Law Commons^™

Charting Supreme Court Patent Law, Near And Far, Joseph S. Miller

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The Supreme Court has been markedly more active in patent law in recent years, as many have noted. How much has patent law changed as a result? The amount of change one sees is, in important respects, a function of the lens through which one looks. In this network analysis of the Supreme Court’s citations to its own case law in all its intellectual property cases from 1947 to 2017, inclusive, I am reminded of Alphonse Karr’s famous quip: “Plus ça change, plus c’est law mȇme chose” — the more it changes, the more it’s the same thing. I report …

Wrongful Convictions, Constitutional Remedies, And Nelson V. Colorado, Michael Wells

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This article examines the U.S. Supreme Court’s Nelson v. Colorado opinion, in which the Court addressed the novel issue of remedies for persons wrongly convicted of crimes. Governments routinely deprive criminal defendants of both liberty and property upon conviction, and do so before giving them a chance to appeal their convictions and sentences. When a conviction is overturned, the state typically refunds fines and most other monetary exactions but seldom compensates for the loss of liberty. In Nelson, the Supreme Court addressed an unusual case in which the state did not return the money and that refusal was approved (purportedly …

Chevron Step Two's Domain, Kent H. Barnett, Christopher J. Walker

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An increasing number of judges, policymakers, and scholars have advocated eliminating or narrowing Chevron deference—a two-step inquiry under which courts defer to federal agencies’ reasonable interpretations of ambiguous statutes the agencies administer. Much of the debate centers on either Chevron’s domain (i.e., when Chevron should apply at all) or how courts ascertain statutory ambiguity at Chevron’s first step. Largely lost in this debate on constraining agency discretion is the role of Chevron’s second step: whether the agency’s resolution of a statutory ambiguity is reasonable. Drawing on the most comprehensive study of Chevron in the circuit courts, this Essay explores how …

The Future Of Lower-Income Students In Higher Education: Rethinking The Pell Program And Federal Tax Incentives, Camilla E. Watson

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As the costs of higher education have soared, the value of Pell grants has declined, making it more difficult for lower-income students to obtain an education without being hopelessly mired in debt. This article traces the evolution of the Pell program and discusses the diametrically opposed proposals of Presidents Obama and Trump to reform federal funding for higher education. The article proposes an alternative plan that would require a redirection of a portion of the funds from the Pell program and a reshuffling of the current tax incentives for higher education. The advantages of this proposal are that it would …

Presidential Attacks On The Press, Sonja R. West

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President Donald Trump’s habit of hurling invectives at the press is disturbing. It undermines the work of the press and breaks long-standing norms that presidents show respect for the role of the Fourth Estate. But insults alone rarely raise First Amendment issues. Presidents have long used the bully pulpit to respond to or criticize news reports. Even Trump’s near daily verbal assaults on reporters and news organizations can be considered part of our country’s “uninhibited, robust, and wide-open” marketplace of ideas. Presidents have opinions too, and journalists should be able to handle his rants.

Yet there are also times when …

Backyard Breeding: Regulatory Nuisance, Crime Precursor, Lisa Milot

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The harms of puppy mills have been well-publicized over the past decade: hundreds of female dogs living out their lives in small cages, producing puppies for sale with each heat cycle, with neither the breeding stock nor puppies receiving normal veterinary care. In popular media, academic critiques, activist publications, and legislative discussion, puppy mills are contrasted with smallvolume dog breeders—the hobby breeder or inadvertent breeder who has only a few dogs and treats them as pets or members of the family, breeding occasionally for personal reasons. Both state and federal laws have been designed to regulate puppy mills and other …

Taxing Litigation: Federal Tax Concerns Of Personal Injury Plaintiffs And Their Lawyers, Gregg Polsky

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This Article addresses the federal tax concerns ofpersonal injury plaintiffs and the lawyers who represent them, typically on a contingencyfee basis. It explains when plaintiffs' recoveries are taxable for income and employment tax purposes and whether and how those recoveries are required to be reported by defendants to the IRS. It also discusses whether attorney's fees and costs are deductible by plaintiffs.

In addition to these tax planning and compliance issues, the Article also considers when tax evidence might be admissible. Plaintiffs and defendants often try to introduce tax evidence in an effort to increase or decrease, respectively, the amount …

Environmental Law, Eleventh Circuit Survey, Travis M. Trimble

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In 2017, district courts decided several issues that the United States Court of Appeals for the Eleventh Circuit had never addressed. The United States District Court for the Middle District of Georgia concluded that the Clean Water Act's (CWA) prohibition on the discharge of pollutants into waters of the United States without a permit extended to discharges into groundwater with a "direct hydrological connection" to surface waters within the Act's scope. The court also concluded that a state-permitted land application system, whereby wastewater is sprayed onto fields as means of treatment and disposal, constituted a "point source" within the meaning …

Non-Alj Adjudicators In Federal Agencies: Status, Selection, Oversight, And Removal, Kent H. Barnett, Russell Wheeler

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This article republishes—in substantively similar form—our 2018 report to the Administrative Conference of the United States (ACUS) concerning federal agencies’ adjudicators who are not administrative law judges (ALJs). (We refer to these adjudicators as “non-ALJ Adjudicators” or “non-ALJs.”) As our data indicate, non-ALJs significantly outnumber ALJs. Yet non-ALJs are often overlooked and difficult to discuss as a class because of their disparate titles and characteristics. To obtain more information on non-ALJs, we surveyed agencies on non-ALJs’ hearings and, among other things, the characteristics concerning non-ALJs’ salaries, selection, oversight, and removal. We first present our reported data on these matters, which …

Tournament Of Managers: Lessons From The Academic Leadership Market, Usha Rodrigues

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Why do firms usually make, not buy, their chief executive officers (CEOs)? Public corporations hire their CEOs from within the firm 78% of the time. They do so although earlier studies have found no clear evidence that internal hires perform better than external ones. So why do firms prefer them? Few scholars have focused on this simple question.

The reason why firms favor internal candidates matters not only in its own right, but also for an overlooked reason: it informs the controversial question of executive compensation. Currently board-compensation committees look to peer benchmarks to set executive pay. But, taking cues …

International Order Between Governance And Contract, Harlan G. Cohen

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What is international law for? Is the goal to achieve cooperation in providing global public goods, such as managing the environment, providing peace and security, alleviating poverty, controlling the spread of diseases, protecting basic human rights, and supplying best-practices and standards on health and labor? Or is it about managing conflict and competition between states and others by setting expectations and channeling disputes between them into agreed-upon fora for peaceful settlement?

These two types of purpose are often treated as complementary, with international institutions like the World Trade Organization (WTO) or United Nations often justified on both counts. But they …

Between Economic Planning And Market Competition: Institutional Law And Economics In The Us, Laura Phillips Sawyer

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In 1926 John Maurice Clark published a seminal text in institutionalist economics, Social Control of Business, surveying the ways in which business was subject to control by a variety of formal and informal constraints. 1 The text rejected mainstream ideas in neoclassical political economy by explaining how individual self-interest and competition could be manipulated not only through legal rules but also by custom, habit, codes of ethics, and morals. Representative of the institutionalist movement, Clark discarded presumptions of an individualistic economy based on market competition. Instead, he posited that long-term public goals of prosperity and equity could be achieved through …