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The Incomplete Record In New York State Rifle & Pistol Association V. City Of New York, Eric J. Mogilnicki, Alexander Schultz 2020 Covington & Burling, LLP

The Incomplete Record In New York State Rifle & Pistol Association V. City Of New York, Eric J. Mogilnicki, Alexander Schultz

SMU Law Review Forum

A Second Amendment case now pending at the Supreme Court, New York State Rifle & Pistol Ass’n v. City of New York, tests the extent to which New York City may limit the movement of guns along city streets. The briefing in that case is, however, incomplete. Second Amendment jurisprudence calls for an examination of historical analogues to the firearms regulation at issue. Here, the New York State Rifle and Pistol Association asserted that there are none. This Article identifies numerous historical analogues to the City’s transportation restrictions, most of which were not identified in the briefing before the ...


The Looming Crisis In Antitrust Economics, Herbert J. Hovenkamp 2020 University of Pennsylvania Law School

The Looming Crisis In Antitrust Economics, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

As in so many areas of law and politics in the United States, antitrust’s center is at bay. It is besieged by a right wing that wants to limit antitrust even more than it has been limited over the last quarter century. On the left, it faces revisionists who propose significantly greater enforcement.

One thing the two extremes share, however, is denigration of the role of economics in antitrust analysis. On the right, the Supreme Court’s two most recent antitrust decisions at this writing reveal that economic analysis no longer occupies the central role that it once had ...


When Trademark Law Met Constitutional Law: How A Commercial Speech Theory Can Save The Lanham Act, Meaghan Annett 2020 Boston College Law School

When Trademark Law Met Constitutional Law: How A Commercial Speech Theory Can Save The Lanham Act, Meaghan Annett

Boston College Law Review

On June 19, 2017, the Supreme Court sent shockwaves through the bedrock of trademark law with its decision in Matal v. Tam. Justice Alito’s majority opinion declared the disparagement clause of the Lanham Act unconstitutional due to viewpoint discrimination. Two years later, on June 24, 2019, in Iancu v. Brunetti, the Court continued to shake the foundation of trademark law by declaring the immoral and scandalous clause of the Lanham Act unconstitutional due to viewpoint discrimination. Both the Tam and the Brunetti Courts, however, provided no enlightenment for practitioners regarding whether trademarks are commercial speech. By failing to answer ...


The Meaning Of Judicial Impartiality: An Examination Of Supreme Court Confirmation Debates And Supreme Court Rulings On Racial Equality, Stuart Chinn 2020 University of Oregon School of Law

The Meaning Of Judicial Impartiality: An Examination Of Supreme Court Confirmation Debates And Supreme Court Rulings On Racial Equality, Stuart Chinn

Utah Law Review

Three years into the Trump presidency and especially in the aftermath of Justice Kavanaugh’s elevation to the Supreme Court, the ideal of judicial impartiality is once again central in our public discourse. Because we have, in turn, a president especially skeptical of the judiciary’s separation from partisanship, heightened political polarization, and heightened stakes around judicial rulings in this age of gridlocked governance, the question of how judges approach their work has assumed a significance that goes beyond concern over the outcomes they will reach.

However, as important as the concept of judicial impartiality may be, it is worth ...


Reevaluating Politicized Identity & Notions Of An American Political Community In The Legal & Political Process, Marvin L. Astrada JD, PhD 2020 New York University - Washington, D.C.

Reevaluating Politicized Identity & Notions Of An American Political Community In The Legal & Political Process, Marvin L. Astrada Jd, Phd

Indiana Journal of Law and Social Equality

No abstract provided.


Saving America’S Privacy Rights: Why Carpenter V. United States Was Wrongly Decided And Why Courts Should Be Promoting Legislative Reform Rather Than Extending Existing Privacy Jurisprudence, David Stone 2020 St. Mary's University School of Law

Saving America’S Privacy Rights: Why Carpenter V. United States Was Wrongly Decided And Why Courts Should Be Promoting Legislative Reform Rather Than Extending Existing Privacy Jurisprudence, David Stone

St. Mary's Law Journal

Privacy rights are under assault, but the Supreme Court’s judicial intervention into the issue, starting with Katz v. United States and leading to the Carpenter v. United States decision has created an inconsistent, piecemeal common law of privacy that forestalls a systematic public policy resolution by Congress and the states. In order to reach a satisfactory and longlasting resolution of the problem consistent with separation of powers principles, the states should consider a constitutional amendment that reduces the danger of pervasive technologyaided surveillance and monitoring, together with a series of statutes addressing each new issue posed by technological change ...


