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Update On Patent-Related Cases In Computers And Electronics, Karishma Jiva Cartwright, Timothy T. Hsieh, Saurabh Vishnubhakat

Articles

This paper provides an overview of patent cases relating to computer and electronics technology that were not taken up by the Supreme Court during the October 2022 term. As of this writing, the Supreme Court has not granted certiorari in any patent-related cases for its October 2021 Term. The Court has, however, called for the views of the Solictor General in four cases, indicating higher interest and raising the possibility that one or more of these cases may appear on the Court's merits docket for the October 2022 Term. Additionally, though the Court denied certiorari in Baxter v. Becton, Dickinson, …

Oral Argument In Moore V. Harper And The Perils Of Finding “Compromise” On The Independent State Legislature Theory, Katherine A. Shaw

Online Publications

The Supreme Court’s cert grant last June in Moore v. Harper was an ominous note on which to end an explosive term. The grant seemed to broadcast an openness to embracing what’s known as the “independent state legislature theory,” or ISLT. It is a once-fringe idea that the U.S. Constitution, and in particular Article I’s “elections clause,” grants to state legislatures alone, and withholds from other state entities (think: courts and constitutions), the power to regulate elections for federal office.

A New Supreme Court Case Threatens Another Body Blow To Our Democracy, Katherine A. Shaw, Leah Litman, Carolyn Shapiro

Online Publications

When the Supreme Court overruled Roe v. Wade, the justices in the majority insisted they were merely returning the issue of abortion to the democratic process. But a case the court has announced it will hear in its October term could make that democratic process a lot less democratic.

The Link Between Voting Rights And The Abortion Ruling, Katherine A. Shaw, Leah Litman, Melissa Murray

Online Publications

The Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization gives states the maximum amount of freedom to restrict abortion. The decision is so sweeping that, under its logic, states could ban abortion even in cases of rape or incest; they may even be able — as the dissent notes — to prohibit abortions in circumstances in which a doctor believes the procedure is necessary to preserve the life or health of the pregnant person.

We Clerked For Justices Scalia And Stevens. America Is Getting Heller Wrong., Katherine A. Shaw, John Bash

Online Publications

In the summer of 2008, the Supreme Court decided District of Columbia v. Heller, in which the court held for the first time that the Second Amendment protected an individual right to gun ownership. We were law clerks to Justice Antonin Scalia, who wrote the majority opinion, and Justice John Paul Stevens, who wrote the lead dissent.

“A Force Created”: The U.S. Chamber Of Commerce And The Politics Of Corporate Immunity, Myriam E. Gilles

Articles

No abstract provided.

Motion For Leave To File And Brief For Amici Curiae Legal Scholars And Academics In Support Of Petitioner, David Rudenstine

Amicus Briefs

Amici Curiae are legal scholars and academics who have dedicated their careers to the study, teaching and practice of United States constitutional law, including the death penalty and methods of execution. Many amici have written scholarly articles on these topics.

Many amici listed below earlier wrote to this Court in 2018 by submitting a brief in Bucklew v. Precythe, 139 S. Ct. 1112 (2019), to apprise the Court of information regarding the availability of alternative methods of execution to be considered in clarifying the applicable Eighth Amendment standard for method-of-execution challenges. Amici agreed with the Court’s clear statement in …

A 6-3 Supreme Court Could Allow The Government To Openly Discriminate In Its Policies, Katherine A. Shaw, Leah Litman

Online Publications

Over the past few days, the Supreme Court has agreed to hear challenges to hot-button Trump administration policies involving the border wall, an attempt to exclude noncitizens from the census breakdown used for allocating seats in Congress and limits on who can apply for asylum from Mexico.

The Myth Of Personal Liability: Who Pays When Bivens Claims Succeed, James E. Pfander, Alexander A. Reinert, Joanna C. Schwartz

Articles

In Bivens v. Six Unknown Named Agents, the Supreme Court held that federal law creates a right to sue federal officials for Fourth Amendment violations. For the last three decades, however, the Court has cited the threat of individual liability and the burden of government indemnification on agency budgets as twin bases for narrowing the right of victims to secure redress under Bivens. In its most recent decisions, Ziglar v. Abbasi and Hernandez v. Mesa, the Court said much to confirm that it now views personal liability less as a feature of the Bivens liability rule than …

Symposium: In “Gundy Ii,” Auer Survives By A Vote Of 4.6 To 4.4, Michael Herz

Online Publications

Under the “Auer doctrine,” named for the 1997 decision Auer v. Robbins, courts accept an agency’s interpretation of its own ambiguous regulation unless that interpretation is clearly erroneous, or flatly inconsistent with the text of the regulation, or unreasonable, or something like that. Auer is a principle of long standing. Just how long is one of the sources of disagreement in Kisor v. Wilkie, but however you count, it is a doctrine universally understood as well-settled until relatively recently. But a revolt has been brewing.

Why Kavanaugh Should Not Attend The White House Ceremony, Michael Herz

Online Publications

Brett Kavanaugh is now Justice Kavanaugh. He has been nominated, confirmed and — in a private ceremony on Saturday conducted by Chief Justice John Roberts and the retired Justice Anthony Kennedy — sworn in. There is nothing left to do. So why is he scheduled to be at the White House on Monday evening for a public ceremony, one that President Trump has inaccurately called a “swearing-in ceremony”?

