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Vanderbilt University Law School

2016

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Articles 1 - 30 of 146

Full-Text Articles in Law

Policing As Administration, Christopher Slobogin Dec 2016

Policing As Administration, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Police agencies should be governed by the same administrative principles that govern other agencies. This simple precept would have significant implications for regulation of police work, in particular the type of suspicionless, group searches and seizures that have been the subject of the Supreme Court's special needs jurisprudence (practices that this Article calls "panvasive"). Under administrative law principles, when police agencies create statute-like policies that are aimed at largely innocent categories of actors-as they do when administering roadblocks, inspection regimes, drug testing programs, DNA sampling programs, and data collection-they should have to engage in notice-and-comment rulemaking or a similar democratically …


Symposium: The Disclosure Function Of The Patent System, Sean B. Seymore Nov 2016

Symposium: The Disclosure Function Of The Patent System, Sean B. Seymore

Vanderbilt Law Review

A fundamental goal of the patent system is to encourage the dissemination of technical knowledge.' The patent system achieves this goal through a quid pro quo-in exchange for the right to exclude, the inventor must fully disclose the technical details of the invention. As soon as a patent document publishes, there is hope that the public will use the technical details disclosed therein to improve upon the invention, to design around it, or to engage in other innovative activities. So while the patentee maintains the right to exclude others from practicing the invention until the patent expires, the technical information …


Physicalism And Patent Theory, Christopher A. Cotropia Nov 2016

Physicalism And Patent Theory, Christopher A. Cotropia

Vanderbilt Law Review

United States patent law's view on the need for a physical embodiment of the invention, and the continued production and use of an embodiment, has varied over the last two centuries. In the early days, the requirement for 'physicalism" was high, with the inventor being required to actually reduce the invention to practice prior to patenting, and enforceability was tied to "working" the claimed invention. By the early 1900s, these requirements of physicalism disappeared. This changing view on physicalism speaks volumes as to which major patent theory the law emphasizes, with physicalism supporting the incentive to invent theory and the …


Legal Fictions And The Role Of Information In Patent Law, Craig A. Nard Nov 2016

Legal Fictions And The Role Of Information In Patent Law, Craig A. Nard

Vanderbilt Law Review

In his 1974 Nobel Prize Lecture, Freidrich Hayek admonished us, as he did throughout so much of his work, about the limitations of our knowledge and stressed what knowledge we do have should be used "not to shape the results as the craftsman shapes his handiwork, but rather to cultivate a growth by providing the appropriate environment." This analogy-what Hayek referred to as the "pretense of knowledge"-is germane to legal systems where the common law plays a prominent role. Patent law is such a field. Judicial stewardship of the patent space can be seen as an institutional advantage, one that …


Disclosing Designs, Jason Du Mont, Mark D. Janis Nov 2016

Disclosing Designs, Jason Du Mont, Mark D. Janis

Vanderbilt Law Review

The disclosure function figures prominently in many accounts of the utility patent system. But what of its role in the design patent system? Should it be dismissed as trivial? And if so, what are the practical consequences for design patent doctrine in view of the fact that the doctrines that implement the disclosure function in utility patent law also apply to design patents by statutory mandate? The disclosure theory posits that patent documents disclose technical information that serves as a quid pro quo for the patent grant. Even aside from controversies about whether the disclosure function is robust for utility …


Nontechnical Disclosure, J. Jonas Anderson Nov 2016

Nontechnical Disclosure, J. Jonas Anderson

Vanderbilt Law Review

One of the primary goals of the patent system is the broad dissemination of technical knowledge. Patent law forces inventors to disclose how their inventions work. Inventors seeking a patent are required to describe "the manner and process of making and using" the patented invention. Additionally, a patent must "enable any person skilled in the art.., to make and use" the invention. Despite this explicit statutory disclosure requirement, patent law could do better at ensuring that patents convey useful information to the public. Academics have vigorously debated about whether and to what degree the patent system performs its disclosure function. …


