based on a failure in the definition of knowledge as justified true belief but that the Gettier problem itself employs a subtle shift in the meaning of terms.  In other words, by putting claims of belief in a courtroom setting, light is shed on what counts as belief and what counts as knowledge which, in turn, will illustrate the nature of the shift in meanings between the two and illustrate that the Gettier problem does not establish that justified true belief cannot be a sufficient basis for knowledge.


State Practices of Straight Baselines Institute Excessive Maritime Claims

Dr. Waseem Ahmad Qureshi ...................................................... 421

The legal framework that regulates the mechanism of the law of the sea is the United Nations Convention on the Law of the Sea (UNCLOS).  The scope of the UNCLOS has gone well beyond defining states’ national coastal territories, and has included the protection of trade, the environment, and maritime zones in its contents.  This continued legal evolution faces emerging challenges of legal issues in sea territories, such as defining maritime zones.  More particularly, it faces difficulties in numerating the exclusive economic zone (EEZ), the unclear low-water marks (which are normally the baseline), and national jurisdictions along disparate coastal lines.  Baselines are the starting points from where all seaward territories and maritime zones are calculated.  Any landward waters before the baseline, toward land, are called internal waters and are considered within the national territories of a coastal state.  To enjoy sovereignty over these waters, and to maintain historical fishing and other rights, nations mark their boundaries as baselines over these waters.  Unsurprisingly, these baselines customarily use natural low-water marks over coastal regions as dividing lines between internal waters and seaward waters.  These lines have been traditionally marked in geometrical patterns in accordance with the general direction of the coasts, which have been customarily drawn in straight lines—contrary to the general rule of low-water marks—to denote national boundaries.  To enjoy the economic benefits of internal waters and increase their national territories, coastal states have started to generously mark straight baselines along their coasts. Consequently, countries with known or unknown parallel interests over internal waters and maritime zones contest these demarcations.  For these reasons, this paper will set out the legal mechanisms and the complex issues regarding the demarcation of baselines, and will more particularly explore excessive demarcation of straight baselines in state practices.


Lies, Liars, and Lawyers as Legislators: An Argument Towards Holding Attorneys Accountable for Violating The Model Rule of Professional Conduct 8.4(c) Whilst Acting In A Legislative Role

Eliot T. Tracz ............................................................................ 451

This essay looks at Model Rule of Professional Conduct 8.4(c) (often referred to hereafter simply as the Dishonesty Rule) and questions its scope and authority when applied to statements made by elected legislators who are lawyer-legislators.  In using the term “lawyer-legislator,” I specifically mean an elected member of a state or federal legislative body who holds a law license, though the license is not necessarily being used in the capacity as a legislator.  The fact that the lawyer-legislator is not acting in a professional capacity becomes important later on. Section II provides an introduction to Model Rule of Professional Conduct 8.4(c).  Section II begins by discussing the origins and breadth of the ABA Model Rules of Professional Conduct.  Section III addresses how the Model Rules ought to apply to lawyer-legislators.  Section IV of this essay examines objections to using the Dishonesty Rule to force accountability among lawyer-legislators.  Finally, Section V discusses the benefits of increased enforcement of the Dishonesty Rule against lawyer legislators.



Enhanced Damages: Historically, Recently, and Why Willfulness is not a Prerequisite

 Daniel Fanning ........................................................................ 477

This Note provides a history of enhanced damages leading to the enactment of 35 U.S.C. § 284, including an overly complex judicial doctrine for the application of the statutory grant of enhanced damages, and finishes with an explanation of why this doctrine should not include a requirement for a finding of willfulness.  Part II covers the initial history and development of the doctrine of enhanced damages, including the statutory framework and the courts’ interpretation of that framework.  Part III reviews two recent cases that drastically changed the award of enhanced damages.  Finally, Part IV expands on both the history and recent decisions while explaining that a finding of willfulness should not be a prerequisite for a court to exercise its statutory discretion to enhance damages.


