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Bush V. Boumediene: The Court Is Back, Jay Dratler
Bush V. Boumediene: The Court Is Back, Jay Dratler
Jay Dratler
This short article is a follow-up to a piece I wrote two years ago on Hamdan v. Rumsfeld, SSRN No. 913822. While applauding the result in Hamdan, I critiqued the Supreme Court for missing a “teachable moment” and obscuring the great issues at stake in prolixity and mind-numbing technical detail.In this article, I applaud the Boumediene v. Bush Court not only for its result—that the Constitution’s Suspension Clause can require habeas corpus for aliens held abroad under certain circumstances—but for its reasoning and style as well. This time, the majority of five did not miss its “teachable moment,” but placed …
Ebay's Practical Effect: Two Differing Visions, Jay Dratler
Ebay's Practical Effect: Two Differing Visions, Jay Dratler
Jay Dratler
This short paper examines the likely effect of the Court's three opinions on the actual practice of intellectual property cases in their remedial phase. The first part briefly discusses the unanimous opinion and its likely economic effect in increasing the already daunting complexity-and therefore the already considerable cost-of intellectual property litigation. The second part examines the first concurring opinion and the effect of its implicit suggestion that nothing much has really changed. The third part examines the possible practical effect of the second concurring opinion. The conclusion then offers a few general observations on where remedial practice in patent cases …