Law Commons^™

2019 Patent Law Decisions Of The Federal Circuit, Sanya Sukduang, Nicholas Doyle, Sydney Kestle, Yoonhee Kim, John Nappi

American University Law Review

No abstract provided.

2019 International Trade Law Decisions Of The Federal Circuit, Kevin J. Fandl

American University Law Review

No abstract provided.

James Madison, Citizens United, And The Constitutional Problem Of Corruption, Anthony J. Gaughan

American University Law Review

No abstract provided.

America's Amoral Constitution, Richard Albert

American University Law Review

The celebrated United States Constitution does not derive its legitimacy from morality. Its legitimacy is rooted in an amoral code structured around the peculiar value of outcome-neutrality. By design, the Constitution does not evaluate whether a lawful choice is morally right or wrong; it evaluates only whether the choice satisfies the procedures the Constitution requires for it to have been made. What matters, then, is not the content of the choice. It is the very act of choosing. These fiercely democratic foundations serve as both the font of the Constitution’s popular legitimacy and more ominously the greatest threat to the …

Protecting Genetic Identity With The Right Of Publicity: Applying California's Common Law Right Of Publicity To Direct-To-Consumer Genetic Testing, Steven A. Fisher

American University Law Review

The completion of the Human Genome Project has and will continue to spur extraordinary innovation in the realm of genetics. One such innovation was the rise of commercial, direct-to-consumer (DTC) genetic testing, which allows consumers to learn about their origin, family, and disease predisposition, all by paying a modest sum and providing a tube of saliva. But the hidden cost is more severe: forfeiture of control over one’s genetic identity. DTC genetic companies have exploited this vulnerability, entering into data-sharing agreements worth hundreds of millions of dollars.

This Comment argues that DTC genetic testing companies who sell and share consumers’ …

Race, Rights, And The Representation Of Children, Barry Feld, Perry Moriearty

American University Law Review

No abstract provided.

A Fiduciary Theory Of Prosecution, Bruce A. Green, Rebecca Roiphe

American University Law Review

No abstract provided.

Obvious But Not Clear: The Right To Refuse To Cooperate With The Police During A Terry Stop, Sam Kamin, Zachary Shiffler

American University Law Review

No abstract provided.

Extended Shareholder Liability For Systematically Important Financial Institutions, Alessandro Romano, Luca Enriques, Jonathan R. Macey

American University Law Review

No abstract provided.

Intergenerational Control: Why Genetic Modification Of Embryos Via Crispr-Cas9 Is Not A Fundamental Parental Right, Fernando Montoya

American University Law Review

No abstract provided.

The Halo Effect: Willful Infringement And Enhanced Damages In Light Of Halo, Rachel Weiner Cohen, Holly Victorson, Kellye Quirk

American University Law Review

The Supreme Court’s decision in Halo Electronics, Inc. v. Pulse Electronics, Inc. overruled the United States Court of Appeals for the Federal Circuit’s longstanding Seagate test and empowered district courts to exercise their discretion in deciding whether to enhance damages for willful patent infringement. In the three years since the Halo decision, district courts have developed their own approaches to addressing willfulness allegations at the various stages of litigation, including pleading, summary judgment, trial, and post-trial. This Article observes trends in how district courts have addressed willfulness claims at each stage of litigation, highlights factors courts have considered when declining …

The Complicated Relationship Of Patent Examination And Invalidation, Gregory Reilly

American University Law Review

The conventional view is that the Patent Office examines patent applications before issuance to assure compliance with the statutory criteria of patentability. Ex post invalidation in district court litigation or Patent Office cancellation proceedings then reviews the Patent Office’s work to correct errors that result from the Patent Office’s shortcomings, bias, or “rational ignorance” that limits resources spent on examination because of the irrelevance of most patents. Scholars, the Federal Circuit, and the Supreme Court have all endorsed this conventional view. However, it is wrong—or at least overly simplistic. The American patent system is only partially a system of ex …

Anti-Slapp Coverage And The First Amendment: Hurdles To Defamation Suits In Political Campaigns, David L. Hudson Jr.

American University Law Review

No abstract provided.

Political Participation, Expressive Association, And Judicial Review, Joshua S. Sellers

American University Law Review

No abstract provided.

Labor, Trade, And Populism: How Ilo-Wto Collaboration Can Save The Global Economic Order, Sungjoon Cho, Cesar F. Rosado-Marzan

American University Law Review

Populists are trying to take down the global economic order and its institutions. While some of those forces might be fueled by racism, they also play to legitimate social concerns that include massive plant closings and deindustrialization, inadequate skills programs, and lack of decent jobs. Some of these problems also concern the Global South, as workers there face exploitation, unhealthy working conditions, and other social ills caused by global capitalism. In light of these problems, this Article argues that the International Labor Organization (ILO) should design new conventions on lead firm liability and mass layoffs. While other scholars and policymakers …

Judge, Jury, And Executioner: Why Private Parties Have Standing To Challenge An Executive Order That Prohibits Icts Transactions With Foreign Adversaries, Ari K. Bental

American University Law Review

On May 15, 2019, President Donald Trump, invoking his constitutional executive and statutory emergency powers, signed Executive Order 13,873, which prohibits U.S. persons from conducting information and communications technology and services (ICTS) transactions with foreign adversaries. Though the executive branch has refrained from publicly identifying countries or entities as foreign adversaries under the Executive Order, observers agree that the Executive Order’s main targets are China and telecommunications companies, namely Huawei, that threaten American national security and competitiveness in the race to provide the lion’s share of critical infrastructure to support the world’s growing 5G network.