How Strong Does The Evidence Against Kavanaugh Need To Be?, Katherine A. Shaw

Online Publications

The allegation made by Christine Blasey Ford — that at age 15 she was the victim of a sexual assault by a 17-year-old Brett Kavanaugh — has not only upended Judge Kavanaugh’s Supreme Court confirmation hearings, but has also left Americans wondering what standards should apply to an accusation like this.

Why Did Liberals Join The Majority In The Masterpiece Case?, Katherine A. Shaw

Online Publications

It was no surprise that Justice Anthony Kennedy, who has cast the decisive vote in so many important Supreme Court cases, wrote Monday’s majority opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The court ruled in favor of a Colorado baker named Jack Phillips who, on religious grounds, had refused to make a wedding cake for a gay couple.

Qualified Immunity At Trial, Alexander A. Reinert

Articles

Qualified immunity doctrine is complex and important, and for many years it was assumed to have an outsize impact on civil rights cases by imposing significant barriers to success for plaintiffs. Recent empirical work has cast that assumption into doubt, at least as to the impact qualified immunity has at pretrial stages of litigation. This Essay adds to this empirical work by evaluating the impact of qualified immunity at trial, a subject that to date has not been empirically tested. The results reported here suggest that juries are rarely asked to answer questions that bear on the qualified immunity defense. …

Should The President’S Words Matter In Court?, Katherine A. Shaw

Online Publications

The most striking aspect of last Thursday’s opinion by the United States Court of Appeals for the Fourth Circuit, which rejected the Trump administration’s latest effort to revive its travel ban for individuals from six predominantly Muslim countries, was its reliance on Donald Trump’s own words as candidate, president-elect and president. The court leaned particularly heavily on his now-famous campaign statement that he was “calling for a total and complete shutdown of Muslims entering the United States.”

The Burdens Of Pleading, Alexander A. Reinert

Articles

To preview my argument briefly, plausibility pleading formally asks judges—for the first time since the advent of the Federal Rules—to engage in a merits-based analysis at the pleading stage based on their “judicial experience and common sense.” Judges are expected to engage in this inquiry with only the factual allegations in the complaint at their disposal. Putting aside the difficulty of conducting this analysis under the best of circumstances, our federal judges have extremely limited judicial experience to apply to merits-based decisions. The number of trials, the ultimate arbiter of merit, has fallen precipitously in the past fifty years. Trials …

Constitutional Venue, Peter L. Markowitz, Lindsay C. Nash

Articles

A foundational concept of American jurisprudence is the principle that it is unfair to allow litigants to be haled into far away tribunals when the litigants and the litigation have little or nothing to do with the location of such courts. Historically, both personal jurisdiction and venue each served this purpose in related, but distinct ways. Personal jurisdiction is, at base, a limit on the authority of the sovereign. Venue, in contrast, aims to protect parties from being forced to litigate in a location where they would be unfairly disadvantaged. The constitutional boundaries of these early principles came to be …

Symposium: The Challengingly Uncategorizable Recess Appointments Clause, Michael Herz

Online Publications

I fear that I am participating in this discussion under false pretenses, because I have no idea how the Court will decide National Labor Relations Board v. Noel Canning. And the reasons go far beyond the fact that this is a case of first impression or the possibility that the whole thing is a nonjusticiable political question. I am not going to review the substantive arguments for and against the D.C. Circuit’s ruling. Instead, I will touch on some other aspects of the recess appointments issue that make it a particularly hard one to guess about.

Chevron'S Regrets: The Persistent Vitality Of The Nondelegation Doctrine, Michael C. Pollack

Articles

Since the Chevron decision in 1984, courts have extended to administrative agencies a high level of deference when those agencies reasonably interpret ambiguous statutes, reasoning that agencies have more technical expertise and public accountability than courts. However, when the agency’s interpretation implicates a significant policy choice, courts do not always defer. At times, they rely on principles of nondelegation to rule against the agency interpretation and require that choices be made by Congress instead.

Chevron makes no explicit exception for significant policy choices, but in cases like MCI v. AT&T and FDA v. Brown & Williamson, the Supreme Court …

After Deference: Formalizing The Judicial Power For Foreign Relations Law, Deborah Pearlstein

Articles

How much deference should courts afford executive branch interpretations of statutes and treaties? The question that has long engaged foreign relations scholars has found new salience as it has become apparent in recent years that the Supreme Court will neither abstain nor reliably defer to presidential judgment even in cases implicating national security. As the courts grapple with the scope of detention authority granted by Congress’ 2001 Authorization for the Use of Military Force, or the limits on that authority under the Geneva Conventions, a number of scholars have embraced administrative law deference doctrines such as that in Chevron v. …

Brief For Amici Curiae National Immigration Project Of The National Lawyers Guild, National Police Accountability Project, And Legal Services For Children In Support Of Petitioner, Betsy Ginsberg

Amicus Briefs

Amici have a substantial interest in the outcome of this case. The Federal Tort Claims Act ("FTCA" or the "Act") provides compensation for victims of government negligence and abuse. All too often, those cases arise in the immigration and law enforcement contexts, like the case at issue here. They arise when American citizens are unlawfully detained or deported. They arise when people in immigration detention are mistreated or denied proper medical care. And they arise when immigration officials engage in unlawful home raids.

A robust and uniform Federal Tort Claims Act is essential both to compensating victims and to preventing …