Volume 87

North Carolina Common Law Parol Evidence Rule

By Caroline N. Brown

This article evaluates the application of the parol evidence rule by the courts in North Carolina. The article explores the tortured and murky history of the rule, to which many of the difficulties associated with its application are surely attributable. Although the North Carolina courts do a fine job with certain groups of cases, including those with merger clauses, this article points out the continuation and exacerbation of an earlier… READ MORE

87 N.C. L. Rev. 1699 (2009)

The Origins of an Independent Judiciary in North Carolina, 1663-1787

By Scott D. Gerber

An independent judiciary is one of the great American contributions to constitutional theory. This Article traces the origins of that idea in North Carolina, one of only a small handful of states to adopt it prior to the Federal Constitution of 1787. Although the North Carolina judiciary did not become independent until the state’s first constitution in 1776, the almost continuous conflict between the executive and the assembly over control… READ MORE

87 N.C. L. Rev. 1771 (2009)

Wind Over North Carolina Waters: The State’s Preparedness to Address Offshore and Coastal Water-Based Wind Energy Projects

By Joseph J. Kalo & Lisa C. Shiavinato

Nationally, there is great interest in placing wind turbines in coastal and ocean waters. At this time, no such facilities exist. However, major projects are either underway or being planned for siting on the east coast. The ocean waters off the coast of North Carolina and the waters of its large internal sounds are attracting interest because of their high wind resource potential. Therefore, the State needs to be adequately… READ MORE

87 N.C. L. Rev. 1819 (2009)

The Unmerry Widow: Spousal Disinheritance and Life Insurance in North Carolina

By Jeffrey S. Kinsler

In spite of our nation’s long-held public policy of protecting surviving spouses, some people purposely disinherit their spouses. For centuries, North Carolina more or less tolerated intentional spousal disinheritance. In 1959, in an effort to protect surviving spouses from deliberate disinheritance, North Carolina adopted a “right of dissent” statute that authorized a surviving spouse to renounce the decedent spouse’s will and receive a statutorily prescribed share (ranging from one-sixth to… READ MORE

87 N.C. L. Rev. 1869 (2009)

Falling Out of Love with an Outdated Tort: An Argument for the Abolition of Criminal Conversation in North Carolina

By Caroline L. Batchelor

Assume Bill has met Robin on the Internet. He portrays himself as a single doctor. After the tenth date Robin and Bill have sexual relations. Can Bill’s wife sue Robin? Absolutely! . . . Bill has signed a separation agreement that says he and his wife can live as if unmarried in all respects. It is signed, notarized, and drafted by attorneys. It doesn’t include a third party waiver. Bill… READ MORE

87 N.C. L. Rev. 1910 (2010)

Mapping the World Wide Web: Using Calder v. Jones to Create a Framework for Analyzing when Statements Written on the Internet Give Rise to Personal Jurisdiction

By Alexander B. Punger

In March 2007, Kathy Sierra, a well-known game developer and blogger, was scheduled to present at the Etech conference in San Diego. Instead of leading her workshop, Sierra locked herself inside her home and was afraid to leave. Sierra cancelled her appearance at the conference because she was the victim of a harassment campaign conducted over the Internet. Her tormenters sent death threats, posted threatening images, and published Sierra’s personal… READ MORE

87 N.C. L. Rev. 1952 (2009)

Holding on to Fundamental Rights is No Walk in the Park: Challenging the Constitutionality of the Park Ban Upheld Standley v. Town of Woodfin

By Emily E. Reardon

Imagine the perfect day when the sun is shining, the air is cool and clear, and the only plans for the day involve walking through town to attend a cookout with friends in the middle of the public park. Or maybe picture the day of the town’s long-awaited baseball tournament, when all town citizens are welcome to travel into the park and enjoy the open spaces and atmosphere with fellow… READ MORE

87 N.C. L. Rev. 1979 (2009)

Frontiers in Empirical Patent Law Scholarship

By Andrew Chin

Recent proposals to amend the Patent Act and the legal academy’s growing interest in empirical methods have made the policy analysis of patent law a timely topic for colloquia and symposia. Empirical scholarship plays a vital role in these discussions, as it tests the theories, hypotheses, and characterizations that underlie legal rules and institutions, as well as proposals for their reform Patent scholars tend to have backgrounds and interests that… READ MORE