Executive Order 13,873 raises several …

Cve And Constitutionality In The Twin Cities: How Countering Violent Extremism Threatens The Equal Protection Rights Of American Muslims In Minneapolis-St. Paul, Sarah Chaney Reichenbach

American University Law Review

In 2011, President Barack Obama announced a national strategy for countering violent extremism (CVE) to attempt to prevent the “radicalization” of potential violent extremists. The Obama Administration intended the strategy to employ a community-based approach, bringing together the government, law enforcement, and local communities for CVE efforts. Despite claiming to target extremism in all forms, government-funded CVE programs in the United States have almost exclusively focused on Islamic extremism. One pilot program focused on the Twin Cities in Minnesota—Minneapolis and St. Paul—home to the largest Somali community in the United States, most of whom are Muslim. The Trump Administration has …

Pisc In The Wind? Holding Healthcare Organizations Liable For Publicly Issued Statements Of Conduct, Joshua E. Perry, Timothy L. Fort

American University Law Review

Has the moment arrived when we can no longer permit a company, that espouses value statements and ethical programs professing a dedication to help and to heal, to act in ways that are contrary and harmful to individual or collective goods? Fully acknowledging that we, two legally trained business ethics professors, are pursuing a line of inquiry rooted in the aspiration of a more robustly just marketplace, we are convinced that it is time for serious reflection upon the question: Should healthcare companies be held accountable for ways in which they deviate from publicly issued statements of conduct (PISC)?

Sovereign Exception No More: The Impact Of Israel's Potential Annexation Of The Jordan River Valley On Israel's Obligations Under The International Covenant On Civil And Political Rights, Dana Busgang

American University Law Review

On July 1, 2020, the international community released a collective breath as embattled Israeli Prime Minister Benjamin Netanyahu announced a temporary halt to his election promise to formally annex (or, in his words, apply sovereignty to) the occupied Jordan River Valley. Just forty-three days later, a victorious Netanyahu announced that as part of a peace accord with the United Arab Emirates, he agreed to drop his annexation plans. While Israel’s flirtation with official annexation appears to be over for the moment, the momentum gained over the last two years is unlikely to disappear. Further, many, including Palestinians, argue that Israel’s …

Ferc's Tether Tantrum: Why Suppressing State Support For Renewable Energy Violates The Federal Power Act And Threatens U.S. Climate Leadership, Philip N. Killeen

American University Law Review

The United States’ role as a proactive leader on combatting climate change reached its high-water mark during the presidency of Barack Obama. At the United Nation’s 2015 Paris Climate Conference, the United States acknowledged the scientifically observed link between anthropogenic greenhouse gas (GHG) emissions and global warming and negotiated a deal with other nations to adapt to and prevent its consequences. Among the commitments that emerged from this deal was the United States’ ambitious but achievable target to reduce economy-wide GHG emissions 26 to 28% below 2005 levels by 2025. The most consequential effort to meet this goal was the …

Into The Void: The Gao's Role In The Regulartory State, Bridget C.E. Dooling

American University Law Review

The study of Congress largely focuses on its members, committees, and leaders. Meanwhile, the study of federal agencies tends to focus on those that fall within the executive branch. But many agencies and institutions exist to support Congress, and administrative law and political science scholarship has largely overlooked their internal operations. Far more than ministerial, some of these agencies have the ability to shape policy in very meaningful ways. They also have their own institutional interests distinct from the legislators they serve. As instruments of Congress, though, these agencies are generally exempt from the Administrative Procedure Act and a host …

The Dichotomy Between Overcriminalization And Underregulation, Ellen S. Podgor

American University Law Review

The U.S. Securities and Exchange Commission (SEC) failed to properly investigate Bernard Madoff’s multi-billion-dollar Ponzi scheme for over ten years. Many individuals and charities suffered devastating financial consequences from this criminal conduct, and when eventually charged and convicted, Madoff received a sentence of 150 years in prison. Improper regulatory oversight was also faulted in the investigation following the Deepwater Horizon tragedy. Employees of the company lost their lives, and individuals were charged with criminal offenses. These are just two of the many examples of agency failures to properly enforce and provide regulatory oversight, with eventual criminal prosecutions resulting from the …

Moderating Content Moderation: A Framework For Nonpartisanship In Online Governance, Edward Lee

