Law Commons^™

Toward The Substitutionary Promise Of Ptab Review, Saurabh Vishnubhakat

Online Publications

Although administrative patent trial proceedings under the Leahy-Smith America Invents Act (AIA) have done much to improve the efficient reevaluation of patent validity, significant problems remain. Divergent burdens of proof among the United States Patent and Trademark Office (USPTO) and Patent Trial and Appeal Board (PTAB) and the U.S. district courts allow the agency to disregard prior judicial decisions about patent validity and for patents to be relitigated even after surviving judicial review. Divergent claim construction standards allow for similar arbitrage, and, although the USPTO has now aligned its claim construction approach with that of the courts through rulemaking, that …

Time To Enumerate The Slave Trade As A Distinct Provision In The Crimes Against Humanity Treaty, Patricia Viseur Sellers, Jocelyn Getgen Kestenbaum, Alexandra Lily Kather

Online Publications

The proposed Draft articles on Prevention and Punishment of Crimes against Humanity under consideration at the United Nations General Assembly’s Sixth Committee (Legal) are bereft of a distinct provision to address the international crime of the slave trade.

Common Sense Recommendations For The Application Of Tax Law To Digital Assets, Luís Calderón Gómez, Young Ran (Christine) Kim, Edward A. Zelinsky

Online Publications

In response to the Joint Committee on Taxation’s July 2023 request for comments on application of various Internal Revenue Code sections on digital assets, we propose a consistent set of rules to apply current law to digital assets. We highlight that the underlying economics and characteristics of transactions should be the primary concern for the application of rules and the valuation of digital assets. We believe any digital asset rules should (1) treat classes of digital assets with unique characteristics differently based on their economics, (2) minimize incentives for users to engage in tax-motivated structuring of transactions, and (3) allow …

Additional Materials For Judicial Uses Of Images: Vision In Decision, Peter Goodrich

Online Publications

These images are taken from published judicial decisions that are publicly available. The instances used are to analyze the manner in which judges see the subject matter of disputes and to elaborate a theory of the vision underlying decisions.

Affirmatively Disclosing Agency Legal Materials, Bernard W. Bell, Cary Coglianese, Michael E. Herz, Margaret B. Kwoka, Orly Lobel

Online Publications

Administrative agencies’ law-generating powers have long been recognized, as has the importance of making agency-generated law available to the public. In 1971, the Administrative Conference of the United States (ACUS) recommended that “agency policies which affect the public should be articulated and made known to the public to the greatest extent feasible.” Over the years, ACUS has adopted numerous recommendations to that end.

Memorandum On Reopening The Dodd-Frank Act Section 956 Incentive Compensation Rule, Michael E. Herz, Ronald Levin, Nina A. Mendelson, Peter M. Shane, Peter L. Strauss

Online Publications

Professor Michael Herz, along with four other administrative law professors, sent a letter to six agencies about legal options regarding a long-delayed rule aimed at executive compensation.

Disclosure Of Agency Legal Materials, Bernard W. Bell, Cary Coglianese, Michael E. Herz, Margaret B. Kwoka, Orly Lobel

Online Publications

This proposed recommendation identifies statutory reforms that, if enacted by Congress, would provide clear standards as to what legal materials agencies must publish and where they must publish them (whether in the Federal Register, on their websites, or elsewhere). The amendments would also account for technological developments and correct certain statutory ambiguities and drafting errors. The objective of these amendments would be to ensure that agencies provide ready public access to important legal materials in the most efficient way possible.

Professor Bernard W. Bell (Rutgers Law School), Professor Cary Coglianese (University of Pennsylvania Law School), Professor Michael Eric Herz (Benjamin …

Montana Is Trying To Ban Tiktok. What Does The First Amendment Have To Say?, Deborah Pearlstein, John Dellamore

Online Publications

Last month, Montana became the first U.S. state to pass a bill banning TikTok from operating within its borders. If Governor Greg Gianforte signs some version of the bill, it will become the first statewide ban in the country to take direct aim at the popular social media app, which various U.S. government officials have warned poses a serious national security threat. But while Montana may be the first to act, significant gaps remain in the public debate surrounding both the nature of the threat that TikTok presents, and the constitutional questions that trying to regulate it might create.

Just Kidding? The Problem Of Unenforceable Waivers Of Liability, Anthony J. Sebok

Online Publications

In their forthcoming article, Unenforceable Waivers, Edward Cheng, Ehud Guttel, and Yuval Procaccia (“CGP”) ask an embarrassing question: Why do businesses require customers to sign waivers that have been struck down by courts in published opinions that are available not only to their lawyers but also to their customers? In this Jot, I praise CGP for their sharp eye–this is torts scholarship at its best–and then evaluate their suggestions for reform.

