Law Commons^™

Federal Judge Seeks Patent Cases, Jonas Anderson, Paul R. Gugliuzza

Articles in Law Reviews & Other Academic Journals

That probably seems like a bizarre Craigslist ad. It’s not real—we mocked it up for this article. Still, and startlingly, it accurately portrays what’s happening in the Waco Division of the U.S. District Court for the Western District of Texas. One judge, appointed to the Western District only three years ago, has been advertising his courtroom through presentations to patent lawyers, comments to the media, procedural practices, and decisions in patent cases as the place to file a patent infringement lawsuit. That advertising has succeeded. In 2016 and 2017, the Waco Division received a total of five patent cases. In …

Equality Is A Brokered Idea, Robert Tsai

Articles in Law Reviews & Other Academic Journals

This essay examines the Supreme Court's stunning decision in the census case, Department of Commerce v. New York. I characterize Chief Justice John Roberts' decision to side with the liberals as an example of pursuing the ends of equality by other means – this time, through the rule of reason. Although the appeal was limited in scope, the stakes for political and racial equality were sky high. In blocking the administration from adding a citizenship question to the 2020 Census, 5 members of the Court found the justification the administration gave to be a pretext. In this instance, that lie …

Human Rights Heroes: The Challengers Of Free Speech, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

The U.S. Supreme Court's jurisprudence on freedom of speech and press spans little more than 100 years, during which justices from Oliver Wendell Holmes to John Roberts have weighed in on the development of the law. But perhaps more than in some other areas of constitu- tional law, the evolution and growth of free speech have required the courage, sacrifice, determination, and commitment of hundreds, maybe thousands, of litigants over the years who have waged heroic struggles for their rights.

Manufactured Emergencies, Robert Tsai

Articles in Law Reviews & Other Academic Journals

Emergencies are presumed to be unusual affairs, but the United States has been in one state of emergency or another for the last forty years. That is a problem. The erosion of democratic norms has led to not simply the collapse of the traditional conceptual boundary between ordinary rule and emergency governance, but also the emergence of an even graver problem: the manufactured crisis. In an age characterized by extreme partisanship, institutional gridlock, and technological manipulation of information, it has become exceedingly easy and far more tempting for a President to invoke extraordinary power by ginning up exigencies. To reduce …

What Would Justice Brennan Say To Justice Thomas, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Considerations Of History And Purpose In Constitutional Borrowing, Robert Tsai

Articles in Law Reviews & Other Academic Journals

This essay is part of a symposium issue dedicated to "Constitutional Rights: Intersections, Synergies, and Conflicts" at William and Mary School of Law. I make four points. First, perfect harmony among rights might not always be normatively desirable. In fact, in some instances, such as when First Amendment and Second Amendment rights clash, we might wish to have expressive rights consistently trump gun rights. Second, we can't resolve clashes between rights in the abstract but instead must consult history in a broadly relevant rather than a narrowly "originalist" fashion. When we do so, we learn that armed expression and white …

In Search Of The Real Roberts Court, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Human Rights Hero: The Supreme Court In Griswold V. Connecticut, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Specialized Standards Of Review, Jonas Anderson

Articles in Law Reviews & Other Academic Journals

ABSTRACT The applicable standard of review on appeal is governed by a simple rule: appellate courts review questions of law de novo, questions of fact for "clear error, " and questions of discretion for "abuse of discretion. Despite the apparent simplicity of the rule, its application has been uneven, to state it mildly. Scholars have written extensively about the application of the rule, but have yet to consider whether the traditional rule of "deference " should be altered when the appellate court is a specialized court. Despite the dearth of legal scholarship on specialized deference, the Supreme Court is keenly …

Magna Carta In Supreme Court Jurisprudence, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

Editor's Note: This article is adapted from "Magna Carta in Supreme Court Jurisprudence," which appears as Chapter 5 in Magna Carta and the Rule of Law, Daniel Magraw et al., eds., published by the American Bar Association in 2014.

Through Our Glass Darkly: Does Comparative Law Counsel The Use Of Foreign Law In U.S. Constitutional Adjudication?, Kenneth Anderson

Articles in Law Reviews & Other Academic Journals

This (35 pp.) essay appears as a contribution to a law review symposium on the work of Harvard Law School professor Mary Ann Glendon in comparative law. The essay begins by asking what comparative law as a scholarly discipline might suggest about the use of foreign (or unratified or nationally "unaccepted" international law) by US courts in US constitutional adjudication. The trend seemed to be gathering steam in US courts between the early-1990s and mid-2000s, but by the late-2000s, it appeared to be stalled as a practice, notwithstanding the intense scholarly interest throughout this period.

Practical politics within the US …

Patent Dialogue, Jonas Anderson

Articles in Law Reviews & Other Academic Journals

This Article examines the unique dialogic relationship that exists between the Supreme Court and Congress concerning patent law. In most areas of the law, Congress and the Supreme Court engage directly with each other to craft legal rules. When it comes to patent law, however, Congress and the Court often interact via an intermediary institution: the U.S. Court of Appeals for the Federal Circuit. In patent law, dialogue often begins when Congress or the Supreme Court acts as a dialogic catalyst, signaling reform priorities to which the Federal Circuit often responds.

