“Two Countries Separated by the Same Language”: Comparing Marriage under U.S. Law and English Common Law

The Law From Here

By Divya Maharaj

Welcome to another installment of The Law From Here, our globe-trotting series that gives you a chance to get to know GSU Law’s LLM students. Like many of our LLM students, Divya Maharaj has considerable experience researching the law of another country–here, the Caribbean twin-island nation of Trinidad and Tobago. Divya has an LLB from the University of London and an LLM from Staffordshire University, in addition to being a recent graduate of GSU’s LLM program. In Trinidad and Tobago, she spent some time working under the nation’s former attorney general before working as an independent attorney. In today’s very special The Law From Here, Divya takes a look at some of the different ways that English Common Law and U.S. Way treat marriage.

George Bernard Shaw said, “England and America are two countries separated by the same language”. Before I immigrated to the US, I had very little idea about how extensive this “separation” is because it goes much beyond language and extends even to the sphere of the legal systems which originate from the same English Common Law (ECL). As a practitioner and student of law, the more comparative research I conducted in this sphere, the more I realized the extent of this “separation”. However, before going any further, here is a disclaimer. Although Trinidad and Tobago is my country of origin, the legal system there is almost entirely based on ECL, and in addition, I am an English-educated attorney and hence when it comes to law, England is my home country and hence the prologue.

Divya Maharaj

Amongst the many major differences, one that I stumbled upon recently was in the domain of Family Law–more precisely in the unpleasant arena of Divorce Law. Divorce in England and Wales, and by extension in Trinidad and Tobago as well, is guided by the Matrimonial Causes Act (MCA) 1973 pt 1, s 1(2), wherein, divorce can only be considered when a marriage has irretrievably broken, which again is determined if one or more of the following facts are satisfied: (1) respondent committed adultery; (2) respondent’s behavior made living together impossible; (3) respondent deserted for at least a continuous two year period; (4) the parties had at least two years of continuous separation if they have consented to a decree of separation; or (5) the parties had at least five years of continuous separation if there was no decree of separation. Even with the last two clauses, the law there is mostly a fault-based one and the divorce petition statistics also show that a vast majority of the petitioners rely upon fault as the ground for divorce, adultery and unreasonable behavior being the most popular ones.

However, from my research I have come to realize that there are quite a number of important differences between the laws of the US versus that of England and Wales. Some of the major ones are as follows. First, due the no-fault divorce law revolution of the 1970s, the overall framework in the US has tilted mostly towards no-fault grounds, even though fault grounds still exist. Second, marriage and divorce here is mostly guided by the state laws, therefore a single law is not guiding divorce for the entire country. Third, even though all fifty states now allow no-fault divorce, there are many different flavors of the laws. On the one end of the spectrum are the seventeen states allowing divorce solely on no-fault grounds (e.g. California, Washington, etc.). Case in point is California where, per California Family Code 2310, divorce can be granted on the following two grounds: (1) irreconcilable differences, resulting in marriage breakdown; and (2) permanent legal incapacity to make decisions. On the other end of the spectrum are the thirty-three other states allowing divorce on a mix of fault and no-fault grounds (e.g. Texas, Georgia, Utah, etc.). Case in point is Georgia, where, per Georgia Code § 19-5-3, divorce can be granted on the following grounds: (1) prohibited types of intermarriage; (2) mental incapacity; (3) impotency; (4) force, menace, duress, or fraud in the process of marriage; (5) wife’s pregnancy by someone other than the husband; (6) adultery of either party; (7) willful and continued desertion by any of the parties for one year; (8) conviction of either party for moral turpitude offense, resulting in two or more years of imprisonment; (9) habitual intoxication; (10) cruel treatment; (11) incurable mental illness; and (12) habitual drug addiction; and (13) the marriage being “irretrievably broken” (i.e., the no fault option). Fourth, regarding the no-fault divorce related separation clauses, there are differences between state laws on the duration based on whether the divorce is consent-based or unilateral. In many states, the parties can go for immediate divorce if it is consensual (e.g. Texas, Florida, etc.). For unilateral ones, the duration of separation varies from state to state as follows, with some of them allowing as short a duration as one month (e.g. Alabama), whereas some requiring as long a duration as two years (e.g. Illinois). Fifth, in a handful of states where fault-based clauses are still important, there are some unusual additional grounds as well. For example, New Hampshire, where joining a religious sect which destroys marriage can be a ground for divorce, or Illinois, where infecting a spouse with venereal disease can be a ground. Sixth, even with the existence of fault-clauses, the general trend in the country has been towards no-fault based divorce. Finally, in a limited number of states like Louisiana and Arizona, there is the concept of “covenant marriage” which does not exist in England. In this arrangement, parties opting for it are required to go for premarital education classes and promise to seek marital counseling in case of later problems to preserve the marriage, with no-faults no-fault divorce not available as an option.

After researching the legal frameworks, I also proceeded towards gauging the relative experiences with the highly fault tilted, versus the highly no-fault tilted divorce law frameworks in these two jurisdictions; note that when it comes to the US, by “jurisdiction” I mean the overall US. It was quite interesting to see the prevalence of “grass in greener on the other side” sentiment on both sides.

