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Ksr V. Teleflex: How “Obviousness” Has Changed, Daniel Becker
Ksr V. Teleflex: How “Obviousness” Has Changed, Daniel Becker
Duke Journal of Constitutional Law & Public Policy Sidebar
In KSR v. Teleflex, the Supreme Court examined the Federal Circuit's obviousness jurisprudence for patents. Both prior to and in this case, the Federal Circuit rigidly applied its judicially created "teaching, suggestion, or motivation" (TSM) test to determine whether the prior art would direct an inventor of ordinary skill in the art to combine references or elements in references in the same way as the patentee did. The Supreme Court, however, reversed the decision of the Federal Circuit, and held that by applying the TSM test in such a strict manner, the Federal Circuit had "analyzed the issue in a …
Why The Incompatibility Clause Applies To The Office Of The President, Saikrishna Bangalore Prakash
Why The Incompatibility Clause Applies To The Office Of The President, Saikrishna Bangalore Prakash
Duke Journal of Constitutional Law & Public Policy Sidebar
Professor Saikrishna Bangalore Prakash responds to Mr. Seth Barret Tillman's Article and defends the traditional interpretation of the Incompatibility Clause, under which a President is prohibited from simultaneously serving as a congressional representative. The ramifications that would result if a President could also hold a position in the Senate or the House of Representatives, Professor Prakash argues, are too problematic for Mr. Tillman's reading to replace the traditional understanding of the Incompatibility Clause. Therefore, the next President, whether Senator McCain or Senator Obama, would need to resign from the Senate before assuming the Executive Office.
Why Our Next President May Keep His Or Her Senate Seat: A Conjecture On The Constitution’S Incompatibility Clause, Seth Barrett Tillman
Why Our Next President May Keep His Or Her Senate Seat: A Conjecture On The Constitution’S Incompatibility Clause, Seth Barrett Tillman
Duke Journal of Constitutional Law & Public Policy Sidebar
In this Article, Mr. Seth Barrett Tillman challenges the traditional interpretation of the Incompatibility Clause and argues that the President may serve both as the Chief Executive and as a member of Congress. Mr. Tillman utilizes the text, history, and structure of the Constitution to support his position. He ultimately concludes that whoever serves as the next President -- Senator Obama or Senator McCain -- need not resign from the Senate before assuming the Executive Office.
Medimmune, Inc. V. Genentech, Inc.: A Patent Licensee Does Not Need To Terminate Or Breach A License Agreement In Order To Challenge Its Validity Or Enforceability, C. Tyler Ohanian
Duke Journal of Constitutional Law & Public Policy Sidebar
MedImmune, Inc. v. Genentech, Inc. asks whether Article III's restriction on the jurisdiction of the federal courts only to "cases" and "controversies," as required by the "actual controversy" limitation of the Declaratory Judgment Act, necessitates that a patent licensee terminate or breach its license agreement before seeking a declaratory judgment to hold the underlying patent invalid, unenforceable, or not infringed. Breaking with the Court of Appeals for the Federal Circuit, the MedImmune majority clearly establishes a patent licensee's legal right to challenge the validity and enforceability of a patent without actually breaching or terminating the underlying licensing agreement for the …
Cunningham V. California, Christopher P. Raab
Cunningham V. California, Christopher P. Raab
Duke Journal of Constitutional Law & Public Policy Sidebar
In Cunningham v. California, the United States Supreme Court voted 6-3 to invalidate California's determinate sentencing law ("DSL") as violative of the Sixth and Fourteenth Amendments. The Court held that, notwithstanding the California Supreme Court's determination to the contrary, the DSL conflicted with prior Supreme Court precedent "by placing sentence-elevating factfinding within the judge's province," thereby "violat[ing] a defendant's right to trial by jury safeguarded by the Sixth and Fourteenth Amendments."
