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Full-Text Articles in Law
From The Frontlines Of The Modern Movement To End Forced Arbitration And Restore Jury Rights, F. Paul Bland, Myriam Gilles, Tanuja Gupta
From The Frontlines Of The Modern Movement To End Forced Arbitration And Restore Jury Rights, F. Paul Bland, Myriam Gilles, Tanuja Gupta
Chicago-Kent Law Review
No abstract provided.
#Squadgoals: A Response To Seth Waxman, Amelia Smith Rinehart
#Squadgoals: A Response To Seth Waxman, Amelia Smith Rinehart
Chicago-Kent Journal of Intellectual Property
No abstract provided.
A Court Divided, Shubha Ghosh
A Court Divided, Shubha Ghosh
Chicago-Kent Journal of Intellectual Property
No abstract provided.
Drd Response To Seth P. Waxman's Article, Donald R. Dunner
Drd Response To Seth P. Waxman's Article, Donald R. Dunner
Chicago-Kent Journal of Intellectual Property
No abstract provided.
Charting Supreme Court Patent Law, Near And Far, Joseph Scott Miller
Charting Supreme Court Patent Law, Near And Far, Joseph Scott Miller
Chicago-Kent Journal of Intellectual Property
No abstract provided.
May You Live In Interesting Times: Patent Law In The Supreme Court, Seth P. Waxman
May You Live In Interesting Times: Patent Law In The Supreme Court, Seth P. Waxman
Chicago-Kent Journal of Intellectual Property
No abstract provided.
How Much Has The Supreme Court Changed Patent Law, Paul Gugliuzza
How Much Has The Supreme Court Changed Patent Law, Paul Gugliuzza
Chicago-Kent Journal of Intellectual Property
The U.S. Supreme Court has decided a remarkable number of patent cases in the past decade, particularly as compared to the first twenty years of the Federal Circuit’s existence. No longer is the Federal Circuit “the de facto Supreme Court of patents,” as Mark Janis wrote in 2001. Rather, it seems the Supreme Court is the Supreme Court of patents. In the article at the center of this symposium, Judge Timothy Dyk of the Federal Circuit writes that the Supreme Court’s decisions “have had a major impact on patent law,” citing, among other evidence, the Court’s seventy percent reversal rate …
How Can The Supreme Court Not “Understand” Patent Law?, Gregory Reilly
How Can The Supreme Court Not “Understand” Patent Law?, Gregory Reilly
Chicago-Kent Journal of Intellectual Property
The Supreme Court does understand patent law. This invited Essay responds to Federal Circuit Judge Dyk’s remarks at the Chicago-Kent Supreme Court IP Review, in particular, his observation that the patent “bar and the academy have expressed skepticism that the Supreme Court understands patent law well enough to make the governing rules” (a view Judge Dyk did not endorse). The idea that the Supreme Court does not understand the law of patents is implausible. Even more generous interpretations of this criticism – that the Supreme Court insufficiently understands innovation policy, insufficiently understands the patent system that Congress desired in creating …
Response To Judge Timothy B. Dyk, Donald R. Dunner
Response To Judge Timothy B. Dyk, Donald R. Dunner
Chicago-Kent Journal of Intellectual Property
No abstract provided.
Is The Supreme Court Concerned With Patent Law, The Federal Circuit, Or Both: A Response To Judge Timothy B. Dyk, Timothy R. Holbrook
Is The Supreme Court Concerned With Patent Law, The Federal Circuit, Or Both: A Response To Judge Timothy B. Dyk, Timothy R. Holbrook
Chicago-Kent Journal of Intellectual Property
This essay is a response to Hon. Timothy B. Dyk, Thoughts on the Relationship Between the Supreme Court and the Federal Circuit, 16 CHI.-KENT J. OF INTELL. PROP. 67 (2016). In it, I address the reasons for the Supreme Court's engagement with patent law. In other words, is the Court interested in patent law itself, or is there something about the Federal Circuit as an institution that has garnered the Court's gaze. I conclude it is a combination of the two. The Court is concerned with certain aspects of patent doctrine, but it is also concerned with the Federal Circuit, …
Thoughts On The Relationship Between The Supreme Court And The Federal Circuit, Timothy B. Dyk
Thoughts On The Relationship Between The Supreme Court And The Federal Circuit, Timothy B. Dyk
Chicago-Kent Journal of Intellectual Property
No abstract provided.