On the English side of the fence, a comprehensive and widely accepted study by Nuffield Foundation highlighted the following major challenges because of high reliance upon fault-based divorces. First, fault-based framework’s original objective of preserving the institution of marriage by making divorces difficult, has not really been satisfied. Second, a great degree of dishonesty has crept into the process because, irrespective of the reality, the parties have found that they can short circuit the process by using fault, thus avoiding the long separation period requirements and trigger faster divorces. Third, reliance upon fault has given rise to higher levels of acrimony in the divorce process, thus greatly increasing the suffering of children. Fourth, the fault-based proceedings are highly unjust towards the respondent in a high percentage of cases because of truth being taken out of context. Finally, reliance upon fault has, in many cases, resulted in protracted legal battles and has severely impacted the quality of life. A glaring example is the highly debated and publicized case of Owens v. Owens, where although it was found that the marriage has irretrievably broken after 37 years, the judge refused to grant a divorce on the ground: that the petitioner’s fault-based allegations (e.g. intolerable behavior) were just minor altercations which can be expected in a marriage; and that the respondent was also opposing the divorce. The petitioner’s further appeal was unanimously dismissed by the Supreme Court even though the judge expressed his “uneasiness”. The petitioner is still waiting before she can apply for a divorce on the basis of separation grounds, while living quite unhappily in a marriage which does not work anymore. As a result of all these, a strong push has come from various quarters of the society that the law, which has not seen any change since 1973, needs to be reformed towards a no-fault based one so that it is more in alignment with the laws in other developed western nations like the US.

However, on the US side of the fence, because of many decades of experience with the no-fault framework, some major challenges have been observed as well. First, no-fault has caused a substantial rise in divorce rates in the US, probably arising mostly from unilateral divorces. In fact, the US has one the highest divorce rates in the world. Second, in the absence of the conflicts arising from the need to prove fault, fights over custody and support have taken its place, and these have become more prevalent with the similar, if not higher, level of acrimony and humiliation in the process. Third, dishonesty in the process has shifted from falsification in order to prove fault, to falsification in order to get a favorable bargain on the collateral aspect of the divorce process, which is evidenced by a rise in the level of one of the party falsely accusing the other party of child sexual abuse in order to get the children’s custody. Finally, due to the shorter wait period for non-consensual divorces, the party intending to divorce may just wait and simply leave at the end of the waiting period, thereby possibly putting the other spouse who did not want to divorce at a considerable disadvantage, and thus having a higher bargaining power. As a result of these factors, a sentiment opposite to the other side of the Atlantic is prevalent in some sections of the US society. Although there has not been much success, here the detractors of the no-fault framework have been trying to bring fault into the mainstream again. One effect of this push can be evidenced in the introduction of “covenant marriage” in a handful of states as mentioned earlier.

In conclusion, I can only say that this ongoing research has broadened my knowledge horizon and made me realize that I definitely need to undertake more of these exploratory comparative research initiatives. All of the sudden, I see Hamlet appearing in front of my sleepy eyes and say: “There are more things in heaven and earth, Horatio, than are dreamt of in your philosophy.” So, yes, my research will continue!

The Law From Here: What is Legal Research like in Venezuela?

by Mariana Griffiths, LLM Candidate

Welcome to another installment of The Law From Here, our globe-trotting series that gives you a chance to get to know GSU Law’s LLM students. Like many of our LLM students, Mariana Griffiths has considerable experience researching the law of another country–here, Venezuela. In Venezuela, Mariana worked as a legal coordinator. Currently, she works as corporate legal supervisor at UPS while she finishes up her LLM degree at GSU. In today’s The Law From Here, she offers her insights into legal research in the Venezuelan legal system, and how it compares (so far) to researching the law in the United States.

I received my law degree in Caracas, Venezuela at the Universidad Metropolitana or Metropolitan University at the age of 23 years old after finishing high school. In Venezuela it is not required: (1) to pursue an undergraduate degree before applying and start law school; (2) take a bar to practice law. As soon as you receive your law degree in Venezuela, you are licensed to practice nationwide if you register yourself with the Institute of Lawyers and obtain the registration number (which is equivalent to a bar number). However, there is no such requirement of passing the bar in the state where the attorney intends to practice law.

Mariana Griffiths

Venezuela’s legal system is governed by civil law, which is a codified system, meaning that the law is written and organized in codes for each area of the law. Venezuela is a centralized federalism in reality, but constitutionally it is a “Democratic and Social State of Law and Justice which holds as superior values of its legal order an actions those of life, liberty, justice equality solidarity, democracy, social responsibility and, in general the preeminence of human rights, ethics and political pluralism,” Constitución de la República Bolivariana de Venezuela [VE][Constitution]Feb. 19, 2009, Title I, art. 2

The U.S. and Venezuelan flags.

Even though case law is not usually considered a fundamental source of law in Venezuela’s legal system, judicial decisions have become more important in many areas. In particular, there are important decisions regarding public matters such as use of public land, eminent domain (called ‘expropriations’), and infrastructure. The most important cases are the ones decided by the Supreme Court of Justice, which is Venezuela’s equivalent of the Supreme Court of the United States, although there are quite a few differences in composition and operation. The Supreme Court of Justice’s decisions are more likely to be published and create precedents for specific legal issues. However, although that court’s decisions are the most prominent, for case law research, there is no strict rule of hierarchy.

