Law Commons^™

“Government By Injunction,” Legal Elites, And The Making Of The Modern Federal Courts, Kristin Collins

Faculty Scholarship

The tendency of legal discourse to obscure the processes by which social and political forces shape the law’s development is well known, but the field of federal courts in American constitutional law may provide a particularly clear example of this phenomenon. According to conventional accounts, Congress’s authority to regulate the lower federal courts’ “jurisdiction”—generally understood to include their power to issue injunctions— has been a durable feature of American constitutional law since the founding. By contrast, the story I tell in this essay is one of change. During the nineteenth century and into the twentieth, many jurists considered the federal …

(In)Valid Patents, Paul Gugliuzza

Faculty Scholarship

Increasingly, accused infringers challenge a patent’s validity in two different forums: in litigation in federal court and in post-issuance review at the Patent and Trademark Office (PTO). These parallel proceedings have produced conflicting and controversial results. For example, in one recent case, a district court rejected a challenge to a patent’s validity and awarded millions of dollars in damages for infringement. The Federal Circuit initially affirmed those rulings, ending the litigation over the patent’s validity. In a subsequent appeal about royalties owed by the infringer, however, the Federal Circuit vacated the entire judgment — including the validity ruling and damages …

Regulating Patent Assertions, Paul Gugliuzza

Faculty Scholarship

Recent years have seen a proliferation of statutes regulating and lawsuits challenging patent enforcement conduct. The Federal Circuit, however, has held that acts of patent enforcement are illegal only if there is clear and convincing evidence both that the patent holder’s infringement allegations were objectively baseless and that the patent holder knew or should have known its allegations were baseless. This chapter summarizes recent efforts by state governments and the federal government to control patent enforcement behavior, questions the broad immunity the Federal Circuit has conferred on patent holders, and seeks to improve pending federal legislation governing patent enforcement. In …

Early Filing And Functional Claiming, Paul Gugliuzza

Faculty Scholarship

A major problem in the patent system is that many patents claim far more than the patentee actually invented. In his perceptive article, Ready for Patenting, Mark Lemley argues that this overclaiming is caused in part by legal doctrines that encourage inventors to file a patent application as early as possible, often before — or even instead of — building their invention. Patents issued from early-filed applications, Lemley argues, tend to be overly broad because the applicant does not yet know how the invention actually works.

This response essay, part of the Boston University Law Review’s symposium on Notice Failure …

Submerged Precedent, Elizabeth Mccuskey

Faculty Scholarship

Numerous studies have pointed to the skewed picture of trial courts' workload, management, and disposition of cases that exists from examining Westlaw and Lexis opinions alone, akin to navigating the iceberg from its tip.⁴ But submerged precedent pushes docketology in an uncharted direction by identifying a mass of reasoned opinions-putative precedent and not mere evidence of decision-making-that exist only on dockets. Submerged precedent thus raises the specter that docket-based research may be necessary in some areas to ascertain an accurate picture of the law itself not just trial courts' administration of it.

The existence of a submerged body …

On Getting It Right: Remembering Justice Antonin Scalia, Gary S. Lawson

Faculty Scholarship

In the summer of 1985, when then-Judge Antonin Scalia’s three law clerks were finishing their term at the D.C. Circuit Court of Appeals, we1 gave him a plaque emblazoned with the phrase, “It’s hard to get it right.” That was a phrase that Judge, and later Justice, Scalia’s law clerks heard often—never in anger, never in rebuke, but always as a reminder (often accompanied by a wry smile) that . . . well, sometimes it’s hard to get it right.

What We Know (And Need To Know) About Court-Annexed Dispute Resolution, Deborah Thompson Eisenberg

Faculty Scholarship

Mediation and other alternative dispute resolution (ADR) processes are now well integrated into the United States judicial system, in both civil and criminal cases. This white paper, drafted for the American Bar Association Commission on the Future of Legal Services, summarizes empirical evidence about the costs and benefits of court-annexed ADR. The first-generation of ADR research found that mediation and other ADR processes resulted in high party satisfaction rates, high settlement rates, cost savings and efficiency, increased long-term cooperation among the parties, and higher compliance rates with the outcome. The paper then examines a ground-breaking study conducted by the Maryland …

Neutralizing The Stratagem Of “Snap Removal”: A Proposed Amendment To The Judicial Code, Arthur Hellman, Lonny Hoffman, Thomas D. Rowe Jr., Joan Steinman, Georgene Vairo

Faculty Scholarship

The “Removal Jurisdiction Clarification Act” is a narrowly tailored legislative proposal designed to resolve a widespread conflict in the federal district courts over the proper interpretation of the statutory “forum-defendant” rule.

