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Full-Text Articles in Law

Exclusion Confusion? A Defense Of The Federal Circuit's Specific Exclusion Jurisprudence, Peter Curtis Magic Nov 2007

Exclusion Confusion? A Defense Of The Federal Circuit's Specific Exclusion Jurisprudence, Peter Curtis Magic

Michigan Law Review

Specific exclusion has become a controversial limitation on the doctrine of equivalents, which is itself an essential and controversial area of patent law. The doctrine of equivalents allows a patentee to successfully claim infringement against devices that are outside of the literal reach of the language used by the patentee in her patent to describe what she claims as her invention. The Supreme Court has prescribed some of the outer limits of the doctrine of equivalents and articulated the underlying policy concerns that inform its analysis-noting that courts should balance protection of the patentee's intellectual property with the public ...


Reading Too Much Into Reeder-Simco?, Jeremy M. Suhr Oct 2007

Reading Too Much Into Reeder-Simco?, Jeremy M. Suhr

Michigan Law Review

This Note argues that a careful analysis of the Supreme Court's opinion in Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc. demonstrates that, despite the expansive dicta appearing in part IV of that opinion, the Court did not intend to reshape the course of its Robinson-Patman Act jurisprudence in any significant way. The Court's opinion operated well within the confines of established Robinson-Patman Act doctrine, even if its searching review of the evidence presented at trial represented a rare foray into the arena of factual error correction. After Reeder-Simco, however, many commentators emphasized the dicta in part ...


From "Navigable Waters" To "Constitutional Waters": The Future Of Federal Wetlands Regulation, Mark Squillace Jul 2007

From "Navigable Waters" To "Constitutional Waters": The Future Of Federal Wetlands Regulation, Mark Squillace

University of Michigan Journal of Law Reform

Wetlands regulation in the United States has a tumultuous history. The early European settlers viewed wetlands as obstacles to development, and they drained and filled wetlands and swamps at an astounding rate, often with government support, straight through the middle of the twentieth century. As evidence of the ecological significance of wetlands emerged over the last several decades, programs to protect and restore wetlands became prominent. Most notable among these is the permitting program under section 404 of the Clean Water Act. That provision prohibits dredging or filling of "navigable waters, " defined by law to mean "waters of the United ...


Furman'S Mythical Mandate, Scott W. Howe May 2007

Furman'S Mythical Mandate, Scott W. Howe

University of Michigan Journal of Law Reform

This Article argues for the rescue and reform of Supreme Court doctrine regulating capital sentencing trials under the Eighth Amendment. Many legal commentators, both liberal and conservative, including several members of the Supreme Court, have concluded that the Court's regulation of capital sentencing trials is a disaster. The repeated criticisms rest on a commonly accepted view about a principal goal of capital sentencing regulation. The prevailing account, fueled by the rhetoric of the Justices, stems from the notion that Furman v. Georgia, 408 U.S. 208 (1972), revealed a mandate of consistency in the use of the death penalty ...


One Stop, No Stop, Two Stop, Terry Stop: Reasonable Suspicion And Pseudoephedrine Purchases By Suspected Methamphetamine Manufacturers, Andrew C. Goetz May 2007

One Stop, No Stop, Two Stop, Terry Stop: Reasonable Suspicion And Pseudoephedrine Purchases By Suspected Methamphetamine Manufacturers, Andrew C. Goetz

Michigan Law Review

This Note attempts to inject some clarity into courts' reasonable suspicion calculus for cold medicine purchases. It argues that the key factor in analyzing such purchases is whether the purchaser or purchasers appear to be circumventing pseudoephedrine purchasing restrictions in order to obtain inordinately large quantities of pseudoephedrine. Part I provides a general background on the domestic manufacture of methamphetamine in small, clandestine laboratories. Part II then examines the interplay between outward innocence and reasonable suspicion under the Supreme Court's Fourth Amendment jurisprudence. Finally, Part III establishes a framework for identifying purchasing strategies that methamphetamine manufacturers commonly use to ...