The Constitution in Venezuela is the supreme law of the land, and in the hierarchy of the laws, it is at the same tier as international treaties and agreements. Below, there are the codes and laws enacted by the Legislative Power and the Law Decrees issued by the President, which can be related to any matter, at any time, without any restriction, whether there is a national emergency or not. These decrees often include modifications to current law, which makes practicing law in Venezuela very challenging. It is important to note that in the last twenty years, the numbers of decrees has increased considerably as a way to escape the legislative process. These decrees usually strike down one or more segments of the law in question, as an amendment, which means the attorneys must research different decrees and other sources in order to discern the valid statutory law. Perhaps an analogy can explain it better—it is akin to ‘shepardizing’ case law in the United States.

Before endeavoring to contrast the common law and civil law systems of the U.S. and Venezuela, respectively, it is important to note that both systems have evolved with society’s technological and legal changes. Civil law countries have been relying on case law and using precedent to maintain uniformity in the judicial system, which helps to limit frivolous lawsuits and provides a reference for practicing litigant attorneys. And common law countries use precedent to identify potential areas of the law where statutory law is needed for the same reasons, and for the efficiency of the judicial system.

In Venezuela, like in the United States, there is a  separation of powers. However, this is a similarity with a distinction, since Venezuela’s government has five branches: legislative, executive, judicial, citizen and electoral. This separation of powers of five branches is included in an amendment to the Venezuelan Constitution. In contrast, the United State maintains the classic separation of powers with three branches, characterized by the element of check and balances.

The interaction and relationship between federal and state law is also quite different. In Venezuela, even though each state is autonomous, the codified law apply to all the states. Not all the states even have written constitutions or different laws. States do issue ordinances (at the level of administrative agencies) for local matters such as traffic, business licenses and use of the land, but they do not occupy the same legal space as the federal law. In some ways, this is a simpler system than what we find with the overlapping systems of federal and state law that characterize the United States.

As you might expect, these differences add up, and legal research in Venezuela is pretty different. First, you need to know that, when researching the law in Venezuela, you won’t likely find all of the key primary sources in any one single place, like you do in the U.S. when using Westlaw of Lexis. There is a company called Microjuris that provides some resources for legal research similar to what you might see on those platforms, but it is less complete and less sophisticated. More importantly, Microjuris is not always up-to-date and has an outdated design that, personally, I do not find be user-friendly.

Second, the number of executive decrees which modify the codified law is enormous. Sometimes, in one month, there are more than twenty! That means it is important that means you be up-to-date, which you can ensure by checking the Gazette Official published by the Supreme Court of Justice (the “Tribunal Supremo de Justicia”). Generally, it is a large file; the good news is that it is available online.

Third, because it is a codified law system, legal professionals base their research on the civil codes as primary sources. To support their arguments for a legal memo or for a case in litigation, the use of jurisprudence to supplement the civil codes is critical. There are reputable and well-known authors for each subject, often former judges or academic teacher.

These differences in their countries’ legal systems have a big impact on the way that attorneys research the law in Venezuela and the United States. Although case law is less prominent in Venezuelan law, the added wrinkle of ensuring your research of decrees is up-to-date adds to the challenge of researching Venezuelan, as does the unavailability of a comprehensive or user-friendly service for doing legal research online.

What is a patent agent?

Agents of Invention, Part 1

by T.C. Deveau, Intellectual Property Correspondent & Law Library GRA

Welcome to the first installment of Agents of Invention, our new series exploring the exciting world of patent agents by the law library’s own T.C. Deveau. T.C. has a PhD in Neuroscience and has worked as a patent agent for almost 7 years. He’s currently in the final year of GSU Law’s part-time program.

Imagine helping entrepreneurs ensure that they actually own the exciting inventions that they’ve dedicated so many hours to creating. Imagine collaborating with attorneys and scientists in an environment that where your technical background can make an enormous difference. Imagine a career that helps prepare you for a sophisticated area of legal practice, but doesn’t require a J.D.

If this scenario sounds appealing, have you ever considered becoming a patent agent? A patent agent is someone with a science or engineering degree (i.e., bachelors, masters, Ph.D.) who writes and prosecutes patents on behalf of inventors.[1] Often, these patent agents/prosecutors work at law firms, but they can also work for other organizations, or even for themselves. 

The USPTO HQ in Alexandria, Virginia.

Patent agents have taken and passed the U.S. Patent and Trademark Office Registration Exam (the “Patent Bar”), which allows them to represent clients (inventors, companies, or other organizations such as universities) in front of the USPTO.  Patent agents can submit patent documentation to the Office and participate in the substantive examination of patents.  Basically, patent agents can help clients with anything relating to obtaining a patent from the USPTO. 

“Anything relating to…” sounds really broad, but it generally consists of the following:

  • Consulting with the client about their invention;
  • Working with them to determine a filing strategy that best fits your client’s interest (and budget);
  • Assisting with preparation and filing of the application;
  • Working with USPTO Examiners to get the application allowed; and
  • Working with the USPTO on procedural issues so that the patent is ready for publication and issuance.

For a given client, you may take a patent from start to finish in this manner, for others, you may only work on certain pieces of the puzzle.

While patent agent work is largely U.S.-centric, it’s important to keep in mind that the United States is not the only jurisdiction where intellectual property rights may be relevant or meaningful for a given client.  Patent agent duties often include, coordinating patent application efforts not only in the U.S., but in foreign jurisdictions as well, such as Europe, China, and Japan. This involves working with attorneys or agents in other countries to further your client’s interest in these jurisdictions.