Redefining Tribal Sovereignty For The Era Of Fundamental Rights, Michael Doran 2020 University of Virginia

Redefining Tribal Sovereignty For The Era Of Fundamental Rights, Michael Doran

Indiana Law Journal

This Article explains a longstanding problem in federal Indian law. For two centuries, the U.S. Supreme Court has repeatedly acknowledged the retained, inherent sovereignty of American Indian tribes. But more recently, the Court has developed the implicit-divestiture theory to deny tribal governments criminal and civil jurisdiction over nonmembers, even with respect to activities on tribal lands. Legal scholars have puzzled over this move from a territorial-based definition of tribal sovereignty to a membership-based definition; they have variously explained it as the Court’s abandonment of the foundational principles of Indian law, the product of the Court’s indifference or ...


A Serendipitous Experiment In Percolation Of Intellectual Property Doctrine, Daniel R. Cahoy, Lynda J. Oswald 2020 Penn State University

A Serendipitous Experiment In Percolation Of Intellectual Property Doctrine, Daniel R. Cahoy, Lynda J. Oswald

Indiana Law Journal

This Article fills a gap in the literature by providing novel and unique empirical evidence of the impact of percolated intellectual property doctrine versus the impact of isolated doctrine from a specialized court. It relies on the U.S. Supreme Court’s paired decisions in 2014 in Octane Fitness, LLC v. ICON Health & Fitness, Inc.15 and Highmark, Inc. v. Allcare Health Management Systems, Inc.16 to highlight a natural forum for evaluating the effects of percolation on federal legal doctrine. At issue in those cases was the fee-shifting language of Section 285 of the Patent Act: “The court in exceptional cases may award reasonable attorney fees to the prevailing party.”17 Fortuitously, Section 1117(a) of the Lanham Act, enacted twenty-two years after Section 285, contains the identical provision for the trademark and specific types of unfair competition cases that arise under it.18 Moreover, while patent appeals are now heard exclusively by the Federal Circuit, appeals from Lanham Act cases go to the regional circuits.19 The treatment of Lanham Act fee shifting in comparison to Patent Act fee shifting is thus a serendipitous natural experiment that allows a comparison of two forms of doctrinal development.

Using this experimental lens, we engage in a detailed analysis of fee-shifting cases and compare the results under percolation and specialization. Based on the literature, our hypothesis is that percolation is likely to produce doctrine that, while nonuniform, actually adheres more closely to statutory intent. We expect that the percolation blunts the type of judicial hyperactivity20 and activism that mars the decision-making of a specialized court like the Federal Circuit. And indeed, our results bear this out. They demonstrate, for the first time, that lack of percolation led to weaker doctrine in the Federal Circuit than in the regional circuits, despite identical statutory language.

Part I of this Article puts the experiment in context by explaining the role of generalist versus specialized courts in developing legal doctrine and the clear tradeoff between uniformity of doctrine and the advantages of percolation. It provides the theoretical construct that is so in need of empirical validation. Part II begins the empirical study by considering over six decades of Patent Act fee-shifting case law, beginning with the first enactment of a statutory provision in 1946. It describes how, when patent fee-shifting doctrine percolated through the regional circuits from 1946 to 1982, it was relatively stable, and outcomes were noncontroversial and largely congruent with the Supreme Court’s rulings in Octane Fitness and Highmark half a century later. However, with the 1982 introduction of the Federal Circuit as the sole voice in intermediate patent appeals, percolation ceased. Patent fee-shifting doctrine started to harden along rigid and inappropriate lines, eventually taking on the formalistic, inflexible format that was ultimately struck down by the Court in 2014.

In Part III, the paper presents the contrasting case of Lanham Act fee-shifting case law. The Lanham Act fee-shifting provision was adopted in 1974 and has always percolated through the regional circuit courts. Doctrine developed under the Lanham Act provision is less uniform than that found in patent law, as one would expect from percolating doctrine. However, we demonstrate that the Lanham Act fee-shifting doctrine was more consistent with the Supreme Court’s eventual edicts in Octane Fitness and Highmark than was the nonpercolating doctrine of the specialized Federal Circuit. Part IV concludes that percolation does indeed have clear advantages; it is more likely to result in doctrine that preserves the function of the trial court and avoids inappropriate policy making, although at the cost of uniformity in doctrine. Trade-offs indeed must be made when choosing court structures. We discuss our findings and suggest lessons to be ...