The Public Interest Factor in Pharmaceutical Patent Infringement Cases

Camille Sizemore Halterman....................................................... 499

This Note explains why courts should not only pay special attention to the public interest factor when determining injunctive relief in pharmaceutical cases, but also why they should consider the rights of the patentee to favor the public interest over the convenience of cheaper drugs to the public.  Accordingly, Part II of this note provides the history of the Patent Act and the statutory guidelines behind patent enforcement.  This section also provides a layout of how the grant and denial of patent injunctions were decided prior to 2006 and the decision in eBay v. MercExchange. This part of the note likewise explains how the court reached its holding in eBay v. MercExchange and how this decision altered the long-used “categorical approach.”  Part II also addresses the latest trends in injunctive relief for pharmaceutical companies and the different types of analysis applied to the public interest factor of the four-factor equitable test.

Part III of this note discusses the various arguments in how the public interest factor should be applied, as well as the discrepancies in how the factor has been applied throughout the court system over the years.  Courts are split on how the public interest is served in granting permanent injunctions in pharmaceutical cases.  Part IV specifically addresses the public interest factor, and argues the courts need to place more emphasis on the public interest factor in pharmaceutical cases than in injunctions for any other industry.  Part IV also argues the public is best served when the court grants permanent injunctions in pharmaceutical patent infringement cases.


Personal Jurisdiction and the Internet: A Shift in the International shoe Analysis for Users of E-Commerce and Peer-to-Peer Websites

Jayci Noble ............................................................................... 521

This Note provides insight into the history of personal jurisdiction and how it has evolved over time, particularly as online Internet commerce and peer-to-peer Internet communication has become more prevalent.  Next, this Note discusses the nature of online selling platforms such as Etsy and the challenges that these reputable online platforms present to sellers conducting business through their websites.  Finally, it suggests that the standards for minimum contacts have been set so low, that now a single, unintentional contact could create liability.  This would not provide the fairness that the International Shoe personal jurisdiction test emphasizes as a crucial point in the analysis.  This Note will propose that moving forward, courts should be willing to shift their perspectives more heavily towards the fair play and substantial justice prong of the personal jurisdiction test, in order to provide more flexibility for unique defendants.


“You Don’t Have to Call Me Darlin, Darlin”: How Evidentiary Proof Models Have Confused Courts in Employment Discrimination Cases

Kristen Southworth .................................................................... 539

Oritz v. Werner Enter. Inc exemplifies the complexity and uncertainty plaguing employment discrimination law.  Widespread confusion exists, and courts, scholars, and attorneys have expressed the need for a unified method of analyzing such cases.  Despite acknowledgement of the disunity, Congress and courts have failed to provide an adequate alternative.  Rather, in attempting to do so, Congress only increased the confusion and asymmetry among the courts.  Ortiz began to rectify the situation by bringing into focus the ultimate issue that must be addressed and minimizing the use of frameworks that muddle the issue. 

This Note argues that the Supreme Court should adopt the Ortiz holding and clarify that evidence is evidence and should not be sorted, labeled, and applied by its perceived place in a direct or indirect proof framework.  By “putting evidence into a box” the courts are perpetuating unnecessary complexity, neglecting the fundamental question, and disproportionally “squeeze[ing]-out” plaintiffs’ claims.  Part II of this article beings with a historical overview of employment discrimination law and the origin and evolution of the direct and indirect frameworks.  It then narrows its focus to the Seventh Circuit and examines case law dealing with the direct evidence methods and indirect evidence methods.  This section then analyzes Ortiz and follows with a brief overview of the variety of interpretations of the direct and indirect methods employed by courts outside of the Seventh Circuit.  Lastly, Part III of this article suggests a solution: the Supreme Court should adopt the Seventh Circuit’s position in Ortiz and affirm the ultimate causation question in employment discrimination cases, which asks whether discriminatory animus caused the adverse employment action.