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.

More On The Varying Meanings Of “Congress” And “Legislature”, Michael Herz

Online Publications

In a recent Election Law Blog post regarding the Independent State Legislature doctrine, Rick Pildes observes that the term “Congress” in the U.S. Constitution sometimes means Congress acting alone and sometimes means Congress acting through legislation. Given that, it makes perfect sense that the term “legislature” can also sometimes mean the one and sometimes the other. I agree. This post just expands the intratextual analysis.

Free Yezidi Foundation Public Memo – Lafarge Case, Jocelyn Getgen Kestenbaum, Patricia Viseur Sellers

Online Publications

This memorandum supports the Free Yezidi Foundation’s (FYF) filing in the Lafarge Case concerning allegations of complicity in crimes against humanity, including genocide. The Lafarge Corporation continuously operated its factory and, moreover, financially contributed to the Islamic State of Iraq and al-Sham (IS, ISIS, Daesh) between 2013 and 2014, inclusive of the period between 3 August 2014 and 19 September 2014. During those weeks, and represented in a timeline annexed to this memorandum, international and French media, international organizations, and governments extensively reported on and condemned IS acts committed against the Yezidi population that could constitute crimes against humanity under …

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

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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.

Sandy’S Joyfully Divided Soul And A Glimpse At A Constitutional Poethics In View Of Roe’S Leaked Demise, Richard Weisberg

Online Publications

In his version of the iconic story, Goethe has his hero say, “There are two Fausts in my soul!” And a century or so later, Camus’ lawyer narrator in The Fall puts his own first-person story under the sign of Janus, the Roman god with two faces looking in opposite directions. There is a bit of this doubleness in my friend Sandy's soul. I’ve thought for a while that his trained intuition follows a literary tune, but that his less Dionysical and more Apollonian mind points him towards history and the social sciences.

Bankruptcy As Social Safety Net, Pamela Foohey

Online Publications

One in ten Americans have filed bankruptcy at some point during their adult lives. Contrary to the pronouncements of some politicians, these filings do not reflect a series of personal failures and should not be understood as failures of character. Indeed, most of the people who file bankruptcy struggle for years to pay their debts before turning to bankruptcy law and courts for help. And most of the people who file say that they felt shame upon filing. Instead, the bankruptcy filings of millions and millions of people reflect systematic policy choices over the past forty years that have left …

The Other Cause Of January 6, Katherine A. Shaw

Online Publications

John Eastman. Rudy Giuliani. Donald Trump himself.

These people all bear some responsibility for the events of January 6, 2021. But there is another contributing factor—an institution, not a person—whose role is regularly overlooked, and that deserves a focus in the ongoing January 6 committee hearings: the Electoral College. The Electoral College isn’t responsible for President Trump’s efforts to remain in office despite his clear loss. But it was integral to Trump’s strategy, and it has everything to do with how close he came to success.

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

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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.

Quickly End Ny’S Suppressive Ballot Policy, Rachel Landy, Jarrett Berg

Online Publications

Earlier this year, with the 2022 midterm elections looming, New York’s Democratic members of Congress sued their own state Board of Elections in federal court for unconstitutional practices that disqualify ballots cast by duly registered voters. Chief among the alleged violations of New Yorkers’ right to vote is the practice of fully disqualifying so-called “wrong church” ballots cast by lost or misdirected voters at poll sites other than the ones to which they are assigned.

Should We Worry That The President Called Putin A “War Criminal” Out Loud?, Deborah Pearlstein

Online Publications

Commenting on the increasingly horrific images that have emerged from Bucha this week revealing the staggering brutality of Russian violence against civilians in Ukraine, President Joe Biden minced no words in his assessment of Vladmir Putin: “He is a war criminal,” the president said on Monday. The statement generated a significant new round of media attention, notwithstanding the reality that it was not exactly news. The U.S. State Department had issued a formal statement in March conveying its assessment “that members of Russia’s forces have committed war crimes in Ukraine,” and the president himself had called Putin a “war criminal” …

Yom Ha’Shoah In An Even More Special Context, Richard Weisberg

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This always precious day of mournful memory is linked in 2022 to the 80^th anniversary of the event that gave birth to all that unutterable sadness: the Wannsee Conference of 1942. In an otherwise innocuous building you can visit anytime you are in Berlin, a handful of men, over cakes and liqueur, devised the “Final Solution”. It took them around two days, well heated and protected from the ice and snow outdoors, to list mechanically their estimates of how many Jews lived in Europe’s various countries and how these Jews might be – though their written minutes never use …

Law’S Duct Tape? Using Public Nuisance To Fix The Holes In Administrative Law, Anthony J. Sebok

Online Publications

Public nuisance is in the news again. Three important opioid cases have been recently decided. In November plaintiffs lost a bench trial in California state court, and eight days later, the Oklahoma Supreme Court reversed a $465 million trial verdict, holding that, as a matter of law, public nuisance does not extend to the manufacturing or marketing of prescription drugs. About a week later, a jury in a bellwether, the Ohio federal MDL, held that pharmacies caused a public nuisance by failing to respond to curb medically unnecessary prescriptions.