At law firms in particular, the duties of a patent agent often overlap significantly with those of patent attorneys involved in patent prosecution, although an agent’s duties are more limited in scope.  While agents can help clients obtain patents, they cannot be involved in matters that involve giving legal opinions.  Aspects of the field that follow grant of a patent, including patent invalidity, infringement, and licensing, must be handled by attorneys.  When clients have questions like “what can I do with my patent after it is has been issued?” or “I think our competitor is infringing our patent, can you investigate it?,” it’s time to get an attorney involved.

A patent for a bass guitar.

Whether you’re interested in becoming a patent agent (remember, no J.D. required) or a patent attorney, GSU provides great opportunities to students looking to break into the field of patent prosecution.  GSU provides many courses tailored to patent law, both from a doctrinal and a practical experiential perspective.

It is common for patent agents in and around Atlanta to enroll in the part-time J.D. program at GSU and take the next steps towards becoming an attorney.  The part-time program provides a lot of flexibility for those looking to further their careers, and firms in the area even provide incentives to patent agents for going to law school (such as tuition reimbursement).  While at GSU Law, students can further immerse themselves in the world of intellectual property beyond patents.   GSU offers classes covering related topics like copyright, trademark, trade secrets, and contract drafting, all of which are quite helpful in becoming a well-rounded IP attorney.

Some of you reading this may be thinking, “but I’m already in law school—why do I care about patent agents?”  Well, it’s not uncommon for students at GSU to take the Patent Bar, skipping the agent position entirely.  Indeed, many students find GSU Law coursework—classes like Patent Law and Patent Drafting & Prosecution—to be a huge help in their Patent Bar prep (look for coverage of this in a future post).  

Today, I’ve given you an overview of the patent agent position, discussing what it involves and discussing some of the requirements of the field. Stay tuned for our next installment of Agents of Innovation, where I’ll describe a thrilling “day in the life” of a patent agent.  


[1] Did I mention that this position also allows you to call yourself a ‘prosecutor’? The ‘patent prosecution’ process refers to the process of applying for and pursuing patents.

The Law From Here⁠— Legal Research in the U.S. and Brazil

by Alceu Mauricio Junior[i]

Welcome to the first installment of The Law From Here, our globe-trotting new series that gives you a chance to get to know GSU Law’s LLM students. Like many of our LLM students, Alceu Mauricio Junior has a distinctive background that features ample experience practicing law in another country–here, Brazil. However, even amongst this rarified group, Mauricio stands out because he is an experienced judge with several postgraduate degrees. In today’s The Law From Here, he offers his insights into legal research in the Brazilian system, and how it compares to the United States.

Having worked as a judge in Brazil for more than twenty years, I enrolled in the LL.M. Program at Georgia State University (GSU) in 2021. I thought the GSU LL.M. Program would be interesting not only because it opens a door to apply for the Bar Exam in some U.S. jurisdictions, but also because it would widen my perspective on how to view, study, and apply the law, either here in the U.S. or in Brazil.

Alceu Mauricio Junior

While studying the law in a common law country and in a different language, it is almost impossible not to set the mind in a mode of comparison. The whole learning process is triggered by focusing on what is similar and different, and how I would express a legal concept in English versus Portuguese (my native language). My goal in this post is sharing my comparative perspective on legal research, presenting a picture of what Brazilian and U.S. lawyers could expect while researching the law in a country with a different legal tradition

Contextualizing the Brazilian Legal System

Lawyers, being pragmatic professionals, naturally want to draft persuasive arguments and accurately predict outcomes in legal disputes. To do so, they need to find and select the most important authorities, in other words, the authorities that are most likely to guide judges’ and government officials’ decisions. As Brazil and the United States are on different sides of the civil law/common law spectrum, one could expect significant differences in how practitioners research the law in those countries.

Let me start by contextualizing Brazil and its legal system. Brazil has the third-largest economy in the Americas, following The United States and Canada. It has a population of more than 200 million people and has the fifth-largest territory globally. A former colony of Portugal with Portuguese as its official language, Brazil has been “a melting pot for a wide range of cultures.” Brazil is a federative republic, with a federal government, 26 states, and the Federal District. It has a presidential system and a bicameral federal legislative like the United States.

The Brazilian legal system follows the civil law tradition, while also adopting some common law doctrines. Brazil has a written Constitution, which is the supreme law of the land. The Constitution establishes separation of powers, federalism, and fundamental rights. It addresses several fields of law and has an extensive Bill of Rights. Though Brazil is a federation of relatively autonomous states, as in the United States, Brazilian law is centralized at the federal level. Congress has the exclusive power to legislate about contracts, family, crime, torts, trade, corporations, energy, and many other topics. Constitutional law and statutory law are the basis of the Brazilian legal system.

Case law plays a crucial role in legal reasoning and analysis in Brazil, and recent developments have adopted the stare decisis doctrine for some judicial decisions. However, even though precedent in Brazil may consolidate interpretations of the law, they do not create law, as courts must base their decisions on constitutional or statutory law. Nonetheless, courts have the power of judicial review and may invalidate unconstitutional statutes. Most case law has only persuasive authority, but judges follow decisions from higher courts as a common practice.

