Law Commons^™

The Past, Present, And Future Of The U.S. Patent System, Megan M. La Belle

Scholarly Articles

This essay discusses the evolution of the U.S. patent system over the past decade. It explains how various rules established by the U.S. Court of Appeals for the Federal Circuit, the appellate court with exclusive jurisdiction over patent cases, created an environment that heavily favored patent owners and disadvantaged accused infringers. In response, Congress and the courts set out to reform our patent system and implemented a host of changes, most notably the passage of comprehensive legislation known as the America Invents Act (AIA) in 2011. Since the AIA, the patent system in the U.S. has certainly changed. Indeed, some …

Assessing Assisted Reproductive Technology, Raymond C. O'Brien

Scholarly Articles

Technological innovation possesses both opportunity and challenge. Because assisted reproductive technology (ART) involves sexual intimacy, parenthood, personhood, gender identity, privacy, legacy, and a plethora of religious, historical, sociological, and ethical underpinnings, the challenges presented in such technological innovation are substantial. Nonetheless, the opportunities are significant and progressive. Because of in vitro fertilization, gestational and genetic surrogacy, posthumous conception, and mitochondrial replacement therapy, humans now have the opportunity to overcome infertility, gender obstacles to parentage, dynastic limitations, and diseases that have long plagued mothers and infants. However, challenges include the exploitation of surrogates, unequal access to ART services, possibilities of cloning …

Without Evidence: Joel Richard Paul’S John Marshall, Kevin C. Walsh

Scholarly Articles

John Marshall—soldier, lawyer, legislator, statesman, and fourth chief justice of the United States—led a long public life that spanned from the American Revolution to the rise of Jacksonian democracy. Joel Richard Paul’s full-length biography takes the reader from Marshall’s birth on the Virginia frontier in 1755, to his death in 1835 at the head of an American judiciary that had gained significantly in power and respect because of Marshall’s leadership over the preceding 34 years.

Kennedy’S Last Term: A Report On The 2017–2018 Supreme Court, Kevin C. Walsh, Marc O. Degirolami

Scholarly Articles

Twenty-eighteen brought the end of Justice Anthony Kennedy’s tenure on the Supreme Court. We are now entering a period of uncertainty about American constitutional law. Will we remain on the trajectory of the last half-century? Or will the Court move in a different direction?

The character of the Supreme Court in closely divided cases is often a function of the median justice. The new median justice will be Chief Justice John Roberts if Kennedy’s replacement is a conservative likely to vote most often with Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito. This will mark a new phase of the …

The "Irish Born" One American Citizenship Amendment, Kevin C. Walsh

Scholarly Articles

Our Constitution has a deferred maintenance problem because we have fallen out of the habit of tending to its upkeep ourselves. The silver lining is a double benefit from any constitutional maintenance projects that we undertake now. These projects are good not only for what they do to our Constitution, but also for making us exercise self-government muscles that have atrophied from civic sloth.

Fortunately, the time has never been better to repeal one of our Constitution’s most pointlessly exclusionary provisions. The President of the United States is married to a naturalized citizen. And nobody can legitimately question the patriotism …

Who Are “Officers Of The United States”?, Jennifer L. Mascott

Scholarly Articles

For decades courts have believed that only officials with “significant authority” are “Officers of the United States” subject to the Constitution’s Article II Appointments Clause requirements. But this standard has proved difficult to apply to major categories of officials. This Article examines whether “significant authority” is even the proper standard, at least as that standard has been applied in modern practice. To uncover whether the modern understanding of the term “officer” is consistent with the term’s original public meaning, this Article uses two distinctive tools: (i) corpus linguistics-style analysis of Founding-era documents and (ii) examination of appointment practices during the …

The Dictionary As A Specialized Corpus, Jennifer L. Mascott

Scholarly Articles

No abstract provided.

Gundy V. United States: Reflections On The Court And The State Of The Nondelegation Doctrine, Jennifer L. Mascott

Scholarly Articles

This short "reflections" essay is an invited piece that addresses the Supreme Court's consideration of the "nondelegation doctrine" this coming Term in Gundy v. United States. The Court has not found any statutory provision to be unconstitutional on nondelegation grounds since 1935. Will that change this Term when the Court evaluates the Attorney General's authority to retroactively apply federal sex offender registration requirements to individuals convicted prior to enactment of those statutory rules? Will the new makeup of the Court after Justice Kennedy's retirement impact the likely outcome of this nondelegation challenge?

“Officers” In The Supreme Court: Lucia V. Sec, Jennifer L. Mascott

Scholarly Articles

This article appeared in the Cato Supreme Court Review addressing the Court's October Term 2017. The article addresses the Court's June 2018 opinion in Lucia v. SEC, which held that administrative law judges in the Securities and Exchange Commission are "Officers of the United States" within the meaning of the Constitution's Appointments Clause. Significant portions of this article are based on my earlier study of the original meaning of the Appointments Clause that the Stanford Law Review published in February 2018, see 73 Stan. L. Rev. 443 (2018).

Ask A Director: Reporting Accomplishments, Caroline L. Osborne

Scholarly Articles

None available.