Law Commons^™

Examining Patent Eligibility, Charles Duan

St. John's Law Review

(Excerpt)

A firestorm of debate has surrounded the Supreme Court of the United States’s 2014 decision Alice Corp. Pty. Ltd. v. CLS Bank International on the doctrine of patentable subject matter eligibility under 35 U.S.C. § 101. As the Court’s leading articulation of doctrine, which generally excludes from patenting abstract ideas, laws of nature, and natural phenomena, Alice has been criticized as unpredictably vague and overly constrictive of patentability, with the effect of “decimating” patents, innovation, technological investment, and even the United States’ competitiveness against other nations. To support these criticisms and calls for reform, scholars and practitioners have frequently …

Fee Shifting, Nominal Damages, And The Public Interest, Maureen Carroll

St. John's Law Review

(Excerpt)

Half a century ago, Joseph Davis Farrar sued six defendants for seventeen million dollars. Farrar had owned and operated a school for troubled teens, and after one of the students died, the State of Texas obtained a temporary injunction that closed the school. Farrar alleged that the defendants—including William P. Hobby, Jr., the lieutenant governor of Texas—had violated his civil rights in connection with the closure. After ten years of litigation, a jury ruled in favor of five of the six defendants, but it “found that Hobby had ‘committed an act or acts under color of state law that …

From College Campus To Corner Office: The Impact Of Sffa V. Harvard On Voluntary Affirmative Action Programs, Ellen Whitehair

University of Cincinnati Law Review

No abstract provided.

The Word Is "Humility": Why The Supreme Court Needed To Adopt A Code Of Judicial Ethics, Laurie L. Levenson

Pepperdine Law Review

The Supreme Court is one of our most precious institutions. However, for the last few years, American confidence in the Court has dropped to a new low. Less than 40% of Americans have confidence in the Court and its decisions. Recent revelations regarding luxury trips, gifts, and exclusive access for certain individuals to the Justices have raised questions about whether the Justices understand their basic ethical duties and can act in a fair and impartial manner. As commentators have noted, the Supreme Court stood as the only court in America that was not governed by an ethical code. The question …

Partisanship "All The Way Down" On The U.S. Supreme Court, Lee Epstein

Pepperdine Law Review

Just as the American public is politically polarized, so too is the U.S. Supreme Court. More than ever before, a clear alignment exists between the Justices’ partisanship and their ideological leanings (known as “partisan sorting”). Disapproval of opposing-party identifiers also appears to have intensified (“partisan antipathy”). This Article offers evidence of both forms of polarization. It shows that partisan sorting has resulted in wide gaps in voting between Republican and Democratic appointees; and it supplies data on “us-against-them” judging in the form of increasing antipathy toward opposite-partisan presidents. Taken collectively, the data point not to law “all the way down,” …

The Supreme Court, Article Iii, And Jurisdiction Stuffing, James E. Pfander

Pepperdine Law Review

Reflecting on the state of the federal judiciary in the aftermath of the Biden Commission report and subsequent controversies, this Article identifies problems with the current operation of both the Supreme Court and the lower courts that make up the Article III judicial pyramid. Many federal issues have been assigned to non-Article III tribunals, courts poorly structured to offer the independent legal assessment that such Founders as James Wilson prized as they structured the federal judiciary. Meanwhile, the Supreme Court devotes growing attention to a slice of highly salient public law questions, including those presented on the shadow docket, thereby …

Administrative Law Judges And The Erosion Of The Administrative State: Why Jarkesy May Be The Straw That Breaks The Camel's Back, Nicholas D'Addio

Catholic University Law Review

The Trump-era unitary executive movement sought to expand presidential

power and shrink the influence of the administrative state through deregulation.

This movement ripples into the present moment, as Trump’s overhaul of the

federal judiciary installed a comprehensive system to delegitimize

administrative agency action— a system that is certain to endure. The

independence and role of administrative law judges (ALJs) has proven a key

target of the movement. Most recently, in the 2022 case of Jarkesy v. Securities

and Exchange Commission, the Fifth Circuit held that the dual-tiered for-cause

removal protections of SEC ALJs violated the Take Care Clause of Article …

Once Is Enough: Why Title Ix's Pervasive Requirement Necessitates Adopting The Totality Inquiry, Evan S. Thompson

University of Cincinnati Law Review

No abstract provided.

Felix Frankfurter: Liberal Lawyer, Conservative Justice, Jed S. Rakoff

Touro Law Review

The Hon. Jed S. Rakoff gave the first presentation at the conference, providing an introduction to Justice Felix Frankfurter by describing some of his accomplishments and situating his tenure on the Supreme Court in the context of the Court’s historically conservative orientation.

