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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 Constitutionality Of The Self-Pardon And Its Compatibility With Lockean Prerogative, Michael Kelley 2020 New York Law School

The Constitutionality Of The Self-Pardon And Its Compatibility With Lockean Prerogative, Michael Kelley

NYLS Law Review

No abstract provided.


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 ...


The Paradox Of Justice John Paul Stevens, Sonja R. West, Dahlia Lithwick 2020 University of Georgia School of Law

The Paradox Of Justice John Paul Stevens, Sonja R. West, Dahlia Lithwick

Scholarly Works

In the days following Justice John Paul Stevens’s death last year, numerous tributes and remembrances immediately poured forth. Former clerks, journalists, and legal scholars all grasped for the perfect words to capture the man and the justice we had just lost.

Yet many readers of these tributes and homages might have begun to wonder whether they were actually all talking about the same person. Because, taken together, the various portraits appeared to be full of contradictions. In one piece, for example, Justice Stevens is described as a frequent lone dissenter, while in another he is praised for his consensusbuilding ...


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.


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 ...


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 ...


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 ...


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 ...


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 ...


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 ...


'It Wasn't Supposed To Be Easy': What The Founders Originally Intended For The Senate's 'Advice And Consent' Role For Supreme Court Confirmation Processes, Michael W. Wilt 2019 Cedarville University

'It Wasn't Supposed To Be Easy': What The Founders Originally Intended For The Senate's 'Advice And Consent' Role For Supreme Court Confirmation Processes, Michael W. Wilt

Channels: Where Disciplines Meet

The Founders exerted significant energy and passion in formulating the Appointments Clause, which greatly impacts the role of the Senate and the President in appointing Supreme Court Justices. The Founders, through their understanding of human nature, devised the power to be both a check by the U.S. Senate on the President's nomination, and a concurrent power through joint appointment authority. The Founders initially adopted the Senate election mode via state legislatures as a means of insulation from majoritarian passions of the people too. This paper seeks to understand the Founders envisioning for the Senate's 'Advice and Consent ...


Justice Scalia Got It Right, But For The Wrong Reasons: Scalia’S Recognition Of The Supreme Court’S “Southern Exception” In U.S. Constitutional Jurisprudence And The Connection Of “Southern Exceptionalism” To “American Exceptionalism", James D. Wilets 2019 Nova Southeastern University College of Law

Justice Scalia Got It Right, But For The Wrong Reasons: Scalia’S Recognition Of The Supreme Court’S “Southern Exception” In U.S. Constitutional Jurisprudence And The Connection Of “Southern Exceptionalism” To “American Exceptionalism", James D. Wilets

University of Miami Law Review

The late Justice Scalia has repeatedly and sardonically noted that the Supreme Court has discounted the views of Southern states in determining whether there is a consensus among the states with regards to a Constitutional norm. This Article has termed that Supreme Court position as “Southern Exception” and can be viewed as an effort by some Justices to address the unique social, economic, religious and cultural traditions in the South engendered by its unique" and “exceptional” history. This Article will also explore how this "Southern Exception" affected American jurisprudence to the point of rendering it "exceptional" from much of the ...


Justice Thomas’S Concurrence Says Much—And Little—About Preemption Of State Net Neutrality Efforts, Daniel A. Lyons 2019 Boston College Law School

Justice Thomas’S Concurrence Says Much—And Little—About Preemption Of State Net Neutrality Efforts, Daniel A. Lyons

Boston College Law School Faculty Papers

A little-noticed concurrence in denial of certiorari by Justice Clarence Thomas may have caused a wrinkle in the ongoing net neutrality debate. Late last month, the Supreme Court quietly declined to review Lipschultz v. Charter Advanced Services (MN), LLC, an Eighth Circuit decision preempting state VoIP regulation. While concurring in the denial, Justice Thomas raised concerns about the underlying theory of federal preemption, noting that “[i]t is doubtful that a federal policy – let alone a policy of nonregulation – is” sufficient to support conflict preemption.

Justice Thomas’s concurrence – joined by Justice Neil Gorsuch – casts an interesting shadow on the ...


Left With No Name: How Government Action In Intra-Church Trademark Disputes Violates The Free Exercise Clause Of The First Amendment, Mary Kate Nicholson 2019 Washington and Lee University School of Law

Left With No Name: How Government Action In Intra-Church Trademark Disputes Violates The Free Exercise Clause Of The First Amendment, Mary Kate Nicholson

Washington and Lee Law Review

The United States was founded in part on the principle of freedom of religion, where citizens were free to practice any religion. The founding fathers felt so strongly about this principle that it was incorporated into the First Amendment. The Free Exercise Clause states that “Congress shall make no law . . . prohibiting the free exercise thereof . . . .” The Supreme Court later adopted the neutral principles approach to avoid Free Exercise violations resulting from courts deciding real property disputes. Without the application of the same neutral principles to intellectual property disputes between churches, however, there is real danger of violating the Free Exercise ...


An Implied Cause Of Action Under The Real Estate Settlement Procedures Act, Chris Sagers 2019 Cleveland-Marshall College of Law, Cleveland State University

An Implied Cause Of Action Under The Real Estate Settlement Procedures Act, Chris Sagers

Chris Sagers

This Note contends that consumers should have a private damages action under section 10. Part I discusses the method federal courts currently employ to determine whether a private cause of action should be recognized under a given federal statute. Part II applies this standard to section 10, and it argues that, although the federal courts currently exhibit a fairly restrictive attitude toward implication of remedies, an action should be implied under section 10 because the Real Estate Settlement Procedures Act of 1974 (RESPA) was enacted at a time when Congress relied on a more permissive judicial implication doctrine. Finally, Part ...


Dimensions Of Delegation, Cary Coglianese 2019 University of Pennsylvania Law School

Dimensions Of Delegation, Cary Coglianese

Faculty Scholarship at Penn Law

How can the nondelegation doctrine still exist when the Supreme Court over decades has approved so many pieces of legislation that contain unintelligible principles? The answer to this puzzle emerges from recognition that the intelligibility of any principle dictating the basis for lawmaking is but one characteristic defining that authority. The Court has acknowledged five other characteristics that, taken together with the principle articulating the basis for executive decision-making, constitute the full dimensionality of any grant of lawmaking authority and hold the key to a more coherent rendering of the Court’s application of the nondelegation doctrine. When understood in ...


Herrera V. Wyoming, Dylan M. Jaicks 2019 Alexander Blewett III School of Law at the University of Montana

Herrera V. Wyoming, Dylan M. Jaicks

Public Land & Resources Law Review

Stemming from the conviction of a Crow tribal member for illegal hunting, Herrera v. Wyoming reignited long-running questions concerning treaty abrogation and precedent. In an effort to clarify conflicting case law, the Supreme Court upheld the Crow Tribe’s reserved hunting rights and rejected the argument that statehood extinguished such rights.


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