Looking Backward: Richard Epstein Ponders The "Progressive" Peril, Michael Allan Wolf Apr 2007

Looking Backward: Richard Epstein Ponders The "Progressive" Peril, Michael Allan Wolf

Michigan Law Review

In the 1888 novel Looking Backward, Edward Bellamy dreamed up a twentieth century America that was a socialist utopia, a vision invoked four years later by the conservative Justice David J. Brewer as a warning against government regulation. In How Progressives Rewrote the Constitution, Richard Epstein, looking back at the twentieth century through an interpretive lens much more similar to Brewer's than Bellamy's, sees and bemoans the growth of a dominant big government of which the novelist could only dream. Epstein pulls no punches in his attack on those he deems responsible for the shift in the American ...


On Dworkin And Borkin, Tom Lininger Apr 2007

On Dworkin And Borkin, Tom Lininger

Michigan Law Review

This Essay will use Dworkin's and Davis's scholarship as a jumping-off point for a discussion of the Supreme Court nomination process. I argue that while Dworkin's and Davis's books, when read together, expose a significant problem with the current nomination process, a possible solution to this predicament may lie in a change to the judicial code of ethics and the procedural rules for confirmation of judges. My analysis will proceed in four steps. Part I will address Dworkin's arguments. Part II will evaluate the analysis and evidence in Davis's book. Part III will consider ...


Constitutional Etiquette And The Fate Of "Supreme Court Tv", Bruce Peabody Jan 2007

Constitutional Etiquette And The Fate Of "Supreme Court Tv", Bruce Peabody

Michigan Law Review First Impressions

In traditional media outlets, on the Internet, and throughout the halls of Congress, debate about whether the Supreme Court should be required to televise its public proceedings is becoming more audible and focused. To date, these discussions have included such topics as the potential effects of broadcasting the Court, the constitutionality of Senator Arlen Specter’s current congressional initiative, S. 344, and how the public would use or abuse televised sessions of our highest tribunal.


Ksr V. Teleflex: Predictable Reform Of Patent Substance And Procedure In The Judiciary, John F. Duffy Jan 2007

Ksr V. Teleflex: Predictable Reform Of Patent Substance And Procedure In The Judiciary, John F. Duffy

Michigan Law Review First Impressions

Though KSR International Co. v. Teleflex, Inc. is now widely acknowl-edged in the bar and the academy to be the most significant patent case in at least a quarter century, that view dramatically underestimates the impor-tance of the decision. The KSR decision has immense significance not merely because it rejected the standard of patentability that had been applied in the lower courts for decades, but also because it highlights many separate trends that are reshaping the patent system. This Commentary will touch upon four such trends that are clearly evi-dent in KSR. First, the case was a predictable continuation of ...


Patent Injunctions And The Problem Of Uniformity Cost, Michael W. Carroll Jan 2007

Patent Injunctions And The Problem Of Uniformity Cost, Michael W. Carroll

Michigan Telecommunications & Technology Law Review

In eBay v. MercExchange, the Supreme Court correctly rejected the Federal Circuit's general rule requiring that a permanent injunction follow from a finding that a patent is valid and infringed. Recognizing that one size does not fit all in patent law, the Court returned traditional equitable discretion to the district courts. With this discretion, district courts can now deploy remedies for patent infringement that are sensitive to relevant differences among industries, technologies, and entities. This Essay sets the Court's rejection of a uniform remedial regime in a larger context concerning the role of uniformity in patent law. It ...


Granting Certiorari To Video Recording But Not To Televising, Scott C. Wilcox Jan 2007

Granting Certiorari To Video Recording But Not To Televising, Scott C. Wilcox

Michigan Law Review First Impressions

Cameras are an understandable yet inapt target for Supreme Court Justices apprehensive about televising the high Court’s proceedings. Notwithstanding Justice Souter’s declaration to a congressional subcommittee in 1996 that cameras will have to roll over his dead body to enter the Court, the Justices’ public statements suggest that their objections are to televising—not to cameras. In fact, welcoming cameras to video record Court proceedings for archival purposes will serve the Justices’ interests well. Video recording can forestall legislation recently introduced in both houses of Congress that would require the Court to televise its proceedings. The Court’s ...


Same-Sex Loving:Subverting White Supremacy Through Same-Sex Marriage, Adele M. Morrison Jan 2007

Same-Sex Loving:Subverting White Supremacy Through Same-Sex Marriage, Adele M. Morrison

Michigan Journal of Race and Law

This Article marks the 40th anniversary of Loving v. Virginia- the landmark decision that responded to the question of the constitutionality of anti-miscegenation laws by firmly stating that the fundamental right to marry could not be restricted by race-by taking up the issue of the case's applicability in the context of same-sex marriage. The invocation of Loving has generally been in a manner that invites comparisons between interracial and same-sex marriage. Pro same-sex marriage arguments that utilize this comparison-which has come to be known as the "Loving Analogy"-- include the decision's freedom of choice and antidiscrimination elements, but ...