87 N.C. L. Rev. 1321 (2009)

Keynote Address

By Hon. S. Jay Plager

In thinking about the range of issues we confront in empirical legal research, including research into patent law and policy, it is well to begin with fundamentals.  There are three inquiries that define what scholarship into the human condition cares about—knowledge, conduct, and governance.  Typically, scholarship regarding patent law and policy is concerned with conduct—who has the right, and under what circumstances, to make, use, or sell an invention that… READ MORE

87 N.C. L. Rev. 1323 (2009)

The Political Economy of the Patent System

By Jay P. Kesan & Andres A. Gallo

In recent years, many reform proposals have been presented in Congress for changing the patent system in the United States.  Most of these proposals have been normative in nature and based on overcoming the many perceived shortcomings of the United States Patent and Trademark Office’s (“Patent Office”) performance.  Nonetheless, actual legislative reforms have failed to materialize. In this Article, we claim that in order to understand the chances of success… READ MORE

87 N.C. L. Rev. 1341 (2009)

Copying in Patent Law

By Christopher A. Cotropia & Mark A. Lemley

Patent law is virtually alone in intellectual property (IP) in punishing independent development.  To infringe a copyright or trade secret, defendants must copy the protected IP from the plaintiff, directly or indirectly.  But patent infringement requires only that the defendant’s product falls within the scope of the patent claims.  Not only doesn’t the defendant need to intend to infringe, but the defendant may be entirely unaware of the patent or… READ MORE

87 N.C. L. Rev. 1421 (2009)

Patents and Growth: Empirical Evidence From the States

By Glynn S. Lunney, Jr.

In the Uruguay Round, negotiators for the United States persuaded its trading partners to incorporate uniform minimum standards for the protection of intellectual property rights (“IPRs”) directly into the General Agreement on Tariffs and Trade.  Although individual countries may adopt higher standards for protection, the agreement on Trade Related Aspects of Intellectual Property Rights (“TRIPs”) imposed on all countries the fairly high standards of protection then existing in only a… READ MORE

87 N.C. L. Rev. 1467 (2009)

University Software Ownership and Litigation: A First Examination

By Arti K. Rai, John R. Allison & Bhaven N. Sampat

Software patents and university-owned patents represent two of the most controversial intellectual property developments of the last twenty-five years.  Despite this reality, and concerns that universities act as “patent trolls” when they assert software patents in litigation against successful commercializers, no scholar has systematically examined the ownership and litigation of university software patents.  In this Article, we present the first such examination.  Our empirical research reveals that software patents represent… READ MORE

87 N.C. L. Rev. 1519 (2009)

Of Trolls, Davids, Goliaths, and Kings: Narratives and Evidence in the Litigation of High-Tech Patents

By Colleen V. Chien

While each patent dispute is unique, most fit the profile of one of a limited number of patent litigation stories.  A dispute between an independent inventor and a large company, for instance, is often cast in “David v. Goliath” terms.  When two large companies fight over patents, in contrast, they are said to be playing the “sport of kings.”  Some corporations engage in “defensive patenting” in order to deter others… READ MORE

87 N.C. L. Rev. 1571 (2009)

Search for Tomorrow: Some Side Effects of Patent Office Automation

By Andrew Chin

The United States Patent and Trademark Office’s (“Patent Office”) move to a paperless search facility and the public’s growing involvement in prior art search have recently elevated the role of search engine technology in the patent examination process.  This Article reports on an empirical study that examines how this technology has systematically changed not only how patent references are found, but also which patents are cited as prior art. Publicly… READ MORE

87 N.C. L. Rev. 1617 (2009)

Patent Citation Networks Revisited: Signs of a Twenty-First Century Change

By Katherine J. Strandburg, Gábor Csárdi, Jan Tobochnik & Péter Érdi & László Zalányi

This Article reports an empirical study of the network composed of patent “nodes” and citation “links” between them.  It builds on an earlier study in which we argued that trends in the growth of the patent citation network provide evidence that the explosive growth in patenting in the late twentieth-century was due at least in part to the issuance of increasingly trivial patents.  We defined a measure of patent stratification… READ MORE

87 N.C. L. Rev. 1657 (2009)