Abuse Of Supreme Court Precedent: The "Historic Kinship", David W. Barnes
Abuse Of Supreme Court Precedent: The "Historic Kinship", David W. Barnes
Chicago-Kent Journal of Intellectual Property
In Sony Corp. of America v. Universal City Studios, the Supreme Court applied a doctrine formulated for patent law to an issue arising in copyright law. The Court supplied a rationale for doing so by identifying a “historic kinship” between patent and copyright law based on fundamental goals of intellectual property law. The Court considered how the rationale applied in the particular factual context involved. The Court cautioned that the propriety of extending a doctrine developed in one intellectual property regime to another depends on the particular legal issue involved. Despite the importance of ensuring that new rules are …
Panel Discussion: Remembering Justice Scalia In Ip Cases, Graeme Dinwoodie
Panel Discussion: Remembering Justice Scalia In Ip Cases, Graeme Dinwoodie
Chicago-Kent Journal of Intellectual Property
No abstract provided.
Restoring The Balancing Test: A Better Approach To Fair Use In Copyright, Charlie Penrod
Restoring The Balancing Test: A Better Approach To Fair Use In Copyright, Charlie Penrod
Chicago-Kent Journal of Intellectual Property
Fair use analyses are overly vague and abstract. While the Copyright Act established four factors for courts to consider when determining if an alleged infringer’s use of copyrighted work is “fair”, these factors are not susceptible to easy interpretation. More importantly, once these factors have been interpreted, a trier of fact is instructed to balance these factors against each other. No effective method currently exists in guiding courts as to how to balance inherently disparate factors against each other, either in terms of intensity of the factors or how one factor might balance against another totally different factor. This article …
Federal Circuit Exclusive Appellate Patent Jurisdiction: A Response To Chief Judge Wood, Harold C. Wegner
Federal Circuit Exclusive Appellate Patent Jurisdiction: A Response To Chief Judge Wood, Harold C. Wegner
Chicago-Kent Journal of Intellectual Property
No abstract provided.
Copyright And Freedom Of Expression: Saving Free Speech From Advancing Legislation, Amanda Beshears Cook
Copyright And Freedom Of Expression: Saving Free Speech From Advancing Legislation, Amanda Beshears Cook
Chicago-Kent Journal of Intellectual Property
The Supreme Court has expressly recognized the possibility of a First Amendment defense to copyright infringement claims, but it has never actually found such a defense to apply to a case before it. And nearly every year, Congress enacts or attempts to enact more legislation that restricts speech under the banner of the copyright clause. The problem is that the natural right of free speech is being depleted by the legislatively granted right of intellectual property, putting both individual liberty and the public good at risk. Congress and the courts both must begin to acknowledge that in the common law …
Dred Scott And The Crisis Of 1860, Louise Weinberg
Dred Scott And The Crisis Of 1860, Louise Weinberg
Chicago-Kent Law Review
Recent suggestions to the contrary notwithstanding, the Dred Scott decision and the controversy over the extension of slavery into the territories were at the very center of the crisis of 1860. This paper fills in the social, political, economic, and legal backgrounds of that crisis in order to clarify the centrality of Dred Scott in the election of Abraham Lincoln and to the ensuing destruction of the Union.
Scott V. Sandford: The Court's Most Dreadful Case And How It Changed History, Paul Finkelman
Scott V. Sandford: The Court's Most Dreadful Case And How It Changed History, Paul Finkelman
Chicago-Kent Law Review
Dred Scott, without doubt, is the most controversial case in the history of the United States Supreme Court. Unlike the controversies that surround other decisions of the Court, the controversy surrounding Dred Scott does not turn on if the outcome or Chief Justice Taney's analysis was wrong, but rather on why the outcome and Chief Justice Taney's analysis were wrong. This article focuses on the political goals Taney attempted to accomplish through his decision in Dred Scott. Though there existed reasons for Taney's belief that his decision in Dred Scott would once and for all end the political …
Thirteen Ways Of Looking At Dred Scott, Jack M. Balkin, Sanford Levinson
Thirteen Ways Of Looking At Dred Scott, Jack M. Balkin, Sanford Levinson
Chicago-Kent Law Review
Dred Scott v. Sandford is a classic case that is relevant to almost every important question of contemporary constitutional theory.
