Law Commons^™

Update On Patent-Related Cases In Computers And Electronics, Karishma Jiva Cartwright, Timothy T. Hsieh, Saurabh Vishnubhakat

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This paper provides an overview of patent cases relating to computer and electronics technology that were not taken up by the Supreme Court during the October 2022 term. As of this writing, the Supreme Court has not granted certiorari in any patent-related cases for its October 2021 Term. The Court has, however, called for the views of the Solictor General in four cases, indicating higher interest and raising the possibility that one or more of these cases may appear on the Court's merits docket for the October 2022 Term. Additionally, though the Court denied certiorari in Baxter v. Becton, Dickinson, …

No Sense Of Decency, Kathryn E. Miller

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For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.” In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left. Criticism of the doctrine has been fierce, but largely academic until recent years. Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day. For many, the test is seen …

Is Corporate Law Nonpartisan?, Ofer Eldar, Gabriel V. Rauterberg

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Only rarely does the United States Supreme Court hear a case with fundamental implications for corporate law. In Carney v. Adams, however, the Supreme Court had the opportunity to address whether the State of Delaware’s requirement of partisan balance for its judiciary violates the First Amendment. Although the Court disposed of the case on other grounds, Justice Sotomayor acknowledged that the issue “will likely be raised again.” The stakes are high because most large businesses are incorporated in Delaware and thus are governed by its corporate law. Former Delaware governors and chief justices lined up to defend the state’s “nonpartisan” …

The Supreme Court's Facilitation Of White Christian Nationalism, Caroline Mala Corbin

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Doug Jager, a band student of Native-American ancestry, complained about the Christian prayers at his Georgia public school’s football games. Rather than address his concerns, the school lectured him on Christianity and proposed an alternative that appeared neutral yet would result in the continuation of the Christian prayers. In striking down the school’s proposal, Judge Frank M. Johnson Jr. understood some of the ramifications of state-sponsored Christianity.

Despite Supreme Court rulings limiting Christian invocations at public-school events, government-sponsored Christian prayers and Christian symbols remain plentiful in the United States. This proliferation of government-sponsored Christianity around the country both reflects and …

The Supreme Court’S Two Constitutions: A First Look At The “Reverse Polarity” Cases, Arthur D. Hellman

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In the traditional approach to ideological classification, “liberal” judicial decisions are those that support civil liberties claims; “conservative” decisions are those that reject them. That view – particularly associated with the Warren Court era – is reflected in numerous academic writings and even an article by a prominent liberal judge. Today, however, there is mounting evidence that the traditional assumptions about the liberal-conservative divide are incorrect or at best incomplete. In at least some areas of constitutional law, the traditional characterizations have been reversed. Across a wide variety of constitutional issues, support for claims under the Bill of Rights or …

Intratextual And Intradoctrinal Dimensions Of The Constitutional Home, Gerald S. Dickinson

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The home has been lifted to a special pantheon of rights and protections in American constitutional law. Until recently, a conception of special protections for the home in the Fifth Amendment Takings Clause was under-addressed by scholars. However, a contemporary and robust academic treatment of a home-centric takings doctrine merits a different approach to construction and interpretation: the intratextual and intradoctrinal implications of a coherent set of homebound protections across the Bill of Rights, including the Takings Clause.

Intratextualism and intradoctrinalism are interpretive methods of juxtaposing non-adjoining and adjoining clauses in the Constitution and Supreme Court doctrines to find patterns …

Christian Legislative Prayers And Christian Nationalism, Caroline Mala Corbin

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No abstract provided.

State Constitutional General Welfare Doctrine, Gerald S. Dickinson

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It is black-letter law that the U.S. Supreme Court’s takings doctrine presupposes exercises of eminent domain are in pursuit of valid public uses that require just compensation. But, neither federal doctrine nor the text of the Takings Clause offers any additional constraints. The story of the Supreme Court’s takings jurisprudence is, in other words, incomplete and deserves reexamination. However, the usual protagonists, such as the Supreme Court or federal courts, are not central to this Article’s reexamination. Instead, this Article’s narrative is federalism, its characters are state courts, and its script is state constitutions.

In the post-Kelo v. New London …

The Uncertain Path Of Class Action Law, Sergio J. Campos

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For the past ten terms the Supreme Court has increased its focus on the law of class actions. In doing so, the Court has revised the law to better accord with a view of the class action as an exception to an idealized picture of litigation. This "exceptional" view of the class action has had a profound impact not only on class action law, but on procedural and substantive law in general. However, in the October 2015 term the Court decided three class action cases that support an alternative, 'functional" view of the class action, one that does not view …

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

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No abstract provided.

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 …

The Search For Third Options In A Two-Bathroom Society, Sharon R. Cruz

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This Note presents a narrative on and the history of transgender bathroom rights in this country, beginning with the reasoning for a two-bathroom society and the development of “bathroom laws”. The development of the two-bathroom society is intertwined with and rooted in beliefs that have remained prevalent since the Victorian Era, ideas about core differences between men and women, and how best to protect the virtues of women. In order to weave this narrative, this Note focuses particularly on current cases that are making their way through our Courts: the stories of Gavin Grimm and Coy Mathis, whose battles are …

From Law Reform To Lived Justice: Marriage Equality, Personal Praxis, And Queer Normativity In The United States, Francisco Valdes

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No abstract provided.