Carey V. Musladin: A Commentary On What Is Not Prejudicial, Christopher Donadio
Carey V. Musladin: A Commentary On What Is Not Prejudicial, Christopher Donadio
Duke Journal of Constitutional Law & Public Policy Sidebar
In a 9-0 decision, the United States Supreme Court refused to find that a California state court had acted "contrary to, or involved an unreasonable application of, clearly established Federal law," when that court found that it was not prejudicial for trial audience members to wear buttons with the image of the defendant's alleged murder victim. The Court relied upon the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), and its previous rulings in Estelle v. Williams and Holbrook v. Flynn, earlier cases that defined certain actions as prejudicial to a defendant in a court of law. The Court …
When Is Enough Too Much? The Broadcast Decency Enforcement Act Of 2005 And The Eighth Amendment’S Prohibition On Excessive Fines, Amy Kristin Sanders Esq.
When Is Enough Too Much? The Broadcast Decency Enforcement Act Of 2005 And The Eighth Amendment’S Prohibition On Excessive Fines, Amy Kristin Sanders Esq.
Duke Journal of Constitutional Law & Public Policy Sidebar
The next slip of the tongue or of the blouse will hit broadcasters where it hurts: their wallet. With the recent passage of the Broadcast Decency Enforcement Act of 2005 ("BDEA"), Congress raised potential fines ten-fold in an attempt to clean up the airwaves and prevent the televised snafus that have occurred with increasing frequency during the past five years. From the broadcast of a barely covered breast during the 2004 Super Bowl to the on-air announcement of a four-letter expletive on a prime-time awards show, indecent expression has attracted the attention of the general public, advocacy groups, the Federal …
Safeco Ins. Co. Of America V. Burr: Defining Notification Requirements And Willfulness Under The Fair Credit Reporting Act, Travis S. Souza
Safeco Ins. Co. Of America V. Burr: Defining Notification Requirements And Willfulness Under The Fair Credit Reporting Act, Travis S. Souza
Duke Journal of Constitutional Law & Public Policy Sidebar
In a recent decision, the United States Supreme Court resolved a critical dispute regarding the interpretation of the Fair Credit Reporting Act ("FCRA") and its notice requirement. In Safeco Ins. Co. of America v. Burr, the Court settled the definition of "willful" violation, a determination that will have enormous effects for insurance companies. Specifically, the Court held that willfulness not only includes knowing violations, but also includes a violation committed in reckless disregard of statutory obligations. While both of the insurance companies in Burr were technically victorious -- both were held not to have willfully violated the FCRA -- the …
Philip Morris Usa V. Williams: A Confusing Distinction, Sachin Bansal
Philip Morris Usa V. Williams: A Confusing Distinction, Sachin Bansal
Duke Journal of Constitutional Law & Public Policy Sidebar
In Philip Morris USA v. Williams, the United States Supreme Court held 5-4 that it is unconstitutional under the Due Process Clause of the Constitution for a jury to award punitive damages for harm caused to individuals other than the plaintiff. Thus, the Court concluded that, under the Constitution, a trial court could not levy punitive damages out of a desire to punish a company for injuries it inflicts upon others who are "essentially, strangers to the litigation." However, the Court confusingly drew a narrow and arguably contradictory distinction to justify its holding. Under Philip Morris USA, a jury may …
Scott V. Harris, Uchenna Evans
Scott V. Harris, Uchenna Evans
Duke Journal of Constitutional Law & Public Policy Sidebar
In an 8-1 decision, the Supreme Court reversed an 11th Circuit ruling denying qualified immunity to a police officer sued by a fleeing motorist who was rendered quadriplegic when his car was pushed over an embankment by the officer's vehicle. . The Court ruled that the officer did not violate the motorist's Fourth Amendment right to be free from unreasonable seizure and that the officer was entitled to summary judgment. Both the federal district court and the 11th Circuit had ruled in favor of the respondent, denying the officer's summary judgment motion based on qualified immunity after finding a Fourth …
United Haulers Ass’N V. Oneida-Herkimer Solid Waste Mgmt. Auth., Joshua J. Faber
United Haulers Ass’N V. Oneida-Herkimer Solid Waste Mgmt. Auth., Joshua J. Faber
Duke Journal of Constitutional Law & Public Policy Sidebar
The Supreme Court, in a 6-3 decision, upheld two counties' flow control ordinances that require trash haulers to deliver waste to government-owned processing facilities. The Court determined that the Commerce Clause is not violated by laws which favor state or local government entities but treat all private entities equal.
