Law Commons^™

Short-Circuiting Contract Law: The Federal Circuit's Contract Law Jurisprudence And Intellectual Property Federalism, Shubha Ghosh

Shubha Ghosh

The Federal Circuit was established in 1982 as an appellate court with limited jurisdiction over patent claims. However, the Federal Circuit has used this limited jurisdiction to expand its reach into contract law, developing a federal common law of contract. Given the growing importance of patent litigation in the past three decades, this creation of an independent body of contract law creates uncertainty in transactions involving patents. This troublesome development received attention in Stanford v Roche, a 2011 Supreme Court decision upholding the Federal Circuit's invalidation of a patent assignment to Stanford University. This Article documents the development of …

Commercialization Awards, Camilla A. Hrdy

Camilla A Hrdy

Some patent law scholars have proposed introducing new forms of patents to promote commercialization of inventions that would not otherwise be commercialized, or at least not within a reasonable period of time. In this Article I suggest that so-called commercialization patents are unnecessary because the United States already has a system for promoting commercialization of inventions that does not require creating unprecedented exclusive rights: direct government financing. Drawing on statutes and administrative codes, I provide an in-depth account of the major commercialization financing options for inventors and entrepreneurs at both the federal and state levels. I then compare these incentives, …

Standing” On Formality: Hollingsworth V. Perry And The Efficacy Of Direct Democracy In The United States, Matthew A. Melone

Matthew A. Melone

No abstract provided.

Federal And State Authority For Network Neutrality And Broadband Regulation, Tejas N. Narechania

Tejas N. Narechania

For the second time in less than four years, the D.C. Circuit has rebuffed the Federal Communications Commission’s attempt at imposing network neutrality rules on internet traffic. But in so doing, the D.C. Circuit affirmed the FCC’s theory of jurisdiction based on section 706 of the Telecommunications Act of 1996. This ruling has the significant effect of transforming a questionable source of authority into what may become the Commission’s most significant font of regulatory power.

Surprisingly, section 706 seems to give the Commission the power to implement a slightly revised set of network neutrality rules. By narrowing the scope of …

Campaign Finance, Federalism, And The Case Of The Long-Armed Donor, Todd E. Pettys

Todd E. Pettys

In its ruling last Term in McCutcheon v. FEC, the Court struck down federal campaign-finance laws that limited the aggregate amount of money that Shaun McCutcheon and other would-be campaign donors could give to a variety of political committees and to individuals running for Congress in states and districts other than their own. Chief Justice Roberts began his opinion for the plurality by declaring that "[t]here is no right more basic in our democracy than the right to participate in electing our political leaders." Retired justice John Paul Stevens has argued that the Court's ruling in McCutcheon is "a grossly …

Federalism And Municipal Innovation: Lessons From The Fight Against Vacant Properties, Benton C. Martin

Benton C. Martin

Cities possess a far greater ability to be trailblazers on a national scale than local officials may imagine. Realizing this, city advocates continue to call for renewed recognition by state and federal officials of the benefits of creative local problem-solving. The goal is admirable but warrants caution. The key to successful local initiatives lies not in woolgathering about cooperation with other levels of government but in identifying potential conflicts and using hard work and political savvy to build constituencies and head off objections. To demonstrate that point, this Article examines the legal status of local governments and recent efforts to …

The Spending Power And Environmental Law After Sebelius, Erin Ryan

Erin Ryan

This article analyzes the Supreme Court’s new spending power doctrine and its impact on state-federal bargaining in programs of cooperative federalism, using the laboratory of environmental law. (It expands on the legal analysis in an Issue Brief originally published by the American Constitution Society on Oct. 1, 2013.) After the Supreme Court ruled in the highly charged Affordable Care Act case of 2012, National Federation of Independent Business vs. Sebelius, the political arena erupted in debate over the implications for the health reform initiative and, more generally, the reach of federal law. Analysts fixated on the decision’s dueling Commerce Clause …

Does Federal Spending 'Coerce' States? Evidence From State Budgets, Brian D. Galle

Brian D. Galle

According to a recent plurality of the U.S. Supreme Court, the danger that federal taxes will “crowd out” state revenues justifies aggressive judicial limits on the conditions attached to federal spending. Economic theory offers a number of reasons to believe the opposite: federal revenue increases may also float state boats. To test these competing claims, I examine for the first time the relationship between total federal revenues and state revenues. I find that, contra the NFIB plurality, increases in federal revenue -- controlling, of course, for economic performance and other factors -- are associated with a large and statistically significant …