Brazil has federal and state courts and specialized independent court systems, such as labor, electoral, and military courts. At the top of the judicial system, the Federal Supreme Court (Supremo Tribunal Federal or STF) can hear appeals on constitutional matters, and has original jurisdiction over “direct actions,” challenging the constitutionality of statutes. There is also the Higher Court of Justice (Superior Tribunal de Justiça or STJ), which hears final appeals on the interpretation of federal statutory law.

Facade of the Federal Supreme Court. Photo: Dorivan Marinho/SCO/STF

Comparing Legal Research in Brazil and the U.S.

In some respects, researching the law in Brazil and the U.S is similar. When facing a new topic, lawyers first look at secondary sources and then continuously narrow their research looking at applicable codified law and case law. However, two main differences set apart legal research in the U.S. and Brazil: the use of electronic research tools and the relative weight of primary and secondary authority in legal reasoning.

A. Research Tools

In Brazil, practitioners do not have access to comprehensive legal research products such as Lexis+ or Westlaw Edge. Some paid legal research services offer access to databases of primary and secondary authorities, newsletters, and alerts on new statutory or case law. Examples of those services are Plataforma Forum and Revista dos Tribunais Online. As a judge in federal court, I have access to CAJU, a service provided by the Federal Justice Council with subscription to most of Brazilian legal databases of secondary authority, but like many other practitioners, I would mostly research secondary authority in treatises, which are the basis of legal education in Brazil.

In the U.S., after researching a treatises, I would use Lexis or Westlaw to access statutory and case law. In Brazil, I would access the Legislation Portal at the President’s Office website. At this portal, one can research the Constitution, the various codes, federal statutory law, and regulations. Unlike the United States, Brazil does not have a single code encompassing all federal statutory law. Brazil has eighteen different codes, one for each area of law, and thousands of non-codified statutes. Brazilian students devote a reasonable time in law school learning about the different codes and statutes that may apply in a specific area of law. After graduation, a good lawyer will follow the Legislation Portal’s daily newsletter. The Legislation Portal does not generally provide cross-references between statutes. The statutes are organized chronologically and not by area of law, as in the U.S Code. On the other hand, a lawyer can search the Portal using keywords. The Portal displays the legislation on pages searchable on the internet. All legislation on the Portal is up to date, and every document has references to modifying statutes or amendments.

After collecting information on the secondary sources and narrowing the applicable statutory law, a practitioner’s next step is usually researching case law. Once again, this step would be much simpler in the U.S. using Lexis or Westlaw. In Brazil, lawyers usually research case law using court’s individual websites, which offer handy and reliable free tools for researching case law, but not in a comprehensive, unified portal. In my practice, I would generally start at the Supreme Federal Court’s and Higher Court of Justice’s webpages for two primary reasons. First, in Brazil, federal and constitutional laws are often controlling. The Brazilian Constitution is extensive and has provisions related to several fields of law. So, even topics such as patent law or family law often come before the Supreme Court. Second, the higher courts in Brazil do not have discretionary certiorari procedures. Thus, the Brazilian higher courts receive and decide hundreds of cases every year, and there is a considerable chance of finding precedent helping my reasoning.

The courts’ websites offer handy and reliable free tools for researching case law. The Supreme Federal Court (STF), for instance, offers a search engine on which a lawyer can research cases using keywords. A case on that database may have specific references to secondary authority, codified law, and precedents cited in the opinion. However, different than Lexis or Westlaw, there is no yellow or red flags to show a case may have been overruled or received a negative treatment in a subsequent decision.

B. Legal Culture and the Weight of Authority

The second structural difference researching the law in the U.S. and Brazil is the relative weight of primary and secondary authority in legal reasoning. In the U.S., the framework of stare decisis lays a considerable weight on binding precedent. Precedent is also essential in Brazil, and some judicial decisions are binding authority. However, there is no general principle of stare decisis, and judicial decisions are binding only in particular instances, mostly related to Federal Supreme Court’s decisions on constitutional matters. Most of precedent in Brazil has mere persuasive value. Precedent from the Supreme Federal Court or the Higher Court of Justice has a powerful, persuasive force. A decision from an appellate court in the trial court’s jurisdiction also has a relevant persuasive power, but it is not necessarily more persuasive than a decision from a different appellate court. For instance, when I draft a decision in my court, I will research case law from the appellate court in my circuit. However, if the only on-point decision from my circuit is an old one, I could as well use a newer decision from a different circuit that better reflects the current law.

Higher Court of Justice (STJ) –Plenary of the 1st Section – Judgment Session. Photo: Sandra Fado, CC BY-ND

In addition, secondary sources may play a much more significant role in legal reasoning in Brazil than they would in the U.S. Treatises and law review articles do not have the same force as on-point precedent. However, they may have a similar if not greater persuasive appeal than judicial decisions that do not cover facts resembling the disputed case. This trend comes from the Brazilian legal culture and its civil law origin. While courts in the U.S. put a distinct value on legal certainty (which lays the foundation for the stare decisis doctrine), Brazilian courts tend to see justice in individual cases as a higher value. In practical terms, Brazilian courts are more willing to find distinguishing factors from precedent if they think justice would be better served, even at the expense of law’s predictability. Thus, when researching the law in Brazil, secondary sources play a role that goes beyond helping a lawyer find a roadmap for statutory and case law.

