Law Commons^™

Securities Law In The Sixties: The Supreme Court, The Second Circuit, And The Triumph Of Purpose Over Text, Adam C. Pritchard, Robert B. Thompson

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This Article analyzes the Supreme Court’s leading securities cases from 1962 to 1972—SEC v. Capital Gains Research Bureau, Inc.; J.I. Case Co. v. Borak; Mills v. Electric Auto-Lite Co.; Superintendent of Insurance v. Bankers Life & Casualty Co.; and Affiliated Ute of Utah v. United States—relying not just on the published opinions, but also the Justices’ internal letters, memos, and conference notes. The Sixties Court did not simply apply the text as enacted by Congress, but instead invoked the securities laws’ purposes as a guide to interpretation. The Court became a partner of Congress in shaping the securities laws, rather …

Cardozo On The Supreme Court: Meeting High Expectations, Richard D. Friedman

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President Trump announced his nomination of Neil Gorsuch — the sixth most senior judge on a federal appellate court in the hinterland—for a seat on the Supreme Court in a formal, nationally televised ceremony. Judge Gorsuch squeezed the shoulder of his wife, a gesture that signaled not only his thrill at the nomination but his joy at being able to share it with her. There followed a bitterly partisan process, featuring hearings at which the nominee testified and deflected questions about his substantive views. A change in the Senate rules, ending the possibility of a filibuster, was necessary to bring …

Sites Of Storytelling: Supreme Court Confirmation Hearings, Patrick Barry

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Supreme Court confirmation hearings have an interesting biographical feature: before nominees even say a word, many words are said about them. This feature— which has been on prominent display in the confirmation hearings of Judge Brett Kavanaugh—is a product of how each senator on the confirmation committee is allowed to make an opening statement. Some of these statements are, as Robert Bork remembers from his own confirmation hearing, “lavish in their praise,” some are “lavish in their denunciations,” and some are “lavish in their equivocations.”1 The result is a disorienting kind of biography by committee, one which produces not one …

Wrong Turn On The Ex Post Facto Clause, Paul D. Reingold, Kimberly Thomas

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The Ex Post Facto Clause bars any increase in punishment after the commission of a crime. But deciding what constitutes an increase in punishment can be tricky. At the front end of a criminal case, where new or amended criminal laws might lengthen prisoners’ sentences if applied retroactively, courts have routinely struck down such changes under the Ex Post Facto Clause. At the back end, however, where new or amended parole laws or policies might lengthen prisoners’ sentences in exactly the same way if applied retroactively, courts have used a different standard and upheld the changes under the Ex Post …

Legal Innocence And Federal Habeas, Leah Litman

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Although it has long been thought that innocence should matter in federal habeas corpus proceedings, innocence scholarship has focused almost exclusively on claims of factual innocence-the kind of innocence that occurs when new evidence reveals that the defendant did not commit the offense for which he was convicted. The literature has largely overlooked cases where a defendant was convicted or sentenced under a statute that is unconstitutional, or a statute that does not apply to the defendant. The Supreme Court, however, has recently begun to recognize these cases as kinds of innocence and it has grounded its concern for them …

Qualified Immunity At Trial, Alexander A. Reinert

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Qualified immunity doctrine is complex and important, and for many years it was assumed to have an outsize impact on civil rights cases by imposing significant barriers to success for plaintiffs. Recent empirical work has cast that assumption into doubt, at least as to the impact qualified immunity has at pretrial stages of litigation. This Essay adds to this empirical work by evaluating the impact of qualified immunity at trial, a subject that to date has not been empirically tested. The results reported here suggest that juries are rarely asked to answer questions that bear on the qualified immunity defense. …

The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias

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As Parts I and II of this Essay elaborate, the examination yields three observations of relevance to constitutional law more generally: First, judge-made constitutional doctrine, though by no means the primary cause of rising inequality, has played an important role in reinforcing and exacerbating it. Judges have acquiesced to legislatively structured economic inequality, while also restricting the ability of legislatures to remedy it. Second, while economic inequality has become a cause célèbre only in the last few years, much of the constitutional doctrine that has contributed to its flourishing is longstanding. Moreover, for several decades, even the Court’s more liberal …

The Central Claiming Renaissance, Andres Sawicki

Articles

The Supreme Court has recently reinvigorated the law of patentable subject matter. But beneath the headlines proclaiming the return of limits to patent eligibility, a more profound shift has taken place: central claiming is reborn.

The Court's eligibility cases are significant outliers compared to today's run-of-the-mill patent law because claim language plays little role in their analyses. In our modern peripheral claiming system, the claim language is the near exclusive guide to the patent's boundaries. But in its earliest days, our patent system pursued a central claiming approach, in which the inventor's actual work determined the patent's scope. The Court's …

Is There Any Silver Lining To Trinity Lutheran Church, Inc. V. Comer?, Caroline Mala Corbin

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No abstract provided.

The New Separability, Lili Levi

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In Star Athletica v. Varsity Brands, the Supreme Court recently unveiled a new approach to separability. Because copyright law protects expression, not function, aesthetic features of useful articles are eligible for copyright protection only if they are separable from the functional work in which they are incorporated. But the Copyright Actdoes not define separability, and Star Athletica is the latest judicial effort to try to fill that void. Unfortunately, the new separability is open to a wide range of critiques. Relatively low-hanging fruit are the vagueness and indeterminacy of the new test, the Court's unsatisfactory attempts to avoid defining "function," …

Ascertainability: Prose, Policy, And Process, Rhonda Wasserman

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One of the most hotly contested issues in class action practice today is ascertainability – when and how the identities of individual class members must be ascertained. The courts of appeals are split on the issue, with courts in different circuits imposing dramatically different burdens on putative class representatives. Courts adopting a strict approach require the class representative to prove that there is an administratively feasible means of determining whether class members are part of the class. This burden may be insurmountable in consumer class actions because people tend not to save receipts for purchases of low-cost consumer goods, like …

Federalism, Convergence, And Divergence In Constitutional Property, Gerald S. Dickinson

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Federal law exerts a gravitational force on state actors, resulting in widespread conformity to federal law and doctrine at the state level. This has been well recognized in the literature, but scholars have paid little attention to this phenomenon in the context of constitutional property. Traditionally, state takings jurisprudence—in both eminent domain and regulatory takings—has strongly gravitated towards the Supreme Court’s takings doctrine. This long history of federal-state convergence, however, was disrupted by the Court’s controversial public use decision in Kelo v. City of New London. In the wake of Kelo, states resisted the Court’s validation of the …

The Constitutional Law Of Incarceration, Reconfigured, Margo Schlanger

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On any given day, about 2.2 million people are confined in U.S. jails and prisons—nearly 0.9% of American men are in prison, and another 0.4% are in jail. This year, 9 or 10 million people will spend time in our prisons and jails; about 5000 of them will die there. A decade into a frustratingly gradual decline in incarceration numbers, the statistics have grown familiar: We have 4.4% of the world’s population but over 20% of its prisoners. Our incarceration rate is 57% higher than Russia’s (our closest major country rival in imprisonment), nearly four times the rate in England, …