Law Commons^™

Fool Me Twice: Zubik V. Burwell And The Perils Of Judicial Faith In Government Claims, Mark L. Rienzi

Scholarly Articles

This article proceeds in three parts. Part I examines the three government concessions that made the Supreme Court’s Zubik decision possible and how those concessions ultimately revealed that it is possible to protect both contraceptive access and religious liberty. Part II discusses how the circuit courts were brought to emphatically adopt positions the government would ultimately abandon under the slightest pressure. Part III concludes with some key lessons lower courts should take from Zubik to better protect the integrity of both the court system and religious-liberty laws.

Against Settlement Of (Some) Patent Cases, Megan M. La Belle

Scholarly Articles

For decades now, there has been a pronounced trend away from adjudication and toward settlement in civil litigation. This settlement phenomenon has spawned a vast critical literature beginning with Owen Fiss’s seminal work, Against Settlement. Fiss opposes settlement because it achieves peace rather than justice, and because settlements often are coerced due to power and resource imbalances between the parties. Other critics have questioned the role that courts play (or ought to play) in settlement proceedings, and have argued that the secondary effects of settlement – especially the lack of decisional law – are damaging to our judicial system. Still, …

Interested, But Not Injured: The Compromised Status Of Qui Tam Plaintiffs Under The Amended False Claims Act And The Return Of The Citizen Suit, A.G. Harmon

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No abstract provided.

“Reverse” Patent Declaratory Judgment Actions: A Proposed Solution For Medtronic, Megan M. La Belle

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The United States Supreme Court is scheduled to hear arguments in Medtronic, Inc. v. Boston Scientific Corp. – the first patent case of the term – on November 5, 2013. The issue in Medtronic is whether the burden of proof in patent declaratory judgment actions should be on the patent owner to prove infringement or on the accused infringer to prove non-infringement. Ordinarily, the patent owner bears the burden of proving infringement and the declaratory posture of a suit does not shift that burden. In Medtronic, however, the Federal Circuit created an exception for “MedImmune-type” suits, meaning declaratory judgment actions …

The Future Of Internet-Related Personal Jurisdiction After Goodyear Dunlap Tires V. Brown And J. Mcintyre V. Nicastro, Megan M. La Belle

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For the past two decades, courts have struggled with the question of how Internet-related contacts should be treated in the personal jurisdiction analysis. Some courts have utilized the traditional minimum contacts framework of International Shoe v. Washington , while others have devised new tests to accommodate this technological evolution. So when the US Supreme Court granted certiorari in two personal jurisdiction cases last term— Goodyear Dunlap Tires v. Brown and J. McIntyre v. Nicastro — many believed these unsettled questions of Internet related personal jurisdiction would finally be resolved. Disappointingly for litigants, lower courts, and academics, however, Goodyear and McIntyre …

Patent Law As Public Law, Megan M. La Belle

Scholarly Articles

Historically, patent litigation has been viewed and treated primarily as private law litigation, as opposed to public law litigation. This paradigm has begun to shift, however, as various stakeholders have come to acknowledge the profound impact that the patent system – and particularly invalid patents – have on the public at large. Yet, in order for a public law regime to succeed, there must be a host of enforcement mechanisms available, including the opportunity for privately-initiated litigation.

Public interest organizations have played a prominent role in the enforcement of certain public rights, such as free speech, equal protection, and environmental …

Bounty Hunters And Whistleblowers: Constitutional Concerns For False Claims Actions After Passage Of The Patient Protection And Affordable Care Act Of 2010, A.G. Harmon

Scholarly Articles

Recently, the False Claims Act (FCA) was amended by the Patient Protection and Affordable Care Act of 2010 (PPACA). In a five-word alteration, the PPACA has greatly expanded the reach of the statute, in terms of how a case must be proven, who has to prove it, and what circumstances, if any, will bar the proceeding from going forward." Additionally, new constitutional and policy concerns stem from the increased governmental discretion in deciding which suits can and cannot proceed.6 The problems resulting from the government's expanded discretion go to the very nature of qui tam actions themselves.