American University Law Review

Internet platforms serve two important roles that often conflict. Facebook, Twitter, YouTube, and other internet platforms facilitate the unfettered exchange of free speech by millions of people, yet they also moderate or restrict the speech according to their “community standards,” such as prohibitions against hate speech and advocating violence, to provide a safe environment for their users. These dual roles give internet platforms unparalleled power over online speech—even more so than most governments. Yet, unlike government actors, internet platforms are not subject to checks and balances that courts or agencies must follow, such as promulgating well-defined procedural rules and affording …

The Genius Of Hamilton And The Birth Of The Modern Theory Of The Judiciary, William M. Treanor

Georgetown Law Faculty Publications and Other Works

In late May 1788, with the essays of the Federalist on the Congress (Article I) and the Executive (Article II) completed, Alexander Hamilton turned, finally, to Article III and the judiciary. The Federalist’s essays 78 to 83 – the essays on the judiciary - had limited effect on ratification. No newspaper outside New York reprinted them, and they appeared very late in the ratification process – after eight states had ratified. But, if these essays had little immediate impact – essentially limited to the ratification debates in New York and, perhaps, Virginia – they were a stunning intellectual achievement. Modern …

Net Neutrality And Consumer Welfare: Divergent Approaches To The Egyptian Telecommunication Regulation, Mennatullah Helmy Hamada

Theses and Dissertations

This thesis explores the implications of the debate on net neutrality on telecommunication policy in Egypt. I argue that consumer welfare should be the main determining factor of the effects of net neutrality obligations on the telecom sector. Consumer welfare must remain the focus of any regulator while applying net neutrality obligations. Consumers in any telecom market care about three elements, namely, prices, quality and speed of the internet, and openness and accessibility of the content available over the internet. Meanwhile, the main controllers of the telecom market are torn between preserving the nature of the internet and their own …

Federal Grant Rules And Realities In The Intergovernmental Administrative State: Compliance, Performance, And Politics, Eloise Pasachoff

Georgetown Law Faculty Publications and Other Works

Federal grants are one of the government’s most important policy tools. While high-profile debates about constitutional coercion, entitlement reform, and budget cuts receive most of the public attention given to federal grants, a more prosaic but equally important reality describes the operation of these grants on the ground: the web of detailed rules and massive enforcement structure devoted to the administrative side of federal grants, which this Article refers to as “the grants-management regime.” Unacknowledged in the legal literature, the grants-management regime drives the implementation of federal grants and tells a very different story than the standard concern about feckless …

Law Enforcement Officers As Victims Of Felonious Killings And Assaults: An Analysis Of The Predictors Of Lethality And The Likelihood Of Officer Assault Or Death, Gabriella Mercado

Theses and Dissertations

This study was designed to explore the predictors of lethality for the outcome of police officer assault with injury and felonious death. Recent news has focused on police brutality and their excessive use of force. Conversely, the inverse relationship has not received much focus. To explore the aforementioned relationship, data from the LEOKA program on 1,375 officers who were feloniously killed or assaulted with serious injury between the years of 2008 and 2017 were examined to determine the statistical significance between several predictor variables and the outcome variable.

Binary logistic regression was used to answer the research questions posed by …

The Decade Of Democracy’S Demise, James Sample

Hofstra Law Faculty Scholarship

In the decade since Citizens United v. FEC, which, while consequential in its own right, is also not responsible for all the ills attributed to it by its detractors, the Supreme Court has decided a stunning number of what this Article terms to be democracy cases. Each respective case is the subject of substantial scholarship within its sphere — voting rights, contribution limits, public financing, partisan gerrymandering, federal bribery law, and sub-variations of each area — Decade of Democracy’s Demise seeks to remove that scholarship from the respective topical silos, and to develop and analyze a heretofore scarcely considered composite. …

Litigating Citizenship, Cassandra Burke Robertson, Irina D. Manta

Hofstra Law Faculty Scholarship

By what standard of proof — and by what procedures — can the U.S. government challenge citizenship status? That question has taken on greater urgency in recent years. News reports discuss cases of individuals whose passports were suddenly denied, even after the government had previously recognized their citizenship for years or even decades. The government has also stepped up efforts to re-evaluate the naturalization files of other citizens and has asked for funding to litigate more than a thousand denaturalization cases. Likewise, citizens have gotten swept up in immigration enforcement actions, and thousands of citizens have been erroneously detained or …

Kaestner Fails: The Way Forward, Mitchell M. Gans

Hofstra Law Faculty Scholarship

This past term, the Supreme Court applied the due process clause to prevent the states from closing down a tax strategy that employs out-of-state trusts. Many had hoped that the case would serve as a vehicle for the Court to overrule taxpayer-friendly precedents that make the strategy possible. But it failed. The question that emerges is whether the decision leaves the states with a path to address the strategy and thereby prevent it from being used to exacerbate issues of inequality. After examining the decision, this paper considers the options available to the states and then suggests a way forward.