The Mad Hatter’S Quip: Looking For Logic In The Independent State Legislature Theory, Nicholas Maggio, Foreword By Brendan Buschi

Touro Law Review

The Supreme Court is set to hear a case that threatens the bedrock of America’s democracy, and it is not clear how it will shake out. The cumbersomely named “Independent State Legislature Theory” is at the heart of the case Moore v. Harper, which is before the Supreme Court this term. The theory holds that state legislatures should be free from the ordinary bounds of state judicial review when engaged in matters that concern federal elections. Despite being defeated a myriad of times at the Supreme Court, the latest challenge stems from a legal battle over North Carolina’s redistricting maps. …

Colonizing Queerness, Jeremiah A. Ho

University of Colorado Law Review

This Article investigates how and why the cultural script of inequality persists for queer identities despite major legal advancements such as marriage, anti-discrimination, and employment protections. By regarding LGBTQ legal advancements as part of the American settler colonial project, I conclude that such victories are not liberatory or empowering but are attempts at colonizing queer identities. American settler colonialism’s structural promotion of a normative sexuality illustrates how our settler colonialist legacy is not just a race project (as settler colonialism is most widely studied) but also a race-gender-sexuality project. Even in apparent strokes of progress, American settler colonialism’s eliminationist motives …

Foreword: The Life, Work & Legacy Of Felix Frankfurter, The Justice Known As “Ff”, Rodger D. Citron

Touro Law Review

No abstract provided.

John Marshall And Felix Frankfurter: An Icon And A Disappointment?, William E. Nelson

Touro Law Review

This article shows how Chief Justice John Marshall first developed the doctrine of judicial restraint in Marbury v. Madison to assure the public that the Supreme Court would not engage in politically oriented judicial review as colonial courts had in holding Parliament’s 1765 Stamp Act unconstitutional. Justice Felix Frankfurter, in contrast, adopted judicial restraint differently—by reading the scholarship of James Bradley Thayer. This article also shows that Frankfurter did not abandon his commitment to judicial restraint when during his years on the bench it began to serve conservative purposes rather than the progressive purposes it had once served.

Lost In The Thicket, Brad Snyder

Touro Law Review

As part of a symposium on his biography of Felix Frankfurter, Democratic Justice, Brad Snyder revisits Baker v. Carr and explores the contrasts between Justice William Brennan’s judicially supremacist majority opinion and Frankfurter’s departmentalist dissent and unheeded warnings about empowering the judiciary. As Frankfurter wrote in his Baker dissent, he placed more faith in the U.S. Congress, as opposed to the judiciary, to protect democracy.

Abortion And Affirmative Action: The Fragility Of Supreme Court Political Decision-Making, William E. Nelson

Indiana Journal of Law and Social Equality

This Article shows, on the basis of new evidence, that the canonical case of Marbury v. Madison has been grossly misinterpreted and that as a result of the misinterpretation we cannot understand what is wrong with contemporary cases such as Dobbs v. Jackson Women’s Health Organization and Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.

The Article will proceed as follows. Because Marbury cannot be properly understood without understanding the eighteenth-century background against which it was decided, Part I will examine legal practices in colonial and post-Revolutionary America, focusing on cases in which judicial review emerged …

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

From Andy Warhol To Barbie: Copyright’S Fair Use Doctrine After Andy Warhol Foundation V. Goldsmith, Niki Kuckes

Roger Williams University Law Review

No abstract provided.

Three Stories: A Comment On Pritchard & Thompson’S A History Of Securities Laws In The Supreme Court, Harwell Wells

Seattle University Law Review

Adam Pritchard and Robert Thompson’s A History of Securities Laws in the Supreme Court should stand for decades as the definitive work on the Federal securities laws’ career in the Supreme Court across the twentieth century.1 Like all good histories, it both tells a story and makes an argument. The story recounts how the Court dealt with the major securities laws, as well the agency charged with enforcing them, the Securities and Exchange Commission (SEC), and the rules it promulgated, from the 1930s into the twenty-first century. But the book does not just string together a series of events, “one …

The Pioneers, Waves, And Random Walks Of Securities Law In The Supreme Court, Elizabeth Pollman

Seattle University Law Review

After the pioneers, waves, and random walks that have animated the history of securities laws in the U.S. Supreme Court, we might now be on the precipice of a new chapter. Pritchard and Thompson’s superb book, A History of Securities Law in the Supreme Court, illuminates with rich archival detail how the Court’s view of the securities laws and the SEC have changed over time and how individuals have influenced this history. The book provides an invaluable resource for understanding nearly a century’s worth of Supreme Court jurisprudence in the area of securities law and much needed context for …

Anti-Liberal Rights Retrenchment As A Threat To The Rule Of Law, Paul Gowder

Emory Law Journal

The Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, overturning the half-century old constitutional right to reproductive choice, is only the most prominent example of a global series of attacks on rights of personal, sexual, and family autonomy. The attacks on LGBTQ+ rights by the Christian nationalist governments of Hungary and Poland are another important example. A cadre of anti-liberal scholars and public intellectuals such as Patrick Deneen, Sohrab Ahmari, and Adrian Vermeule serve as the intelligentsia within this global reactionary movement, advocating for the direct importation of far-right values into the law of western states …