Patent Disclosures And Time, Timothy R. Holbrook Nov 2016

Patent Disclosures And Time, Timothy R. Holbrook

Vanderbilt Law Review

Patents by their very nature are pregnant with considerations of time. The exclusive rights they afford only last for a finite period- generally from issuance until twenty years from the filing date of the application. Moreover, since patents necessarily engage with the evolution of technology, patents reflect various "snap shots" in time that reflect the state of the art at a particular moment. Patent law must constantly wrestle with time. Many of these topics have been explored extensively in both judicial decisions and the literature. The most obvious example of considering the temporal aspect of patent law is ... obviousness. …


Patent Silences, Dan L. Burk Nov 2016

Patent Silences, Dan L. Burk

Vanderbilt Law Review

A great deal has been said in recent years about patent disclosure. But to say that there is a disclosure function in the patent system implies that there is non-disclosure functioning in the patent system as well. For some information to be disclosed in a patent, other information must go undisclosed; for some things to be included, other things must be excluded. In this article I review the surprising number of doctrines that allow and encourage patent applicants to remain silent about aspects of their inventions. I find that some silences in patents are inadvertent, while some are deliberate; some …


The Doctrinal Structure Of Patent Law's Enablement Requirement, Jason Rantanen Nov 2016

The Doctrinal Structure Of Patent Law's Enablement Requirement, Jason Rantanen

Vanderbilt Law Review

This Article examines the formal law of enablement, focusing on a perceived split in the enablement doctrine: whether disclosure of a single mode of an invention is necessarily sufficient to satisfy the requirement of enablement or whether the full scope of the claim must be enabled. In examining this split, this Article articulates the enablement inquiry in conceptual terms, identifying two elements of the courts' analyses that are implicit in every enablement determination: the nature of enablement disputes, as challenges and the articulation of a target or targets that must be enabled. , With this understanding in mind, the "full …


Dynamic Patent Disclosure, Jeanne C. Fromer Nov 2016

Dynamic Patent Disclosure, Jeanne C. Fromer

Vanderbilt Law Review

Those who tout the role of disclosure as a benefit of the patent system emphasize-as the Supreme Court has-that the information in patents "add[s] to the general store of knowledge [and is] of such importance to the public weal that the Federal Government is willing to pay the high price of ... exclusive use for its disclosure, which disclosure ... will stimulate ideas and the eventual development of further significant advances in the art." As I excavate in this Article, the current state of patent disclosure-which many think is poor and does not achieve its objective of stimulating innovation-is impoverished …


Photocopies, Patents, And Knowledge Transfer: "The Uneasy Case" Of Justice Breyer's Patentable Subject Matter Jurisprudence, Dmitry Karshtedt Nov 2016

Photocopies, Patents, And Knowledge Transfer: "The Uneasy Case" Of Justice Breyer's Patentable Subject Matter Jurisprudence, Dmitry Karshtedt

Vanderbilt Law Review

One aspect of Justice Stephen Breyer's discomfort with patents, as expressed in his opinion for the Supreme Court in Mayo v. Prometheus and his dissent from the order dismissing certiorari in LabCorp v. Metabolite, is strikingly similar to one of his critiques of copyright law in The Uneasy Case for Copyright, a well-known article he wrote as Professor Breyer more than forty-five years ago. In The Uneasy Case, Breyer argued that the burdens on duplication of technical articles imposed by copyright law restrict the flow of information and prevent scientists from enjoying spillover benefits of published research. His patent opinions …


Contextualizing Patent Disclosure, Colleen V. Chien Nov 2016

Contextualizing Patent Disclosure, Colleen V. Chien

Vanderbilt Law Review

One of the main justifications for a patent system is that patents disclose useful technical information that others can learn from. However, patents are not performing this function well. The average patent is written in legalese, uses vague language, and is hard to connect to commercial activity. Legal scholars have responded with calls to improve the patent document through better writing, more examples, and better enforcement of patent doctrines. The courts have sought to ensure that patent specifications are robust and justify the grant of a monopoly. This follows from the Supreme Court's characterization of technical teachings within a patent …


The Structural Implications Of Inventors' Disclosure Obligations, Kevin E. Collins Nov 2016

The Structural Implications Of Inventors' Disclosure Obligations, Kevin E. Collins