Jones V. Bock: New Clarity Under The Prison Litigation Reform Act, Squire Servance
Jones V. Bock: New Clarity Under The Prison Litigation Reform Act, Squire Servance
Duke Journal of Constitutional Law & Public Policy Sidebar
On January 22, 2007, the Supreme Court decided the consolidated cases of Jones v. Bock , Williams v. Overton , and Walton v. Bouchard , all of which were Sixth Circuit cases. In a unanimous decision, the Supreme Court provided clarity to what constitutes exhaustion of prison grievance procedures under the Prison Litigation Reform Act of 1995 (PLRA). The Court's decision also offers its view on the correct way to balance the burden between prisoner plaintiffs and the judiciary, which labors to process prisoner complaints. Broken into three discreet issues, the essential holding provides a small victory for prison litigants. …
Whorton V. Bockting And The Watershed Exception Of Teague V. Lane, Tadhg Dooley
Whorton V. Bockting And The Watershed Exception Of Teague V. Lane, Tadhg Dooley
Duke Journal of Constitutional Law & Public Policy Sidebar
In Whorton v. Bockting, the Supreme Court considered whether its rule from Crawford v. Washington, prohibiting the admission of testimonial hearsay statements without a prior opportunity for the defendant to cross-examine the declarant, should be applied retroactively to cases on collateral appeal under the standard set forth in Teague v. Lane. The determination rested on whether Crawford announced a "new rule" that should be applied retroactively by virtue of its being a "watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." In a unanimous decision, the Court held that Crawford did announce a "new …
Planned Parenthood Federation Of America, Inc. V. Gonzales, Blake Mason
Planned Parenthood Federation Of America, Inc. V. Gonzales, Blake Mason
Duke Journal of Constitutional Law & Public Policy Sidebar
In one of the most pivotal cases of the Fall 2006 Term, the United States Supreme Court upheld the Partial-Birth Abortion Ban Act of 2003 by a vote of 5-4. The Court found the Act to be facially valid, despite the absence of an exception for cases in which an abortion is necessary to preserve the health of the mother, stating that the Act was not "void for vagueness" and that it did not impose "an undue burden on a woman's right to abortion based on its overbreadth or lack of a health exception." The case signaled a departure from …
Lawrence V. Florida: Applications For Post-Conviction Relief Are, Elizabeth Richardson-Royer
Lawrence V. Florida: Applications For Post-Conviction Relief Are, Elizabeth Richardson-Royer
Duke Journal of Constitutional Law & Public Policy Sidebar
On February 20, 2007 , the Supreme Court announced its decision in Lawrence v. Florida, seeking to address confusion surrounding the tolling of a one-year statute of limitations applicable to federal habeas corpus petitions.
