Law Commons^™

Promoting Innovation, Matthew Sag, Spencer Weber Waller

Faculty Articles

This Essay proceeds as follows. We briefly introduce the concept of creative destruction and its place in Schumpeter’s work in Part II. In Part III we explain why a truly Schumpeterian competition policy demands more than a laissez faire approach. We explain why the law must preserve opportunities and incentives for creative destruction at all stages of innovation and we review four key policy areas of antitrust law from this innovation-focused perspective: unilateral conduct cases (Part III.A), cases at the intersection of IP and antitrust (Part III.B), Sherman Act section 1 cases (Part III.C), and merger policy (Part III.D). In …

A Functional Theory Of Congressional Standing, Jonathan R. Nash

Faculty Articles

The Supreme Court has offered scarce and inconsistent guidance on congressional standing—that is, when houses of Congress or members of Congress have Article III standing. The Court’s most recent foray into congressional standing has prompted lower courts to infuse analysis with separation-of-powers concerns in order to erect a high standard for congressional standing. It has also invited the Department of Justice to argue that Congress lacks standing to enforce subpoenas against executive branch actors.

Injury to congressional litigants should be defined by reference to Congress’s constitutional functions. Those functions include gathering relevant information, casting votes, and (even when no vote …

Copyright Trolling, An Empirical Study, Matthew Sag

Faculty Articles

This Article proceeds as follows: Part II locates MDJD suits within the broader context of the IP troll debate. It explains why attempts to define copyright trolls in terms of status—i.e., in terms of the plaintiff’s relationship to the underlying IP—are ultimately flawed and suggests a conduct-focused approach based on identifying systematic opportunism. Part II explains why MDJD lawsuits have all of the hallmarks of copyright trolling, and it explores the basic economics of MDJD litigation. It then presents empirical data documenting the astonishing rise of MDJD lawsuits over the past decade. Part III explores the role of statutory damages …

The Commander In Chief's Authority To Combat Climate Change, Mark P. Nevitt

Faculty Articles

This Article first outlines the myriad national security threats posed by a changing climate, addressing the President’s and Congress’s powers to plan, study, and invest in climate-resilient infrastructure at military installations that are vulnerable to a rise in sea levels. Second, this Article asserts that climate change will stress and test persistent separation of powers concerns at home and abroad. Specifically, the President has less authority to protect military infrastructure domestically in the face of congressional intransigence, but has comparably greater authority as Commander in Chief to respond to climate-induced events abroad. Third, this Article argues that the threat of …

Litigating State Interests: Attorneys General As Amici, Margaret H. Lemos, Kevin M. Quinn

Faculty Articles

An important strain of federalism scholarship locates the primary value of federalism in how it carves up the political landscape, allowing groups that are out of power at the national level to flourish—and, significantly, to govern—in the states. On that account, partisanship, rather than a commitment to state authority as such, motivates state actors to act as checks on federal power. Our study examines partisan motivation in one area where state actors can, and do, advocate on behalf of state power: the Supreme Court. We compiled data on state amicus filings in Supreme Court cases from the 1979–2013 Terms and …

Equality And Difference - The Restrained State, Martha Albertson Fineman

Faculty Articles

Contemporary American law, culture, and political theory restrain the concept of equality as a tool of social justice. Equality in conjunction with a strong emphasis on personal liberty operates as a mandate for curtailing state action, rather than an aspirational measure of the comparative wellbeing of individuals. As a check on state involvement, our cramped notion of equality limits the state's ability to affirmatively address economic, political, social, and structural inequalities.

As interpreted in modern Supreme Court jurisprudence, the Equal Protection Clause of the U.S. Constitution actually works to restrict the remedial ability of the state. Equality is understood as …

Procedural Triage, Matthew B. Lawrence

Faculty Articles

Prior scholarship has assumed that the inherent value of a “day in court” is the same for all claimants, so that when procedural resources (like a jury trial or a hearing) are scarce, they should be rationed the same way for all claimants. That is incorrect. This Article shows that the inherent value of a “day in court” can be far greater for some claimants, such as first-time filers, than for others, such as corporate entities and that it can be both desirable and feasible to take this variation into account in doling out scarce procedural protections. In other words, …

Preventing Balkanization Or Facilitating Racial Domination: A Critique Of The New Equal Protection, Darren L. Hutchinson

Faculty Articles

The Supreme Court requires that equal protection plaintiffs prove defendants acted with discriminatory intent. The intent rule has insulated from judicial invalidation numerous policies that harmfully impact racial and ethnic minorities. Court doctrine also mandates that state actors generally remain colorblind. The colorblindness doctrine has led to the judicial invalidation of policies designed to ameliorate the conditions of racial inequality. Taken together, these two equality doctrines facilitate racial domination. The Court justifies this outcome on the ground that the Constitution does not protect "group rights. "

Constitutional law theorists have criticized these aspects of equal protection doctrine. Recently, however, some …