Vanderbilt Law Review

Disclosure theory posits that inventors must disclose knowledge about their inventions and make that knowledge freely available for certain uses during the term of a patent as part of the price that they pay for their exclusive patent rights. This Article identifies an overlooked implication of this disclosure obligation. The availability of disclosed knowledge itself for free public use during the term of a patent means that there must be limits on inventors' rights: inventors must not be allowed to transform the use of disclosed knowledge itself into infringement through strategic claiming. If they could, inventors would, oddly, be able …


Pierson, Peer Review, And Patent Law, Lisa L. Ouellette Nov 2016

Pierson, Peer Review, And Patent Law, Lisa L. Ouellette

Vanderbilt Law Review

When has a researcher done enough to merit a patent? Should the patent belong to the researcher who first suggests an invention or the one who brings it to fruition? The canonical dispute over a fox in Pierson v. Post is used to illustrate the competing policy considerations in deciding when to award a new property right, including providing efficient incentives, setting forth clear rules to guide future behavior, and respecting natural rights. In patent law, all of these considerations suggest that in practice, many patents are awarded too early, before an applicant has demonstrated that the invention is likely …


Reforming Regulation, Ganesh Sitaraman Nov 2016

Reforming Regulation, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

The debate over federal regulation has long been at the center of political contests. But surprisingly, the degree of agreement about regulation is considerable. No serious commentator denies that regulation is essential to ensuring well-functioning markets; protecting the health and safety of workers and families; and preventing fraud, corruption, and theft. Smart regulation is what makes cars safe to drive, lakes and rivers safe to swim in, and food safe to eat. At the same time, every serious commentator recognizes that poorly designed regulations can be detrimental; they can stack the deck in favor of special interests, prevent competition, and …


Tribute: Elizabeth Chitwood, Jessica L. Haushalter Oct 2016

Tribute: Elizabeth Chitwood, Jessica L. Haushalter

Vanderbilt Law Review

Elizabeth "Beth" Chitwood was one of the newest members of the Vanderbilt Law Review. Our community mourns her unexpected loss and is grateful for the time we were able to share with her. The following Tribute briefly highlights Beth's contributions to the Vanderbilt Law community and the Vanderbilt Law Review.


Supreme Court Repeaters, Jason Iuliano, Ya Sheng Lin Oct 2016

Supreme Court Repeaters, Jason Iuliano, Ya Sheng Lin

Vanderbilt Law Review

A case that receives cert once is special. A case that receives cert twice is truly exceptional. This Article is the first to examine the phenomenon of "Supreme Court Repeaters." Although Repeaters may seem like mere curiosities, they are actually a valuable part of the Supreme Court's docket. Our analysis reveals that the Justices use Repeaters in three ways: (1) to set up important substantive questions that could not be addressed on the first pass, (2) to supervise lower courts, and (3) to address different substantive issues that arise at distinct points in litigation. In this Article, we investigate Supreme …


The Failed Superiority Experiment, Christine P. Bartholomew Oct 2016

The Failed Superiority Experiment, Christine P. Bartholomew

Vanderbilt Law Review

Federal law requires a class action be "supcrior to alternative methods for fairly and efficiently adjudicating the controversy." This superiority requirement has gone unstudied, despite existing for half a century. Thia Article undertakes a comprehensive review of the superiority case law. It reveals a jurisprudence riddled with inconsistency as courts adopt diametrically opposed interpretations of the requirement. Originally crafted to encourage predictable, consistent class action decisions, superiority has mutated over the years into a dangerous wild card-subjectively used to stymie aggregate litigation. The solution is not adding a new requirement to the already onerous rules for class certification. Instead, judges …


I See Dead People: Examining The Admissibility Of Living-Victim Photographs In Murder Trials, Susanna Rychlak Oct 2016

I See Dead People: Examining The Admissibility Of Living-Victim Photographs In Murder Trials, Susanna Rychlak

Vanderbilt Law Review

In the summer of 2015, the Tennessee legislature debated and passed the "Victim Life Photo Act," which went into effect on July 1, 2015. This law states: "In a prosecution for any criminal homicide, an appropriate photograph of the victim while alive shall be admissible evidence when offered by the district attorney general to show the general appearance and condition of the victim while alive." Victims' rights groups lobbied for this and similar laws throughout the country, which were then enacted by state legislatures. Though these laws amended rules of evidence, the considerations under which they were passed were largely …