Final Remarks

My experience researching the law in the U.S. is still ripening, so drawing conclusions would be premature at this point. This post’s goal was to give lawyers from Brazil and the U.S. an idea of what they could expect while researching the law in a country with a different legal tradition. Legal research’s purpose does not change when we cross borders. Lawyers and courts need to find authoritative sources to support their arguments and assessments. However, how lawyers and courts research the law may vary from country to country. I noticed two main differences between researching the law in Brazil and the U.S. First, while legal researching in the U.S. predominantly relies on comprehensive paid research tools, in Brazil, research tools mainly used are free, official, non-integrated, online resources. Second, while stare decisis is a core, general principle of U.S. law, giving precedent the spotlight in legal reasoning and researching, precedent and secondary authorities may have similar weight in Brazil when there is no binding, on-point decision.

A question that remains open is whether those differences are independent. Maybe the comprehensive legal tools one can use in the U.S. only reflect a difference of technology and economic capacities, but maybe they exist primarily because the U.S. legal culture demands a precise analysis of precedent that is not required in Brazil. I would be only guessing trying to answer this question, but if I had to guess, I would put my money on legal culture being the most critical factor shaping differences in legal research.


[i] Alceu Mauricio Junior has been a Federal Judge in Brazil since 2001 and is currently an LL.M. candidate at Georgia State University College of Law. He holds a Ph.D. in constitutional law and has a master’s degree in public law. LinkedIn.

Study Aid Spotlight- Examples & Explanations for Criminal Law

by Ross Crowell, 3L & Law Library GRA

For all of you 1Ls, I am sure you are busy studying for your Criminal Law final. When I took it, the world was turning upside down as COVID-19 had just hit and our classes were going entirely online. Luckily, I had a lot of time on my hands for studying, since there was little else to do in the world. During my Finals prep, I found Examples & Explanations for Criminal Law to be very helpful.

This study aid is immediately useful for its easy-to-understand definitions for key criminal law terms. It does an especially good job of distinguishing the many closely-related terms and concepts studied in the course, such as first-degree murder, second-degree murder, felony murder, and manslaughter. It also explains the often-confusing distinctions between the differing approaches to defining crimes like these, including thorough coverage of the Model Penal Code.

Like others in the E&E series, this study aid also includes a variety of illustrative practice problems, each coupled with a thorough explanation of its answer. This format helps you to become more familiar with applying the law to a variety of hypotheticals. The practice problems in the Criminal Law E&E were also shorter than others I’ve encountered, which makes them easier to incorporate into your study routine. You are able to practice issue-spotting and analysis without being forced to read through a hypo that drags on for multiple pages. While it is important to do full-length practice problems and write out full answers, the shorter hypos in this study aid are a great resource for quick analysis, and a good way to quickly see whether you are on the right track.

Whether you just need to brush up on some key concepts or run through some questions in an exam-like format, Examples & Explanations for Criminal Law is a good choice. You can find the most up-to-date version of this study aid in print. We also have the previous edition available online through the Aspen Learning Library, where it can be used in your browser, or with the associated app.

Why the NCAA sues over the use of ‘March Madness’

By Ross Crowell, Law Library Sports Law Correspondent

As the men’s NCAA Tournament just wrapped up with Kansas taking down North Carolina in the National Championship, one interesting legal issue that often arises around the tournament is the NCAA’s trademark on the term “March Madness”.

Image by Nick Youngson CC BY-SA 3.0 

The NCAA has “aggressively protected” its trademarked marketing programs, including “March Madness”. The first time the phrase was first used as a reference to the NCAA Tournament was in 1982 by announcer Brent Musberger. The NCAA attempted to trademark the term in the 1990s, but the term was already trademarked by the Illinois High School Association, which previously purchased the term’s trademark rights from a Chicago television company. 

The Illinois High School Association ended up suing an NCAA licensee to enjoin it from the use of the term. However, the NCAA won, as the Seventh Circuit found that “March Madness” had become a dual-use term, as it could reference both the Illinois High School Association and NCAA basketball tournaments. While both associations used the term for a period of time, the NCAA ended up buying out the Illinois High School Association’s ownership of the trademark. 

Along with “March Madness”, there are several other basketball tournament terms that the NCAA has trademark protection over, such as “Elite Eight”, “Final Four”, “68 Teams, One Dream”, “March Mayhem”, “March to the Madness”, “Road to the Final Four”, “Selection Sunday”, “The Big Dance”, and even “Read to the Final Four”, among many other terms. Thus, the use of the term “March Madness” or any of these other NCAA trademarked terms requires NCAA approval. 

As the NCAA has trademark rights to this term, that means the term cannot be used as a catchphrase by anyone else, even in an unrelated industry. For example, a local country club could not promote a golf tournament under the name “March Madness”, despite the event being completely unrelated to the NCAA basketball tournament. 

While it is impossible for the NCAA to find every commercial use of the term in violation of its trademark protection, the NCAA often sends cease-and-desist letters to owners of bars, restaurants, and other companies that are using the trademark without a license.

The NCAA strictly enforces potential trademark infringements in order to maintain the rights to their trademarks. If the NCAA does not enforce protection of their trademarked terms, they could lose the rights to their protected use of the terms. For example, the terms “thermos”, “yo-yo”, “laundromat”, and “hacky sack” were once trademarked, but became revoked once the terms became generic due to not being protected by the terms’ owners. 

Thus, while the NCAA may appear aggressive for vigorously protecting the use of “March Madness” and other trademarked terms, they police the use of the term in order to maintain their trademark privileges. The NCAA likely does not want “March Madness” to become a generic term, so it must enforce the use of the term, even if the use by other parties does not impact the NCAA’s business interests. 