This article will …

Standing To Sue In The Myriad Genetics Case, Megan M. La Belle

Scholarly Articles

In recent years, the topic of gene patents has generated significant debate among medical researchers, biotechnology companies, academics, policymakers, and patent lawyers. The controversy implicates a wide range of legal and policy questions, including whether human genes should be patentable, and whether such patents stimulate or stifle innovation. In Association for Molecular Pathology v. Myriad Genetics, a high-profile case recently before the United States Court of Appeals for the Federal Circuit, a divided panel of the court addressed these questions. Before reaching the merits of the case, however, the court had to decide whether the plaintiffs had standing to sue …

Virtual Contacts In Patent Cases: How Should Internet-Related Contacts Affect The Personal Jurisdiction Analysis?, Megan M. La Belle

Scholarly Articles

In the 1990s, when the Internet was still considered novel, courts struggled with the question of how Internet-related contacts should be treated in the personal jurisdiction analysis. So when Zippo Manufacturing v. Zippo DOT Com established an apparently easy-to-apply test for deciding whether a defendant’s virtual contacts are sufficient for personal jurisdiction, many courts embraced it . To date, however, the Federal Circuit has neither adopted nor rejected the Zippo approach, leaving litigants and lower courts in patent cases with little guidance on the issue. Although a recent decision suggests that the Federal Circuit recognizes the limitations of Zippo, it …

The Catalyst Calamity: Post-Buckhannon Fee-Shifting In Environmental Litigation And A Proposal For Congressional Action, Lucia A. Silecchia

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Acknowledging the importance of citizen suits in giving teeth to environmental laws, and recognizing the often prohibitive costs of such litigation, Congress often included fee-shifting provisions in most environmental citizen suit statutes. It is well established that plaintiffs who win a judicial ruling in their favor qualify for the benefits of such fee-shifting. What is less clear is whether those parties whose successes come outside the courtroom - as is often true in the environmental context - can also recover fees. In the past, the so-called “catalyst theory” answered this question affirmatively. However, in 2001, the catalyst theory was dealt …

On-The-Job Training In Appellate Litigation Skills: A Comparative Study, Michael F. Noone Jr.

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Each year, hundreds of federal attorneys brief and argue criminal cases before courts of appeal, but the only federally- sponsored training programs in appellate advocacy are devoted primarily to civil appeals. Conversations with members of the staff of the Practicing Law Institute and the Federal -and American Bar Associations established that short courses in appellate litigation skills are not routinely offered. Therefore, we can conclude that most government attorneys involved in criminal appeals learn or improve their appellate litigation skills on the job.

This article is about their training. While there is a wealth of legal literature on appellate advocacy …

The Justice Conundrum, Marshall J. Breger

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The litigation explosion threatens to overwhelm the capacity of our judicial institutions to respond adequately to the needs of our society. An understanding of this crisis can be achieved only through the questioning of a number of principles central to our justice system. This essay will explore the contours of these questions and evaluate various responses to the litigation crisis. By their nature, the solutions suggested can be only tentative.

Litigation Primer For Standing Dismissals, John H. Garvey

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Professor Carvey examines a very theoretical issue-whether standing objections are jurisdictional, claim-related, or both-to resolve a rery practical problem-hotc to characterize motions to dismiss for lack of standing, As he notes. the choice of characterization under the Federal Rules of Ciril Procedure has important practical consequences for the litigator, involving cridentiary limitations, consolidation requirements, and the resjudcata effcct of dismissal. Professor Carrey suggests. as a solution to the litigator's dilemma, that both rule 12(b k I and rule 121b t16 are appropriate means by which to raise standing objections in the constitutional sense since a determination that the plaintiff lacks …

Attorney’S Affidavit In Litigation Proceedings, John H. Garvey

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No abstract provided.