Normalizing "Erie", Suzanna Sherry Oct 2016

Normalizing "Erie", Suzanna Sherry

Vanderbilt Law Review

This Article argues that the Erie doctrine should be normalized by bringing it into line with ordinary doctrines of federalism. Under ordinary federalism doctrines-such as the dormant commerce clause, implied preemption, federal preclusion law, and certain special "enclaves" of federal common law courts will displace state law to protect federal interests even when neither Congress nor the Constitution clearly articulates those interests. But under the Eric doctrine, the Supreme Court has mandated exactly the opposite approach: state law trumps federal interests unless those interests have been legislatively codified. This striking anomaly has not been noticed, in part because the voluminous …


The Customer Is Not Always Right: Balancing Worker And Customer Welfare In Antitrust Law, Clayton J. Masterman Oct 2016

The Customer Is Not Always Right: Balancing Worker And Customer Welfare In Antitrust Law, Clayton J. Masterman

Vanderbilt Law Review

This Note analyzes how courts' leniency affects a particular category of anticompetitive buyer conduct: agreements between employers that restrict competition in labor markets. If, as courts and commentators generally agree, the goal of antitrust law is to promote the welfare of consumers, how should courts balance the welfare of workers and customers under antitrust analysis? Arguably, worker welfare should be included in consumer welfare. If so, anticompetitive agreements between employers benefit one subset of consumers (customers), while hurting another subset (workers). The persistent procustomer and antiworker effect of such complicates a court's choice to find conduct per se unreasonable or …


Agencies' Obligation To Interpret The Statute, Aaron Saiger Oct 2016

Agencies' Obligation To Interpret The Statute, Aaron Saiger

Vanderbilt Law Review

Conventionally, when a statute delegates authority to an agency, courts defer to agency interpretations of that statute. Most agencies and scholars view such deference as a grant of permission to the agency to adopt any reasonable interpretation. That is wrong, jurisprudentially and ethically. An agency that commands deference bears a duty to adopt what it believes to be the best interpretation of the relevant statute. Deference assigns to the agency, rather than to a court, power authoritatively to declare what the law is. That power carries with it a duty to give the statute the best reading the agency can. …


Preambles As Guidance, Kevin M. Stack Sep 2016

Preambles As Guidance, Kevin M. Stack

Vanderbilt Law School Faculty Publications

Debates over administrative agencies’ reliance on guidance documents have largely neglected the most authoritative source of guidance about the meaning of agency regulations: their preambles. This Article examines and defends the guidance function of preambles. Preambles were designed not only to provide the agency’s official justification for the regulations they introduce, but also to offer guidance about the regulation’s meaning and application. Today, preambles include extensive guidance ranging from interpretive commentary to application examples. Based on the place of preamble guidance as part of the agency’s formal explanation of the regulation and the rigorous internal agency vetting which accompanies that …


The Failure Of Liability In Modern Markets, Yesha Yadav Jun 2016

The Failure Of Liability In Modern Markets, Yesha Yadav

Vanderbilt Law School Faculty Publications

In April 2015, the Department of Justice charged Navinder Sarao for his role in causing the Flash Crash-the near-1,000-point drop-and- rebound in the Dow Jones Index that roiled markets in May 2010. Sarao, a small-time British trader operating out of his parents' suburban basement, stood accused of putting together a string of illusory, fake orders that fooled markets enough to spark the largest single-day drop in the index's history. Commentators rightly contest whether a bit-player like Sarao could have unleashed a near-catastrophe on U.S. securities markets single-handedly. Yet, the complaint-and its causal account- point to a troubling dilemma facing scholars …


A Tribute To Justice Scalia: Why Bad Cases Make Bad Methodology, Brian T. Fitzpatrick May 2016

A Tribute To Justice Scalia: Why Bad Cases Make Bad Methodology, Brian T. Fitzpatrick