Dura Pharmaceuticals V. Broudo: The Unlikely Tort Of “Securities Fraud”: Dura Pharmaceuticals V. Broudo, Oleg Cross
Dura Pharmaceuticals V. Broudo: The Unlikely Tort Of “Securities Fraud”: Dura Pharmaceuticals V. Broudo, Oleg Cross
Duke Journal of Constitutional Law & Public Policy Sidebar
Created pursuant to section 10 of the 1934 Securities Act, Rule 10b-5 is a cornerstone of the federal securities laws. The federal courts' interpretations have largely defined the rule, which seeks to remedy a broad range of securities fraud and market manipulation. Elements of the rule, such as "scienter" and "reliance," were defined at length by earlier court decisions. However, no court had held definitively whether a private plaintiff bringing an action under the rule must demonstrate a causal connection between the alleged fraud and the subsequent loss to that plaintiff. This issue, referred to as "loss causation," was decided …
Burton V. Stewart: Reconsidering What Makes A Supreme Court Decision ‘New’, Michael Goodman
Burton V. Stewart: Reconsidering What Makes A Supreme Court Decision ‘New’, Michael Goodman
Duke Journal of Constitutional Law & Public Policy Sidebar
In Burton v. Stewart, the Supreme Court narrowly avoided deciding whether Blakely v. Washington is a "new" rule as well as a related question of whether Blakely should be applied retroactively on collateral review. Instead, the Court ruled that Mr. Burton's petition for review did not meet the "gatekeeping requirements of 28 U.S.C. § 2244(b)." By deciding Burton on procedural grounds rather than considering the merits of the underlying claims upon which certiorari was granted, the Court delayed consideration of important issues, which are likely to resurface.
Burlington Northern & Santa Fe Railway Co. V. White, Christian J. Brann
Burlington Northern & Santa Fe Railway Co. V. White, Christian J. Brann
Duke Journal of Constitutional Law & Public Policy Sidebar
On June 22, 2006, the United States Supreme Court broadened the purview of the anti-retaliation provision of Title VII in all circuits but one when it held that the provision prohibits those employer actions that would be considered materially adverse by a reasonable employee, regardless of whether such actions occurred at the workplace or were related to employment. In so holding, the Supreme Court did three things worthy of comment. First, the Court expunged the confusion caused by disparate and incompatible treatments of the anti-retaliation provision by the circuit courts. Second, by subjecting all employer action to review, the Court …
Eminent Domain After Kelo V. City Of New London: Compensating For The Supreme Court’S Refusal To Enforce The Fifth Amendment, Scott D. Mikkelsen
Eminent Domain After Kelo V. City Of New London: Compensating For The Supreme Court’S Refusal To Enforce The Fifth Amendment, Scott D. Mikkelsen
Duke Journal of Constitutional Law & Public Policy Sidebar
Governments, both state and federal, have the right to take private property for public use, provided that just compensation is paid. The Fifth Amendment to the United States Constitution sets the legal standard for these propositions; this power is known as the right of eminent domain. In the landmark decision, Kelo v. City of New London, the Supreme Court held that the taking of a citizen’s private property for economic development qualified as a public use within the meaning of the Fifth Amendment. Several scholars, legislatures, and individuals, have objected to Kelo’s extension of the power of eminent …
Lopez V. Gonzales & Toledo-Flores V. United States: State Felony Drug Convictions Not Necessarily Aggravated Felonies Requiring Deportation, Ryan Wagner
Duke Journal of Constitutional Law & Public Policy Sidebar
The United States Courts of Appeals split over whether state felony drug convictions, which were punishable only as misdemeanors under federal law, constituted aggravated felonies under immigration law. The controversy was based upon the interpretation of the Immigration and Nationality Act (“INA”). Under the Act, an alien who is convicted of an “aggravated felony” is automatically deported from the United States. According to the INA, an aggravated felony includes “illicit trafficking in a controlled substance . . . including a drug trafficking crime (as defined in section 924(c) of Title 18).” Although the INA does not define “illicit trafficking,” Title …
Merck Kgaa V. Integra Lifesciences I, Ltd.: Greater Research Protection For Drug Manufacturers, Samuel Rubin
Merck Kgaa V. Integra Lifesciences I, Ltd.: Greater Research Protection For Drug Manufacturers, Samuel Rubin
Duke Journal of Constitutional Law & Public Policy Sidebar
Merck sought protection under a statutory exemption from claims of patent infringement brought by Integra Lifesciences. The Court held unanimously that the safe harbor contained in 35 U.S.C. § 271(e)(1) protected the use of patented inventions used in preclinical research where the results were not submitted to the FDA. The Court's interpretation of the safe harbor provision broadened protection for those engaged in drug research at a substantial cost to patent-holders.