NFL Broadcast Rights on the Move

By Ross Crowell, Law Library GRA Sports Law Correspondent

Watching primetime NFL games on television will probably look a bit different during the 2022 season. Fox, CBS, NBC, ESPN, and Amazon are all trying to figure out who they will have announcing their games during this upcoming football season. These multi-million dollar broadcasting contracts are legally complex, implicating different areas such as Contract Law, Employment Law, Media Law. There are also potential Antitrust Law implications, since the NFL and its television broadcasters are regulated by the Sports Broadcasting Act of 1961, which grants a limited exemption to the Sherman Act permitting the various teams to enter into joint broadcasting agreements despite their anticompetitive effects.

The biggest shift relates to increased importance of streaming rights. Amazon has shaken things up being a new player in this business, as they now have the exclusive rights to stream 15 Thursday Night Football games for the 2022 season on Amazon Prime.

The networks’ broadcast booths will be playing musical chairs, as many of the biggest names will be on the move. Some top broadcasters that are potentially leaving networks are Troy Aikman (Fox), Al Michaels (NBC), Louis Riddick (ESPN), and Brian Griese (ESPN). Riddick is being considered for NFL general manager positions and Griese, whose contract expired after the 2021 season, will reportedly become the San Francisco 49ers quarterbacks coach. Aikman, who reportedly will become the new color analyst for Monday Night Football at ESPN, has broadcasted for Fox for 20 years, spending 19 of those with broadcast partner Joe Buck. Aikman’s reported deal will be for five years and close to $18 million annually. 

In addition to current broadcasters, some big-name former players are also in consideration for these roles. Recently retired 7-time Super Bowl champion Tom Brady reportedly will be contacted by Amazon and Fox to gauge his interest in broadcasting. Drew Brees, who led the New Orleans Saints to a Super Bowl, was on television last season for NBC and could be poached by one of the competing networks. 

However, Brees only has one year of experience on television and Brady has not broadcasted any games, as he retired just over a month ago. As these contracts for broadcasters rival what the top players in the NFL are paid, it is a bit of a risk to hire someone with inexperience. However, the names of Brees and Brady likely will draw in many fans that would want to tune in to their broadcasts. The networks will have to carefully weigh these various considerations when negotiating these complex employment contracts.

College Athletes Can Profit from their Names, Images, and Likenesses. Now What?

By Ross Crowell, Law Library GRA Sports Law Correspondent

Prior to 2021, college athletes were strictly seen as unpaid athletes. That has changed over the past several months, as now college athletes are able to make money off of their name, image and likeness (“NIL”). While the schools are still not allowed to directly pay their student athletes, the student athletes can now make money from things like advertisements and social media. However, the confusing legal environment surrounding NIL means that colleges and athletes are unsure of what they can and cannot do.

The history behind the change involves federalism, activism, and antitrust law. First, Florida passed a state law in June 2020 that legalized college athletes to capitalize off of their name, image and likeness, with the law going into effect on July, 1, 2021. Several other states followed Florida. These state laws, along with activism by the college athletes , a Supreme Court opinion holding NCAA limits on education-related benefits to be invalid under federal antitrust law, and other events, led to the NCAA adopting a temporary rule change on June 30, 2021, allowing college athletes to benefit from their name, image, and likeness.

The NCAA abruptly enacting this temporary rule change has created mass confusion among its member schools, as there is currently not much clarity on what is and what is not allowed. Additionally, different states having very different NIL laws has put some schools at a disadvantage. For example, Alabama and Florida, among other states, have stricter NIL laws than other states. Thus, college athletes in those jurisdictions cannot take advantage of the NIL to the same degree as athletes in states that do not have any NIL law at all (such as Kentucky and Virginia). 

Sports balls on a background comprised of $100 bills.


With players signing lucrative NIL contracts to appear in national advertisements for established brands, stakeholders are seeking clarity and uniformity. From the perspective of colleges, restrictive state NIL laws could be a disadvantage in recruiting, or even prompt top athletes to transfer to schools where they can fully take advantage of NIL. This resulted in the Alabama House voting in favor of repealing its prior law. Other states likely will follow, as the state legislatures will want their universities on a level playing field with schools in other states. 

The best solution to this issue may be to enact a new federal law to restore uniformity by preempting the current state NIL laws. Instead of 50 different state laws dictating how their college athletes can profit from their NILs, there would be a single rule that all universities and teams have to play by. 

The NCAA seems to feel the same way. When the NCAA announced the legality of NIL on June 30, 2021, Division I Board of Directors chair Denise Trauth said, “with this interim solution in place, we will continue to work with Congress to adopt federal legislation to support student-athletes.” Congress held a hearing on October 1, 2021, where NCAA president Mark Emmert called on Congress to act, claiming that the NCAA has an urgent need for NIL federal framework.

So far, there has not been any federal or NCAA action taken. This will be an interesting issue to follow, as many college sports pundits claim that NIL has turned college athletics into the “wild wild west” without an overarching law. 