The Right Legislation For The Wrong Reasons, Tony Mauro Jan 2007

The Right Legislation For The Wrong Reasons, Tony Mauro

Michigan Law Review First Impressions

Senator Arlen Specter took a bold and long-overdue step on January 22, 2007, when he introduced legislation that would require the Supreme Court to allow television coverage of its proceedings. But instead of making his case with a straightforward appeal to the public’s right to know, Specter has introduced arguments in favor of his bill that seem destined to antagonize the Court, drive it into the shadows, or both. Chances of passage might improve if Specter adjusts his tactics.


Will It Make My Job Easier, Or What's In It For Me?, Kenneth N. Flaxman Jan 2007

Will It Make My Job Easier, Or What's In It For Me?, Kenneth N. Flaxman

Michigan Law Review First Impressions

Putting aside philosophical questions about public access to government proceedings—what we now call “transparency”—and without regard to whether televising Supreme Court arguments is a logical extension of the common law’s “absolute personal right of reasonable access to court files” as described in 1977 by the Seventh Circuit in Rush v. United States, my real concern about whether Supreme Court arguments should be televised is somewhat narcissistic. Will it make my job—as a plaintiff’s civil rights lawyer who dabbles in criminal defense and post-conviction matters and who has had five adventures as “arguing counsel” in the ...


Ksr's Effect On Patent Law, Stephen G. Kunin, Andrew K. Beverina Jan 2007

Ksr's Effect On Patent Law, Stephen G. Kunin, Andrew K. Beverina

Michigan Law Review First Impressions

The Supreme Court in KSR International Co. v. Teleflex Inc. clarified its 1966 decision in Graham v. John Deere, avoiding the sea change to a synergy- based standard that many had expected—and perhaps feared. KSR has raised the bar set in Graham for seeking patent protection—by providing a flexible test for obviousness—while simultaneously making it easier for accused infringers to defend themselves. Moreover, KSR will change the strategies of both patent prosecutors and litigators. Before KSR, the Supreme Court’s last major decision on nonobviousness under 35 U.S.C. § 103 was Graham, in which the Court ...


Making Sense Of Ksr And Other Recent Patent Cases, Harold C. Wegner Jan 2007

Making Sense Of Ksr And Other Recent Patent Cases, Harold C. Wegner

Michigan Law Review First Impressions

The recent Supreme Court review of KSR International Inc. v. Teleflex Inc., eBay Inc. v. MercExchange LLC, and Microsoft Corp. v. AT&T Corp. manifests the Court’s current interest in the patent jurisprudence of the Fed-eral Circuit. Now it is evident that the Court has a level of concern sufficient to guarantee the possibility of grant of certiorari—whereas formerly a case could rarely generate sufficient interest for review. For long-range impor-tance in patent law, KSR stands alone as the single most important Supreme Court patent decision on the bread and butter standard of “obviousness” in the more than ...


Gee Whiz, The Sky Is Falling!, Boyce F. Martin Jr. Jan 2007

Gee Whiz, The Sky Is Falling!, Boyce F. Martin Jr.

Michigan Law Review First Impressions

I am reminded of Chicken Little’s famous mantra as I listen to some Supreme Court Justices’ reactions to the prospect of televising oral arguments. Their fears—such as Justice Kennedy’s warning that allowing cameras in the courtroom may change the Court’s dynamics—are, in my opinion, overblown. And some comments, most notably Justice Souter’s famous exclamation in a 1996 House subcommittee hearing that “the day you see a camera come into our courtroom, it’s going to roll over my dead body,” make it sound as if the Justices have forgotten that our nation’s court ...


