Law Commons^™

In Minerva V. Hologic, The U.S. Supreme Court Reins In The Equitable Doctrine Of Assignor Estoppel, Christopher M. Holman

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Assignor estoppel is an equitable remedy that prohibits an assignor of a patent, or one in privity with an assignor, from attacking the validity of that patent when he is sued for infringement by the assignee. On June 29, 2021, the U.S. Supreme Court issued its decision in Minerva v. Hologic, holding that while AE remains a viable doctrine, the Federal Circuit has on many occasions, including the instant case, applied the doctrine in an overly expansive manner, particularly in cases where the patent claims at issue differ substantially from any patent claims that were in existence at the time …

The Supreme Court’S Devaluation Of U.S. Patents, Christopher M. Holman

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In a span of three weeks during the spring of 2017, the U.S. Supreme Court issued three patent decisions, bringing the total number of patent decisions for the 2016-2017 term to six. This means that the October 2016 term ties the previous record of six patent decisions in the October 2014 term. This represents a tremendous increase in the number of patent decisions compared to earlier times, and particularly the early days of the Federal Circuit. For reference, during the first quarter of a century the Federal Circuit was in existence, the Supreme Court heard on average less than one …

Justice Scalia's Truthiness And The Virtues Of Judicial Candor, Allen K. Rostron

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Antonin Scalia is by far the Supreme Court’s greatest wit and most colorful personality. His judicial opinions are also remarkably passionate and frank. He has received intense criticism for supposedly being “too political” in some of his opinions, such as his scorching dissent in last year’s case about Arizona laws aimed at illegal immigrants or his bitter denunciation of the Court’s last major ruling on the detention of suspected terrorists. But what purpose is really served by judges hiding their motivations behind a false veneer of detachment and stilted formalism? Scalia can be so refreshingly candid in his judicial work …

Pragmatism, Paternalism, And The Constitutional Protection Of Commercial Speech, Allen K. Rostron

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Two key perspectives have emerged in the Supreme Court’s decisions about First Amendment protection of commercial speech. The anti-paternalism view, originally embraced by the Court’s most liberal members but now advanced by Clarence Thomas, holds that the government has only a narrow interest in preventing false advertising. To the extent that commercial speech is not fraudulent or misleading, the government must simply let people hear it and decide for themselves whether they find it persuasive. Other judges argue that courts need to be more pragmatic about the effects of advertising and more deferential to government attempts to promote public health …

Affirmative Action, Justice Kennedy, And The Virtues Of The Middle Ground, Allen K. Rostron

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When the Supreme Court hears arguments this fall about the constitutionality of affirmative action policies at the University of Texas, attention will be focused once again on Justice Anthony Kennedy. With the rest of the Court split between a bloc of four reliably liberal jurists and an equally solid cadre of four conservatives, the spotlight regularly falls on Kennedy, the swing voter that each side in every closely divided and ideologically charged case desperately hopes to attract. Critics condemn Kennedy for having an unprincipled, capricious, and self-aggrandizing style of decision-making. Though he is often decisive in the sense of casting …

Justice Breyer's Triumph In The Third Battle Over The Second Amendment, Allen K. Rostron

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In recent years, the Supreme Court has issued two landmark decisions about the constitutional right to keep and bear arms. District of Columbia v. Heller rejected the notion that the Second Amendment protects only organized militia activities, and McDonald v. City of Chicago found that the right to keep and bear arms applies to state and local governments via incorporation into the Fourteenth Amendment. Those decisions left important questions unanswered. In particular, the Supreme Court declined to specify what level of scrutiny or test should be used to assess the validity of gun laws. Lower courts are now wrestling with …

The Past And Future Role Of The Second Amendment And Gun Control In Fights Over Confirmation Of Supreme Court Nominees, Allen K. Rostron

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America’s elected representatives do many things well, but making firearms policies and assessing Supreme Court nominees are two with which they have struggled.

Gun control is one of the most volatile public policy issues. Many contend that a heavy price is paid every day because of inadequate controls on firearms. Others believe that legal restrictions on guns are counterproductive and that the freedom to have guns is in peril. This gun control versus gun rights debate has become deeply enmeshed in the political culture wars.

Similarly, few have good things to say about how the U.S. Senate reviews nominations of …

Supreme Court Report 2006-2007: Closing Of The Courthouse Doors?, Julie M. Cheslik, Andrea Mcmurty, Kristin Underwood

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This article reviews the decisions of the U.S. Supreme Court for the 2006-2007 term focusing on decisions of particular relevance to state and local government. In reviewing those decisions, we focus on the shifts in the Court over time on those issues.

The expectation that the Supreme Court would shift to the right came to fruition in the 2006-07 term by the sheer lack of clear decisions on the merits. Time and again, the Court decided cases on the standing issue, never reaching the merits and frustrating litigants and citizens attempts to define their rights. Yale law professor Judith Resnick …

The Supreme Court Report 2005-06, Julie M. Cheslik, Jamie Landes, Leah Pollema, Michael Shelton

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This article reviews the decisions of the U.S. Supreme Court for the 2005-2006 term focusing on decisions of particular relevance to state and local government. The Court's 2005-06 Term began with much speculation as one, then a second new Justice joined the Court. After the close of the 2004-05 Term, the Court suffered the loss of Chief Justice William Rehnquist, who succumbed to the thyroid cancer that had plagued him during that Term. President Bush ultimately replaced him with Judge John G. Roberts, who began the new Term and authored his fi rst opinion, the traditional 9-0 opinion of a …

Demythologizing The Legal History Of The Jehovah’S Witnesses And The First Amendment, Allen K. Rostron

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In 2002, for the first time in more than 20 years, the Supreme Court of the United States decided a case involving the First Amendment rights of Jehovah's Witnesses. The Court ruled that Witnesses cannot be required to give their names to local government authorities in order to obtain permits before going door-to-door to distribute their publications and preach their religious message.

While the amount of new law being generated by the religion's followers has slowed, scholars have finally begun in recent years to give significant attention to the legal history of the Jehovah's Witnesses, and, in particular, to their …