The MLB Lockout: A Look at the Issues

By Ross Crowell, GSU Law Library Sports Law Correspondent

Here in Atlanta, many baseball fans should be looking forward to the upcoming baseball season, as the Braves are fresh off of a World Series victory. The Braves should start off the 2022 season in under two months, as their first game is scheduled at the Miami Marlins on March 31. However, the Braves and the rest of Major League Baseball (“MLB”) likely will not be playing games as scheduled. It appears to be an all-but certainty that the 2022 season will not start on time due to the MLB lockout. And ultimately it might be beneficial to remember that the lockout grew out of something everyone who’s taken 1L Contracts is at least passingly familiar with: protracted negotiations over an extremely complex contract.

We are now over two months into the lockout, which has been caused by the owners and players failing to reach a new collective bargaining agreement (“CBA”). Further, it appears that the two sides have not made much progress in reaching an agreement. The lockout began on December 2, when the Major League Baseball Players Association and the owners could not reach an agreement, resulting in the MLB’s first work stoppage since 1994. 

The players and owners are mainly arguing over financial issues, with players upset that they aren’t paid the high salaries they think they deserve. The players also want to change a long-time rule that forces players to wait six years to reach free agency. As players’ first contracts are usually not for substantial money unless they were a high draft pick, this rule forces players to wait a significant amount of time before they can cash in on a big second contract (potentially worth hundreds of millions of dollars in some cases). 

Further, the players and owners are struggling to reach an agreement on the pre-arbitration bonus pool. The players recently lowered their proposed pre-arbitration bonus pool from $105 million to $100 million, while the owners are sitting at a proposed $10 million. Thus, there is a significant gap in those negotiations. 

Additional issues that the two sides are arguing over are disincentivizing tanking (i.e., stop rewarding teams who intentionally perform poorly), increasing the competitive balance tax threshold, and ending service-time manipulation. The service-time manipulation is an interesting issue that notably occurred with Atlanta’s All Star outfielder Ronald Acuña. With Acuña, the Braves knew that he was ready to be a big contributor during 2018. However, Atlanta waited until three weeks into the season to call Acuña up from the minor leagues, as this would allow the Braves to get an extra year out of Acuña’s contract before hitting free agency. Thus, the players are hoping the new CBA will put an end to this practice. 

Moreover, these negotiations involve several attorneys. Notably, MLB Commissioner Rob Manfred was a labor and employment partner at Morgan Lewis & Bockius LLP prior to his career with the MLB. While Manfred was with Morgan Lewis, he negotiated on behalf of the owners during the 1994-1995 MLB lockout, along with negotiating the league’s first drug-testing program in 2022. Dan Halem, who is the league’s Deputy Commissioner, previously served as a partner at Proskauer Rose LLP, working in labor and employment law, along with sports law. Additionally, Bruce Meyer, the MLB Players Association Senior Director of Collective Bargaining and Legal, is a partner at Weil Gotshal & Manges LLP. Meyer also has experience working on behalf of the NHL, NFL, and NBA during arbitrations, lawsuits, and CBA negotiations. 

These are just a handful of things that are being heavily disputed between the players and owners. With spring training tentatively beginning on February 16, it appears highly unlikely that things will get started on time, likely resulting in the regular season getting pushed back. If you are planning on going to the Braves’ home opener on April 7 against the Mets, now might be the time to start coming to the realization that the game may not occur.  

So, when you’re trying to connect tricky concepts around negotiations, contracts, and labor law to the real world, it might actually be beneficial to think of all of those baseball games that will never be played.

Introducing Aspen Learning Library (formerly known as Wolters Kluwer Online Study Aid Library) & its Companion App

In this post, Law Library GRA Ross Crowell takes a closer look at a resource with a fancy new name but lots of familiar (and very helpful) content.

If you’re a regular user of the law library’s online study aid collection, you’ve probably noticed the recent change in nomenclature: what was formerly known as the Wolters Kluwer Online Study Aid Library is now called Aspen Learning Library. It’s got all of the same study aids, and you can still find it in the same place on the library’s database list, but it now features a new interface and a new app (rather sensibly called the Aspen Learning Library App), which you can find on the App Store, Google Play, and for desktops. I downloaded it on my MacBook and have enjoyed the ease of being able to access all of these great study aids in just a few clicks. Instead of having to log onto the GSU Law Library website and then log in again to access these study aids, they are now accessible simply by opening an app. In addition, unlike the generic IPC Reader app that some students used for these study aids, this one is designed specifically for these resources.

Here is a look at the desktop app’s interface. As of now, there are 211 different study aids that are accessible through the app. 

You’re sure to see some familiar titles. All 1L course study aids are available here, along with study aids for many other courses such as Admin Law, Corporations, Wills Trusts & Estates, and Constitutional Law. One favorite I accessed via the app are the Casenote Legal Briefs, which provide detailed briefs for many cases. Personally, I wish I would have used this study aid for Con Law during my 2L year, as it would have made my life a lot easier by simplifying the long cases that I struggled to understand. These briefs can be great when you are struggling with a case, as they provide condensed and simplified explanations. 

In addition to the Legal Briefs, the app also has Examples & Explanations for many popular electives and core classes. I enjoy using these study aids around finals time, as they can be a good way to do practice problems and then check your answers. There are several other types of study aids available in the app, but these two are the ones that I use the most. 

Feel free to download the app, get logged in, and access all of these great study aids to get you through the semester. To get started, I downloaded the app here. After starting the app, I signed in through “OpenAthens”, searched Georgia State University, then logged in with my GSU credentials. Hopefully, you find that this app will be beneficial to you for the semester and the rest of your time in law school.