Should We Presume State Protection?, James C. Hathaway, Audrey Macklin

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Professors Hathaway and Macklin debate the legality of the “presumption of state protection” that the Supreme Court of Canada established as a matter of Canadian refugee law in the Ward decision. Professor Hathaway argues that this presumption should be rejected because it lacks a sound empirical basis and because it conflicts with the relatively low evidentiary threshold set by the Refugee Convention’s “well-founded fear” standard. Professor Macklin contends that the Ward presumption does not in and of itself impose an unduly onerous burden on claimants, and that much of the damage wrought by the presumption comes instead from misinterpretation and …

Pragmatism Rules, Elizabeth G. Porter

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The Roberts Court’s decisions interpreting the Federal Rules of Civil Procedure are reshaping the litigation landscape. Yet neither scholars, nor the Court itself, have articulated a coherent theory of interpretation for the Rules. This Article constructs a theory of Rules interpretation by discerning and critically examining the two starkly different methodologies the Roberts Court applies in its Rules cases. It traces the roots of both methodologies, explaining how they arise from — and reinforce — structural, linguistic, and epistemological tensions inherent in the Rules and the rulemaking process. Then, drawing from administrative law, it suggests a theoretical framework that accommodates …

Corporate Religious Liberty, Caroline Mala Corbin

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No abstract provided.

Constitutional Venue, Peter L. Markowitz, Lindsay C. Nash

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A foundational concept of American jurisprudence is the principle that it is unfair to allow litigants to be haled into far away tribunals when the litigants and the litigation have little or nothing to do with the location of such courts. Historically, both personal jurisdiction and venue each served this purpose in related, but distinct ways. Personal jurisdiction is, at base, a limit on the authority of the sovereign. Venue, in contrast, aims to protect parties from being forced to litigate in a location where they would be unfairly disadvantaged. The constitutional boundaries of these early principles came to be …

The Irony Of A Faustian Bargain: A Reconsideration Of The Supreme Court's 1953 United States V. Reynolds Decision, David Rudenstine

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No abstract provided.

Protecting Elites: An Alternative Take On How United States V. Jones Fits Into The Court's Technology Jurisprudence, Tamara Rice Lave

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This Article argues that the Supreme Court's technology jurisprudence can be best understood as protecting the privacy interest of elites. After providing an overview of the major technology cases from Olmstead to Kyllo, the Article focuses on the recent case of United States v Jones. The Article does not contend that the Court intended to protect elites, but instead posits that this motive likely operated at a more unconscious level because of the Justices' greater relative affluence and elevated social position.

Everyman's Exclusionary Rule: The Exclusionary Rule And The Rule Of Law (Or Why Conservatives Should Embrace The Exclusionary Rule), Scott E. Sundby

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No abstract provided.

Going Rogue: Stop The Beach Renourishment As An Object Of Morbid Fascination, Mary Doyle, Stephen J. Schnably

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Scholarly response to the Supreme Court's decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection has focused on the plurality's strong advocacy of a judicial takings doctrine. We take a different tack. While the concept of judicial takings is worthy of serious attention, it is wrong to treat the plurality opinion as an ordinary object of analysis. It is, instead, the emanation of a Court going rogue.

Three basic symptoms of the pathology stand out. First, sleight of hand. The plurality opinion purports to be about an institutional issue-can a state court commit a taking? - …

Legal Process In A Box, Or What Class Action Waivers Teach Us About Law-Making, Rhonda Wasserman

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The Supreme Court’s decision in AT&T Mobility v. Concepcion advanced an agenda found in neither the text nor the legislative history of the Federal Arbitration Act. Concepcion provoked a maelstrom of reactions not only from the press and the academy, but also from Congress, federal agencies and lower courts, as they struggled to interpret, apply, reverse, or cabin the Court’s blockbuster decision. These reactions raise a host of provocative questions about the relationships among the branches of government and between the Supreme Court and the lower courts. Among other questions, Concepcion and its aftermath force us to grapple with the …

Cracks In The Wall, A Bulge Under The Carpet: The Singular Story Of Religion, Evolution, And The U.S. Constitution, Susan Haack

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No abstract provided.

Plan B For Campaign-Finance Reform: Can The Fcc Help Save American Politics After Citizens United?, Lili Levi

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No abstract provided.

Response: The Continuing Relevance Of The Establishment Clause: A Reply To Professor Richard C. Schragger, Caroline Mala Corbin

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No abstract provided.

Business As Usual: The Roberts Court's Continued Neglect Of Adequacy And Equity Concerns In American Education, Osamudia R. James

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No abstract provided.

Breaking Free Of Chevron's Constraints: Zuni Public School District No. 89 V. U.S. Department Of Education, Osamudia R. James

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No abstract provided.

The Fourth Amendment And Terrorism, John Burkoff

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The important questions we need to ask and to answer B in the perilous times in which we live B is whether the Fourth Amendment applies in the same fashion not just to run of the mill criminals, but also to terrorists and suspected terrorists, individuals who are committing or who have committed B or who may be poised to commit B acts aimed at the destruction of extremely large numbers of people? Professor Burkoff argues that we can protect ourselves from cataclysmic threats of this sort and still maintain a fair and objective application of Fourth Amendment doctrine that …

'A Flame Of Fire': The Fourth Amendment In Perilous Times, John Burkoff

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The important questions we need to ask and to answer in the perilous times in which we live is whether the Fourth Amendment applies in the same fashion not just to run of the mill criminals, but also to terrorists and suspected terrorists, individuals who are committing or who have committed B or who may be poised to commit B acts aimed at the destruction of extremely large numbers of people? Professor Burkoff argues that we can protect ourselves from cataclysmic threats of this sort and still maintain a fair and objective application of Fourth Amendment doctrine that respects our …

Foreword: Addressing The Real World Of Racial Injustice In The Criminal Justice System, Donna Coker

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No abstract provided.