C-Span's Long And Winding Road To A Still Un-Televised Supreme Court, Bruce D. Collins Jan 2007

C-Span's Long And Winding Road To A Still Un-Televised Supreme Court, Bruce D. Collins

Michigan Law Review First Impressions

In 2005 when Senator Arlen Specter (R-PA) first proposed legislation requiring the Supreme Court of the United States to televise its oral arguments, he resuscitated a twenty-plus-years long effort by several news organizations to achieve the same goal. For at least that long, C-SPAN has been ready to provide the same kind of video coverage of the federal judiciary as it has been providing of the Congress and the president. If cameras are ever permitted in the high Court’s chamber, C-SPAN will televise every minute of every oral argument, frequently on a live basis, and will do so in ...


(Still) Constitutional School De-Segregation Strategies: Teaching Racial Literacy To Secondary School Students And Preferencing Racially-Literate Applicants To Higher Education, Michael J. Kaufman Jan 2007

(Still) Constitutional School De-Segregation Strategies: Teaching Racial Literacy To Secondary School Students And Preferencing Racially-Literate Applicants To Higher Education, Michael J. Kaufman

Michigan Journal of Race and Law

In Parents Involved in Community Schools v. Seattle School Dist. No. 1, the Supreme Court declared that it will continue to scrutinize race-conscious educational decisions to insure that they are narrowly-tailored to serve a compelling governmental interest. This Article develops a strategy for enhancing racial diversity at all levels of American public education that can survive that rigorous constitutional scrutiny. The Article shows that school districts may prove that assigning a meaningful number of racially diverse students to their secondary schools is narrowly-tailored to achieve their compelling educational interest in teaching racial literacy. The constitutionality of this race-conscious educational strategy ...


Crawford, Davis, And Way Beyond, Richard D. Friedman Jan 2007

Crawford, Davis, And Way Beyond, Richard D. Friedman

Articles

Until 1965, the Confrontation Clause of the Sixth Amendment to the United States Constitution hardly mattered. It was not applicable against the states, and therefore had no role whatsoever in the vast majority of prosecutions. Moreover, if a federal court was inclined to exclude evidence of an out-of-court statement, it made little practical difference whether the court termed the statement hearsay or held that the evidence did not comply with the Confrontation Clause.


Holmes V. South Carolina Upholds Trial By Jury, Samuel R. Gross Jan 2007

Holmes V. South Carolina Upholds Trial By Jury, Samuel R. Gross

Articles

Bobby Lee Holmes was convicted of a brutal rape-murder and sentenced to death. The only evidence that connected him to the crime was forensic: a palm print, and blood and fiber evidence. (Biological samples taken from the victim for two rape kits were compromised and yielded no identifiable evidence.) Holmes claimed that the state's forensic evidence was planted and mishandled, and that the rape and murder were committed by another man, Jimmy McCaw White. At a pretrial hearing three witnesses testified that they saw White near the victim's house at about the time of the crime, and four ...


Reviving The Right To Vote, Ellen D. Katz Jan 2007

Reviving The Right To Vote, Ellen D. Katz

Articles

Losers in partisan districting battles have long challenged the resulting districting plans under seemingly unrelated legal doctrines. They have filed lawsuits alleging malapportionment, racial gerrymandering, and racial vote dilution, and they periodically prevail. Many election law scholars worry about these lawsuits, claiming that they needlessly "racialize" fundamentally political disputes, distort important legal doctrines designed for other purposes, and provide an inadequate remedy for a fundamentally distinct electoral problem. I am not convinced. This Article argues that the application of distinct doctrines to invalidate or diminish what are indisputably partisan gerrymanders is not necessarily problematic, and that the practice may well ...


Congressional Power To Extend Preclearance: A Response To Professor Karlan, Ellen D. Katz Jan 2007

Congressional Power To Extend Preclearance: A Response To Professor Karlan, Ellen D. Katz

Articles

Is the core provision of the Voting Rights Act unconstitutional? Many people now think that the Act's preclearance requirement is invalid, but Professor Karlan is not among them. In part, that is because she is not convinced the problems that originally motivated Congress to impose preclearance have been fully remedied. Professor Karlan points out the many ways section 5 of the Voting Rights Act (VRA) shapes behavior in the jurisdictions subject to the statute--not just by blocking discriminatory electoral changes, but also by influencing less transparent conduct by various political actors operating in these regions. Do not be so ...