Vanderbilt Law Review

The Vanderbilt Law Review asked me to write a short memorial tribute to my old boss, Justice Antonin Scalia, and I am fortunate that Dean Chemerinsky's new book provides an apt occasion to do so. To be as blunt as the Justice would have been: he would have hated this book. Not because Dean Chemerinsky is not a gifted writer; he most surely is. But because the entire methodology of the book-a methodology I call "bad-cases" reasoning-was anathema to the Justice. The Justice may not have been right about everything, but he was right about this: bad-cases reasoning is bad …


Thinking About The Supreme Court's Successes And Failures, Erwin Chemerinsky May 2016

Thinking About The Supreme Court's Successes And Failures, Erwin Chemerinsky

Vanderbilt Law Review

The Supreme Court often has failed at its most important tasks and at the most important times. I set out this thesis at the beginning the book:

To be clear, I am not saying that the Supreme Court has failed at these crucial tasks every time. Making a case against the Supreme Court does not require taking such an extreme position. I also will talk about areas where the Court has succeeded in protecting minorities and in enforcing the limits of the Constitution. My claim is that the Court has often failed where and when it has been most needed. …


Letter To Supreme Court (Erwin Chemerinsky Is Mad. Why You Should Care), Barry Friedman May 2016

Letter To Supreme Court (Erwin Chemerinsky Is Mad. Why You Should Care), Barry Friedman

Vanderbilt Law Review

Whatever else you want to say about Erwin Chemerinsky, he's sincere. Chemerinsky is nothing if not sincere. As anyone who knows him will tell you so. And Chemerinsky is in pain. He informs us: "This book was far harder to write than I could have imagined." The question is why Chemerinsky is in pain? You'd think this would be the easiest thing in the world for him, going after a Court he sees as overly conservative. Like shooting fish in a barrel. The reason is because deep in his heart-despite his beefs with the outcomes of cases-Chemerinsky has always been …


Introduction: Is The Supreme Court Failing At Its Job, Or Are We Failing At Ours?, Suzanna Sherry May 2016

Introduction: Is The Supreme Court Failing At Its Job, Or Are We Failing At Ours?, Suzanna Sherry

Vanderbilt Law Review

It is a pleasure and a privilege to write an introduction to this Symposium celebrating Dean Erwin Chemerinsky's important new book, The Case Against the Supreme Court. Chemerinsky is one of the leading constitutional scholars of our time and a frequent advocate before the U.S. Supreme Court. If he thinks there is a case to be made against the Court, we should all take it very seriously indeed. Chemerinsky's thesis may be stated in a few sentences. The primary role of the Supreme Court, in his view, is to "protect the rights of minorities who cannot rely on the political …


Rethinking Judicial Minimalism: Abortion Politics, Party Polarization, And The Consequences Of Returning The Constitution To Elected Government, Neal Devins May 2016

Rethinking Judicial Minimalism: Abortion Politics, Party Polarization, And The Consequences Of Returning The Constitution To Elected Government, Neal Devins

Vanderbilt Law Review

This Article will argue that now is the time for the Court to decisively intervene in the abortion controversy by issuing a maximalist Roe-like decision; today's politics do not support an indeterminate standard like Casey's undue burden test. In other words, assuming that there is a constitutional right to abortion, today's Court should assume the heroic role Erwin Chemerinsky embraces in The Case Against the Supreme Court and other writings; specifically, the Court should "protect the rights of minorities who cannot rely on the political process." For Chemerinsky, protecting the rights of minorities is the "primary reason for having a …


Three Supreme Court "Failures" And A Story Of Supreme Court Success, Corinna B. Lain May 2016

Three Supreme Court "Failures" And A Story Of Supreme Court Success, Corinna B. Lain

Vanderbilt Law Review

The Supreme Court is not the institution that I once revered," writes Erwin Chemerinsky in The Case Against the Supreme Court-a provocative, important work that also happens to be a great read. Chemerinsky's claim is that the Supreme Court ought to be protecting vulnerable minorities from repressive majorities, but it has not done so. "The Court has frequently failed, throughout American history, at its most important tasks, at its most important moments," he argues.' This is Chemerinsky's case against the Supreme Court, and it is a sweeping indictment. Of the cases Chemerinsky cites to prove his point, three stand out …