Dred Scott connected race to social status, to citizenship, and to being a part of the American people. One hundred fifty years later these connections still haunt us; and the twin questions of who is truly American and who America belongs to still roil our national debates.
Dred Scott is a case about threats to national security and whether the Constitution is a suicide pact. It concerns whether the Constitution follows the flag and whether constitutional rights obtain in federally …
Rethinking Dred Scott: New Context For An Old Case, Austin Allen
Rethinking Dred Scott: New Context For An Old Case, Austin Allen
Chicago-Kent Law Review
Scholars have misunderstood the context in which Dred Scott emerged. Leading historical interpretations of the decision have relied too heavily on accounts developed by antebellum Republicans and on mid-twentieth-century legal theory. This article offers an alternative account of Dred Scott's origins and argues that the decision emerged from a series of unintended consequences resulting from the Taney Court's efforts to incorporate a Jacksonian vision of governance into constitutional law. By 1857, this effort had generated tensions that made a sweeping decision like Dred Scott nearly unavoidable. The inescapable nature of Dred Scott carries implications for constitutional theorists, especially those …
The New Fiction: Dred Scott And The Language Of Judicial Authority, Mark A. Graber
The New Fiction: Dred Scott And The Language Of Judicial Authority, Mark A. Graber
Chicago-Kent Law Review
Claims that the Justices in Dred Scott abandoned a tradition of judicial restraint rely on an anachronistic measure for judicial activism. Antebellum Justices asserted that laws were unconstitutional only when restraining state officials. Judicial etiquette, in their opinion, required more circumspection when imposing constitutional limits on a coordinate branch of the national government. Contrary to accepted wisdom, the Justices before the Civil War imposed constitutional limitations on federal power in approximately twenty cases. They did so, however, without explicitly declaring federal legislation unconstitutional. The Justices in some federal cases ignored the plain meaning of federal statutes on the ground that …
Dred Scott: Tiered Citizenship And Tiered Personhood, Henry L. Chambers Jr.
Dred Scott: Tiered Citizenship And Tiered Personhood, Henry L. Chambers Jr.
Chicago-Kent Law Review
The Dred Scott Court accepted and perpetuated the notion that our Constitution afforded multiple tiers of citizenship and multiple tiers of personhood through which different groups of citizens and different groups of persons would receive varying sets of rights. Through their language and interpretation, the Reconstruction Amendments largely resolved this issue by providing a formal equality that created a single tier of citizenship and a single tier of personhood. Though, as a formal matter, tiered citizenship and tiered personhood are unacceptable, the issue is not fully resolved as a practical matter. Tiered citizenship and tiered personhood may exist when the …
"Lewd And Immoral": Nude Dancing, Sexual Expression, And The First Amendment, Kevin Case
"Lewd And Immoral": Nude Dancing, Sexual Expression, And The First Amendment, Kevin Case
Chicago-Kent Law Review
Nude dancing is a particularly awkward fit with the First Amendment. Should the Constitution protect this kind of "speech?" The question has vexed the Supreme Court. While most of the Court has agreed that nude dancing falls within the First Amendment, plurality opinions relegate nude dancing to the "outer ambit" of shielded speech, setting forth confusing and ultimately unsustainable legal tests.
This Note contends that nude dancing can convey powerful and particularized erotic messages of sexual desire, availability, and appreciation of the nude female form. It is not mere "conduct." Moreover, arguments for categorizing nude dancing as "low value" speech, …
The Uses Of History In The Supreme Court's Takings Clause Jurisprudence, Jonathan Lahn
The Uses Of History In The Supreme Court's Takings Clause Jurisprudence, Jonathan Lahn
Chicago-Kent Law Review
In a series of seminal cases interpreting the Fifth Amendment's Takings Clause, the United States Supreme Court has used arguments that can be called "historical" to justify its holdings and negotiate the relationship between the static language of the Constitution and the dynamic realities of American life. While historical arguments have been a recurring theme in Takings Clause jurisprudence over the past eighty years, the way in which they are used has shifted. While historical accounts of changes in American society over time once served to justify new forms of governmental intervention in the realm of private property, a new …