Procedural Law, The Supreme Court, And The Erosion Of Private Rights Enforcement, Suzette M. Malveaux 2020 University of Colorado Law School

Procedural Law, The Supreme Court, And The Erosion Of Private Rights Enforcement, Suzette M. Malveaux

Articles

No abstract provided.


Trust The Process: Understanding Procedural Standing Under Spokeo, Jon Romberg 2020 University of Oklahoma College of Law

Trust The Process: Understanding Procedural Standing Under Spokeo, Jon Romberg

Oklahoma Law Review

No abstract provided.


The Roberts Court And Administrative Law, Gillian E. Metzger 2020 Columbia Law School

The Roberts Court And Administrative Law, Gillian E. Metzger

Faculty Scholarship

This article assesses where the Supreme Court stands on administrative law after the 2018 term, focusing on Kisor v. Wilkie and Department of Commerce v. New York. Over the last decade, the Roberts Court had demonstrated increasing concerns about an out-of-control federal bureaucracy at odds with the constitutional order, but hadn’t pulled back significantly on administrative governance in practice. The 2018 term provided the Court with a chance to put its might where its mouth was. Yet administrative law’s denouement did not come; established administrative law doctrines remain in force, albeit narrowed.

The 2018 Term cases demonstrate that ...


The Right Family, Noa Ben-Asher, Margot J. Pollans 2020 Elisabeth Haub School of Law at Pace University

The Right Family, Noa Ben-Asher, Margot J. Pollans

Pace Law Faculty Publications

The family plays a starring role in American law. Families, the law tells us, are special. They merit, among others, tax deductions, testimonial privileges, untaxed inheritance, parental presumptions, and, over the course of the twentieth century, the Supreme Court has expanded individual rights stemming from familial relationships. In this Article, we argue that family matters as much for when it is ignored as for when it is featured. We shed light on the use of the family in the law by contrasting policies in which the family is the key unit of analysis with others in which it is not ...


How Animal Science Products, Inc. Plays A Role In The China And U.S. International Relations Saga, Tessa V. Mears 2019 University of Miami Law School

How Animal Science Products, Inc. Plays A Role In The China And U.S. International Relations Saga, Tessa V. Mears

University of Miami Inter-American Law Review

“How Animal Science Products, Inc. Plays a Role in the China and U.S. International Relations Saga” takes a look at a June 2018 Supreme Court decision that ruled federal courts are not bound to defer to a foreign government’s interpretation of its own law. This paper discusses the pros and cons of absolute deference to foreign governments in these instances, in addition to examining the effectiveness of foreign amicus briefs in antitrust cases before the Supreme Court. This paper finishes with a discussion on the current state of international relations China and the U.S., with a summary ...


Argument Analysis: Justices Skeptical Of Claim That Retirement-Plan Participants Have “Actual Knowledge” Of All Facts Included In Disclosure Documents, Natalya Shnitser 2019 Boston College Law School

Argument Analysis: Justices Skeptical Of Claim That Retirement-Plan Participants Have “Actual Knowledge” Of All Facts Included In Disclosure Documents, Natalya Shnitser

Boston College Law School Faculty Papers

The Supreme Court heard oral argument on Wednesday in Intel Corp. Investment Policy Committee v. Sulyma, a case that puts a spotlight on the disclosures that retirement plans provide to plan participants. Under the Employee Retirement Income Security Act of 1974 (ERISA), participants in employer-sponsored retirement plans have the right to challenge the prudence of decisions that plan fiduciaries make about the investment options available through the plan. ERISA sets time limits for bringing such suits. Section 413(1) of ERISA gives plaintiffs six years after the end of the fiduciary breach, violation or omission. Section 413(2) imposes a ...


Two Roads Diverged: Statutory Interpretation By The Circuit Courts And Supreme Court In The Same Cases, Lawrence Baum, James J. Brudney 2019 Ohio State University

Two Roads Diverged: Statutory Interpretation By The Circuit Courts And Supreme Court In The Same Cases, Lawrence Baum, James J. Brudney

Fordham Law Review

Scholars and judges have long disagreed on whether courts of appeals construing statutes ought to adapt their use of interpretive resources to Supreme Court approaches. If circuit courts and the Supreme Court approach statutory issues in similar ways, this can perhaps provide a measure of predictability for litigants and the public while conserving judicial resources; it may also enhance perceptions of fairness in the judicial system. Such normative arguments invite—even demand—a fuller understanding of the underlying descriptive reality: whether anything approaching uniformity or consistency actually exists. This Article aims to provide that understanding. It does so through an ...