The Supreme Court And The Federal Circuit: Visitation And Custody Of Patent Law, Rebecca S. Eisenberg Jan 2007

The Supreme Court And The Federal Circuit: Visitation And Custody Of Patent Law, Rebecca S. Eisenberg

Articles

The U.S. Supreme Court’s relationship to patent law sometimes seems like that of a non-custodial parent who spends an occasional weekend with the kids. The custodial parent is, of course, the U.S. Court of Appeals for the Federal Circuit. The Federal Courts Improvement Act of 1982 consolidated intermediate appellate jurisdiction over patent law cases in this single court, which hears appeals from the U.S. Patent and Trademark Office (“PTO”), the U.S. District Courts, the U.S. Court of Federal Claims, and the U.S. In-ternational Trade Commission. Day to day it is the Federal Circuit ...


Federalism And The Commerce Clause: A Comparative Perspective, Reuven S. Avi-Yonah Jan 2007

Federalism And The Commerce Clause: A Comparative Perspective, Reuven S. Avi-Yonah

Articles

The U.S. Supreme Court has on numerous occasions addressed the constitutionality of state taxes under the U.S. Constitution (most often under the Commerce Clause, but sometimes under the Equal Protection and Due Process Clauses). In general, the Supreme Court has granted wide leeway to the states to adopt any tax system they wish, only striking down the most egregious cases of discrimination against out-of-state residents. Thus, for example, the Court has generally refused to intervene against state tax competition to attract business into the state. It has twice upheld a method of calculating how much income of a ...


Forfeiture Of The Confrontation Right After Crawford And Davis, Richard D. Friedman Jan 2007

Forfeiture Of The Confrontation Right After Crawford And Davis, Richard D. Friedman

Articles

So my topic this morning is on forfeiture of the confrontation right, which I think plays a central role in confrontation doctrine. And to try to present that, let me state the entirety of confrontation doctrine as briefly as I can. This is, at least, what I think the doctrine is and what it can be: A testimonial statement should not be admissible against an accused to prove the truth of what it asserts unless the accused either has had or will have an opportunity to confront the witness-which should occur at trial unless the witness is then unavailable-or has ...


Crawford And Davis: A Personal Reflection, Richard D. Friedman Jan 2007

Crawford And Davis: A Personal Reflection, Richard D. Friedman

Articles

I have to say that when I stood up to argue Hammon I felt the wind at my back. I was basically a lawyer with an easy case, and there wasn't anything particularly unpredictable at the argument of Hammon. Now it got a little bit interesting, as I will explain later, because to a certain extent I was trying to argue the other case as well. But Hammon itself was sort of ordinary, normal law.


The Puzzle Of Complete Preemption, Gil Seinfeld Jan 2007

The Puzzle Of Complete Preemption, Gil Seinfeld

Articles

Part I introduces the central themes in the law of federal question jurisdiction. It describes the prevailing interpretations of the constitutional and statutory texts governing the federal courts' jurisdiction to adjudicate disputes involving questions of federal law, and it explores the reasons for the establishment of such jurisdiction. This Part also introduces the well-pleaded complaint rule and examines the reasons for its adoption by the Supreme Court. Part II provides a detailed account of complete preemption doctrine, under which parties are permitted to usher state-law claims into the federal courts despite the apparent absence of any federal question on the ...


On The Fortieth Anniversary Of The Miranda Case: Why We Needed It, How We Got It--And What Happened To It, Yale Kamisar Jan 2007

On The Fortieth Anniversary Of The Miranda Case: Why We Needed It, How We Got It--And What Happened To It, Yale Kamisar

Articles

Last year (the year I gave the talk on which this article is based) marked the fortieth anniversary of Miranda v. Arizona,' one of the most praised, most maligned-and probably one of the most misunderstood-Supreme Court cases in American history. It is difficult, if not impossible, to evaluate Miranda without looking back at the test for the admissibility of confessions that preceded it.


Televising The Court: A Category Mistake (Symposium On Televising The Supreme Court), Christina B. Whitman Jan 2007

Televising The Court: A Category Mistake (Symposium On Televising The Supreme Court), Christina B. Whitman

Articles

The idea of televising Supreme Court oral arguments is undeniably appealing. Consequently, it is not surprising that reporters and politicians have been pressuring the Court to take this step. The other branches have been media-friendly for years, and Supreme Court arguments are already open to the public. Why should those of us who neither reside in Washington, D.C. nor have the time to attend Court proceedings be asked to depend on reporters for descriptions of the event? Even lower courts permit cameras. There is an understandable hunger for anything that will help us understand these nine individuals who have ...