Mass Comments’ Opportunity Costs, Michael Herz

Online Publications

Agencies, courts, and academics agree that notice-and-comment rulemaking is not a referendum. But that conceptualization presents a challenge when an agency is confronted with mass comments. If agencies are not counting but reading comments, and if mass comments are duplicative and often devoid of content beyond a strong expression of values or preference, then what do they add?

State Lawmakers Must Step In To Remedy Supreme Court Voting Rights Blunder, Rachel Landy, Jarrett Berg

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This June, a 6-3 Supreme Court decision further eroded the Voting Rights Act (VRA) by upholding an Arizona law that disqualifies ballots cast by voters at any poll site other than the one assigned — an administrative technicality that has been shown to disproportionately impact minority communities in multiple states.

Chevron Flip-Flops Of A Different Sort - Understanding The Shifting Politics Of Deference, Michael E. Herz

Online Publications

Like vaccinations, voter fraud, guns, taking a knee, and, well, everything, views on Chevron deference have become not just ideologically tinged but ideologically determined. Progressives are Chevron enthusiasts; conservatives are Chevron skeptics. Chevron is under siege, and the battle lines are familiar. Yet, on its face, Chevron is politically neutral. It increases agency power at the expense of judicial power; whether that is politically helpful depends on whether your team controls the White House or if it controls the courts. Furthermore, the current ideological array has not always been the case. When Chevron was decided, the enthusiasts were …

Fourth Amendment Review 2021, Ekow N. Yankah

Online Publications

When it comes to policing, the U.S. Supreme Court too often plays the role of the garish sun. Scholars counsel that policing is the quintessential local activity, often repeating that the United States has up to 18,000 local police forces, and if one wants to change policing, the place to look is your police chief, sheriff, or mayor. Yet despite our own warnings, we cannot help staring towards that Washingtonian marbled temple, to divine the shape of policing to come. If the Supreme Court cannot readily modify policing in each city and hamlet, it is unique in its ability to …

Who Defends: Judge Sutton's Vision And The Challenge Of A Plural Executive, Katherine A. Shaw

Online Publications

It’s no secret that this is a perilous moment for American democracy. We’re nine months out from a deadly attack on the U.S. Capitol, launched with the explicit goal of disrupting the peaceful transfer of power following the 2020 presidential election. Congress appears gridlocked on basic questions of debt and spending, and the possibility of a default before the end of the year remains a live one, with the covid pandemic still ongoing. The U.S. Supreme Court is facing an unprecedented legitimacy deficit in the eyes of the public. Election experts warn that future American elections, including the 2024 election, …

Immigration Cyber Prisons: Ending The Use Of Electronic Ankle Shackles, Tosca Giustini, Sarah Greisman, Peter L. Markowitz, Ariel Rosen, Zachary Ross, Alisa Whitfield, Christina Fialho, Brittany Castle, Leila Kang

Online Publications

The call to end immigration detention has garnered strong support in recent years due to a growing public awareness of its devastating impact on the individuals locked away, their families, and entire communities. Throughout the nation, communities, organizers, advocates, and public officials have demanded the shutdown of Immigration and Customs Enforcement (ICE) detention centers, particularly those operated by private prison companies.

However, less attention has been paid to another form of detention that has been insidiously expanding alongside ICE’s brick-and-mortar jails: the Intensive Supervision Assistance Program (ISAP), the primary component of ICE’s so-called “Alternatives to Detention” program. ISAP surveils, monitors, …

For Facebook’S Sake: Getting Conversant With Human Rights, Deborah Pearlstein

Online Publications

Each time I read a new article or interview with an American lawyer or legal scholar reacting to the recent decision by the Facebook Oversight Board (FOB) to invoke international human rights law in sustaining Facebook’s suspension of Donald Trump – I feel seized by the impulse to respond with an unsolicited public primer on what international human rights law (IHRL) is. It is not an unfamiliar feeling. On the contrary, the impulse (which I experience as uncomfortably paternalistic) has emerged repeatedly in the past, say, 20 years, during any one of countless exchanges with lawyers or academics who have …

A Way To Guarantee Voting Rights, Rachel Landy, Jarrett Berg

Online Publications

In 2004, state legislator Andrea Stewart-Cousins faced nine-term Republican Nick Spano in a state Senate election. The election was very close, certified in favor of Spano by 18 votes.