Setting Our Feet: The Foundations Of Religious And Conscience Protections, Hanna Torline 2019 Notre Dame Law School

Setting Our Feet: The Foundations Of Religious And Conscience Protections, Hanna Torline

Notre Dame Law Review

This Note does not attempt to claim that religion and conscience are not moral equivalents, that they are not equally important, or that they do not require equal legal treatment. Nor does it attempt to claim the converse. Simply put, it argues that a consideration of the different foundations underlying conscience protections and religious protections should give pause to anyone arguing that the two are equivalent. This Note concludes that the rationales behind protecting religion and conscience are different enough to merit consideration in the debate. For if religion and conscience are treated as equivalents under the law, they will ...


Argument Preview: Court To Consider “Actual Knowledge” In Determining The Window For Filing Claims Against Retirement-Plan Fiduciaries, Natalya Shnitser 2019 Boston College Law School

Argument Preview: Court To Consider “Actual Knowledge” In Determining The Window For Filing Claims Against Retirement-Plan Fiduciaries, Natalya Shnitser

Boston College Law School Faculty Papers

Under the Employee Retirement Income Security Act of 1974 (ERISA), participants in employer-sponsored retirement plans – including 401(k) plans – have the right to challenge the prudence of decisions that plan fiduciaries make in selecting and managing the investment options available to participants. Participants must bring such suits within the time limits set by law. Section 413(1) of ERISA provides that claims must be brought within six years after the end of the fiduciary breach, violation or omission. Section 413(2) imposes a shorter limitation period when the participant has “actual knowledge” of the breach or violation. In such cases ...


Grab The Fire Extinguisher Comparing Uk Schemes Of Arrangement To U.S. Corporate Bankruptcy After Jevic, David S. Stevenson 2019 U.S. District Court, Northern District of Texas

Grab The Fire Extinguisher Comparing Uk Schemes Of Arrangement To U.S. Corporate Bankruptcy After Jevic, David S. Stevenson

Cleveland State Law Review

Corporations overwhelmed with debt frequently turn to the courts for help to restructure their credit obligations, but some courts are more helpful than others. This is especially true when creditors cannot agree on a particular resolution, let alone when some creditors will not be paid at all. International corporations often have a choice of forum—and substantive insolvency law—based on their legal and physical presence in dozens or even hundreds of countries. The UK and U.S. offer different avenues for using insolvency law to restructure debts without total liquidation, and the American avenue has become more difficult to ...


Juvenile Life Without Parole: How The Supreme Court Of Ohio Should Interpret Montgomery V. Louisiana, Grace O. Hurley 2019 Cleveland-Marshall College of Law

Juvenile Life Without Parole: How The Supreme Court Of Ohio Should Interpret Montgomery V. Louisiana, Grace O. Hurley

Cleveland State Law Review

Regardless of the numerous differences between juveniles and adults, some states, including the State of Ohio, continue to impose upon juvenile homicide offenders one of the harshest forms of punishment: life without parole. In 2016, the United States Supreme Court decided Montgomery v. Louisiana, and in doing so, the Court reiterated its previous contention that a sentence of juvenile life without parole should only be imposed upon juvenile homicide offenders whose crimes reflect "irreparable corruption." The Supreme Court of Ohio has yet to apply the Court’s Montgomery decision, but this Note suggests that if it does, the court should ...


A Call To Clarify The "Scope Of Authority" Question Of Qualified Immunity, Pat Fackrell 2019 U.S. District Court, Southern District of Texas

A Call To Clarify The "Scope Of Authority" Question Of Qualified Immunity, Pat Fackrell

Cleveland State Law Review

It is no secret the doctrine of qualified immunity is under immense scrutiny. Distinguished jurists and scholars at all levels have criticized the doctrine of qualified immunity, some calling for it to be reconsidered or overruled entirely.

Amidst this scrutiny lies uncertainty in the doctrine’s application. Specifically, the federal courts of appeal are split three ways on the question of whether an official exceeding the official’s scope of authority under state law at the time of the alleged constitutional violation can successfully assert qualified immunity. Some courts of appeal do not require the official to demonstrate he acted ...


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