The forum-defendant rule prohibits removal of a diversity case “if any of the parties in interest properly joined and served as defendants is a citizen of the [forum state].” 28 U.S.C. § 1441(b)(2) (emphasis added). Some courts, following the “plain language” of the statute, hold that defendants can avoid the constraints of the rule by removing diversity cases to federal court when a citizen of the forum state has …

Practice And Precedent In Historical Gloss Games, Joseph Blocher, Margaret H. Lemos

Faculty Scholarship

No abstract provided.

The Human Rights Of Sea Pirates: Will The European Court Of Human Rights Decisions Get More Killed?, Barry Hart Dubner, Brian Othero

Faculty Scholarship

No abstract provided.

De Facto Class Actions: Plaintiff-And Defendant-Oriented Injunctions In Voting Rights, Election Law, And Other Constitutional Cases, Michael T. Morley

Faculty Scholarship

No abstract provided.

A Crackerjack Of A Sea Yarn: The Triumphs, Tributes And Trials Of Treasure Hunter Tommy Thompson, Taylor Simpson-Wood

Faculty Scholarship

No abstract provided.

Lack Of Marketability And Minority Discounts In Valuing Close Corporation Stock: Elusiveness And Judicial Synchrony In Pursuit Of Equitable Consensus, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

The Distinctive Role Of Justice Samuel Alito: From A Politics Of Restoration To A Politics Of Dissent, Neil S. Siegel

Faculty Scholarship

Justice Samuel Alito is regarded by both his champions and his critics as the most consistently conservative member of the current Supreme Court. Both groups seem to agree that he has become the most important conservative voice on the Court. Chief Justice John Roberts has a Court to lead; Justice Antonin Scalia and his particular brand of originalism have passed on; Justice Clarence Thomas is a stricter originalist and so writes opinions that other Justices do not join; and Justice Anthony Kennedy can be ideologically unreliable. Justice Alito, by contrast, is unburdened by the perceived responsibilities of being Chief Justice, …

Inherent National Sovereignty Constitutionalism: An Original Understanding Of The U.S. Constitution, Robert J. Kaczorowski

Faculty Scholarship

No abstract provided.

Privatizing Public Litigation, Margaret H. Lemos

Faculty Scholarship

Government litigators increasingly use private resources—human and financial—to support their efforts in court. In some cases, government entities hire private lawyers to perform legal work on behalf of the government; in others, they draw on private donations to fund litigation; and in some cases they do both, relying on privately funded private lawyers to litigate cases in the government’s name. These mergers of public and private can be understood as part of broader trends toward the privatization of government services. This Article uses lessons from the privatization debates to illuminate the likely costs and benefits of bringing private actors into …

Judicial Retirements And The Staying Power Of U.S. Supreme Court Decisions, Stuart M. Benjamin, Georg Vanberg

Faculty Scholarship

The influence of U.S. Supreme Court majority opinions depends critically on how these opinions are received and treated by lower courts, which decide the vast majority of legal disputes. We argue that the retirement of Justices on the Supreme Court serves as a simple heuristic device for lower court judges in deciding how much deference to show to Supreme Court precedent. Using a unique dataset of the treatment of all Supreme Court majority opinions in the courts of appeals from 1953 to 2012, we find that negative treatments of Supreme Court opinions increase, and positive treatments decrease, as the Justices …

Our Prescriptive Judicial Power: Constitutive And Entrenchment Effects Of Historical Practice In Federal Courts Law, Ernest A. Young

Faculty Scholarship

Scholars examining the use of historical practice in constitutional adjudication have focused on a few high-profile separation-of-powers disputes, such as the recent decisions in NLRB v. Noel Canning and Zivotofsky v. Kerry. This essay argues that “big cases make bad theory” — that the focus on high-profile cases of this type distorts our understanding of how historical practice figures in constitutional adjudication more generally. I shift focus here to the more prosaic terrain of federal courts law, in which practice plays a pervasive role. That shift reveals two important insights: First, while historical practice plays an important constitutive role, structuring …

Patent Institutions: Shifting Interactions Between Legal Actors, Arti K. Rai

Faculty Scholarship

This contribution to the Research Handbook on Economics of Intellectual Property Rights (Vol. 1 Theory) addresses interactions between the principal legal institutions of the U.S. patent system. It considers legal, strategic, and normative perspectives on these interactions as they have evolved over the last 35 years. Early centralization of power by the U.S. Court of Appeals for the Federal Circuit, newly created in 1982, established a regime dominated by the appellate court's bright-line rules. More recently, aggressive Supreme Court and Congressional intervention have respectively reinvigorated patent law standards and led to significant devolution of power to inferior tribunals, including newly …

Courts Of Good And Ill Repute: Garoupa And Ginsburg’S Judicial Reputation: A Comparative Theory, Tracey E. George, G. Mitu Gulati

Faculty Scholarship

Nuno Garoupa and Tom Ginsburg have published an ambitious book that seeks to account for the great diversity of judicial systems based, in part, on how courts are designed to marshal the power of a high public opinion of the judiciary. Judges, the book posits, care deeply about their reputations both inside and outside the courts. Courts are designed to capitalize on judges’ desire to maximize their reputation, and judges’ existing stock of reputation can affect the design of the courts which they serve. We find much to like in this book, ranging from its intriguing and ambitious positive claims …

Brief Of Amici Curiae Federal Courts Scholars And Southeastern Legal Foundation In Support Of Respondents, Kimberly S. Hermann, Ernest A. Young

Faculty Scholarship

No abstract provided.

Backlash Against International Courts In West, East And Southern Africa: Causes And Consequences, Karen J. Alter, James T. Gathii, Laurence R. Helfer

Faculty Scholarship

This paper discusses three credible attempts by African governments to restrict the jurisdiction of three similarly-situated sub-regional courts in response to politically controversial rulings. In West Africa, when the ECOWAS Court upheld allegations of torture by opposition journalists in the Gambia, that country’s political leaders sought to restrict the Court’s power to review human rights complaints. The other member states ultimately defeated the Gambia’s proposal. In East Africa, Kenya failed in its efforts to eliminate the EACJ and to remove some of its judges after a decision challenging an election to a sub-regional legislature. However, the member states agreed to …

Military Justice, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Jurisdiction, Foundations, Ralf Michaels

Faculty Scholarship

No abstract provided.

The Concept Of The Speech Platform: Walker V. Texas Division, Abner S. Greene

Faculty Scholarship

In Walker, the Court deemed Texas’ specialty license plate program government speech, and thus applied no First Amendment review to the state’s refusal to allow a Confederate battle flag specialty plate, even though the reason for the refusal was that the plate was offensive. The dissent considered this unconstitutional viewpoint discrimination in a limited public forum. This article argues that the Walker result was correct, but for the wrong reason. Government should have the power to forbid hateful or vulgar speech from limited public forums such as specialty or vanity license plates, transit ads, and after-school extracurricular activities, even though …

Second Amendment Traditionalism And Desuetude, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Chevron Bias, Philip A. Hamburger

Faculty Scholarship

This Article takes a fresh approach to Chevron deference. Chevron requires judges to defer to agency interpretations of statutes and justifies this on a theory of statutory authorization for agencies. This Article, however, points to a pair of constitutional questions about the role of judges – questions that have not yet been adequately asked, let alone answered.

One question concerns independent judgment. Judges have a constitutional office or duty of independent judgment, under which they must exercise their own independent judgment about what the law is. Accordingly, when they defer to agency interpretations of the law, it must be asked …

Litigation: Time To Revisit Chevron Difference, Jack M. Beermann, Charles J. Cooper, Thomas W. Merrill, Amy Wildermuth, Don R. Wildermouth

Faculty Scholarship

Article is a transcript from the 2014 National Lawyers Convention panel on Millennials, Equity, and the Rule of Law. A video recording of the panel can be viewed here.

JUSTICE DON WILLETT: ... because Chevron deference is kind of like bacon. Some people like their Chevron deference rigid and crisp. Other people like it a little squishy and a little bendable. A few people dislike it altogether, no matter how it's served. But Chevron' is now thirty years old, older than a number of people in the audience today, and a lot has changed. The regulatory state …

Family Defense And The Disappearing Problem-Solving Court, Jane M. Spinak

Faculty Scholarship

Problem-solving courts began to flourish in the early 1990s with the creation of criminal drug courts as alternatives to standard criminal court practices. In the drug courts, defendants would receive treatment rather than incarceration and be monitored closely within the court. Family Court Treatment Parts (FCTPs) were developed in the late 1990s in New York State, fully embracing the three key components of the problem-solving drug court model: (1) an activist judge who helps to fashion, and then closely monitor, dispositions; (2) a team of lawyers, social workers, and court personnel who try to identify and then work toward commons …

The New Public, Sarah Seo

Faculty Scholarship

By exploring the intertwined histories of the automobile, policing, criminal procedure, and the administrative state in the twentieth-century United States, this Essay argues that the growth of the police’s discretionary authority had its roots in the governance of an automotive society. To tell this history and the proliferation of procedural rights that developed as a solution to abuses of police discretion, this Essay examines the life and oeuvre of Charles Reich, an administrative-law expert in the 1960s who wrote about his own encounters with the police, particularly in his car. The Essay concludes that, in light of this regulatory history …