Appreciating the unique nature of patent dialogue has important …

Congress As A Catalyst Of Patent Reform At The Federal Circuit, Jonas Anderson

Articles in Law Reviews & Other Academic Journals

The U.S. Court of Appeals for the Federal Circuit is the dominant institution in patent law. The court’s control over patent law and policy has led to a host of academic proposals to shift power away from the court and towards other institutions, including the U.S. Supreme Court, the U.S. Patent and Trademark Office, and federal district courts. Surprisingly, however, academics have largely dismissed Congress as a potential institutional check on the Federal Circuit. Congress, it is felt, is too slow, too divided, and too beholden to special interests to effectively monitor changes in innovation and respond with appropriate reforms. …

The Illusory Eighth Amendment, John F. Stinneford

American University Law Review

No abstract provided.

The Forgotten Remedy: A Legal And Theoretical Defense Of Intermediate Scrutiny For Gender-Based Affirmative Action Programs, Ajmel Quereshi

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Critical Legal Histories In Eu Law, Fernanda G. Nicola

American University International Law Review

No abstract provided.

The Promise And Pitfalls Of Empiricism In Educational Equality Jurisprudence, Lia Epperson

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Widening Concept Of Parent In Canada: Step-Parents, Same-Sex Partners, & Parents By Art, Nicholas Bala, Christine Ashbourne

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Legislating Inclusion, Lia Epperson

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Politics Of Hate, Robert Tsai

Articles in Law Reviews & Other Academic Journals

This is a special issue dedicated to the topic of hate and political discourse. Collectively, the peer-reviewed articles in this volume are concerned with the political aspects of hatred, i.e., psychology, motivations, organization, tactics, and ends. The articles approach the problem from a variety of disciplines, including anthropology, history, law, literature, philosophy, political science, psychology, and sociology. Among the subjects analyzed: group hatred as a heritable trait; hate as an irrational system of thought; Italian fascism's construction of the Communist other; the rise of the English Defence League and its anti-Islam activities; the persistent myth of blood libel; judicial handling …

Using The Papers Of U.S. Supreme Court Justices: A Reflection, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

This essay examines the benefits and drawbacks of writing about the U.S. Supreme Court using the papers' of the Justices and how the work of Professor James F Simon highlights the benefits. The benefits are that the Justices' papers provide invaluable understanding of the Court's decisionmaking process, the influences that are significant, and how much substance actually matters. The papers shed light on why important legal doctrines developed in certain ways and what arguments held sway, identify rules that may be on thin ice in terms of underlying support, and show the nature of the working relationships among the Justices, …

Gazing Into The Future: The 100-Year Legacy Of Justice William J. Brennan, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

Introduction: How should Justice William J. Brennan, Jr., be remembered in 2056, one hundred years after he joined the United States Supreme Court, or in 2090, one hundred years after he left it? There is no set convention for how we evaluate the success or failure, the greatness or mediocrity, of our Supreme Court Justices. This is the case even in their lifetimes, let alone decades later. Yet there are some constants in Brennan's legendary judicial career that may guide the way to evaluating his legacy.

Women And Jurisprudence, Ma. Elodia Robles Sotomayor

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Notes On Borrowing And Convergence, Robert Tsai, Nelson Tebbe

Articles in Law Reviews & Other Academic Journals

his is a response to Jennifer E. Laurin, "Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence," 111 Colum. L. Rev. 670 (2011), which analyzes the Supreme Court's resort to tort-based concepts to limit the reach of the Fourth Amendment's exclusionary rule. We press three points. First, there are differences between a general and specific critique of constitutional borrowing. Second, the idea of convergence as a distinct phenomenon from borrowing has explanatory potential and should be further explored. Third, to the extent convergence occurs, it matters whether concerns of judicial administration or political reconstruction are driving doctrinal changes.

Advice And Consent Vs. Silence And Dissent? The Contrasting Roles Of The Legislature In U.S. And U.K. Judicial Appointments, Mary Clark

Articles in Law Reviews & Other Academic Journals

The Senate‘s role in judicial appointments has come under increasingly withering criticism for its uninformative and spectacle-like nature. At the same time, Britain has established two new judicial appointment processes - to accompany its new Supreme Court and existing lower courts - in which Parliament plays no role. This Article seeks to understand the reasons for the inclusion and exclusion of the legislature in the U.S. and U.K. judicial appointment processes adopted at the creation of their respective Supreme Courts.

The Article proceeds by highlighting the ideas and concerns motivating inclusion of the legislature in judicial appointments in the early …

“Bring[Ing] Our Enemies To Justice”: Terrorism And The Court, Anna Elazan

Legislation and Policy Brief

This article focuses on the venue of Mohammad’s trial and is broken into three sections. The first section reviews the historical use of military tribunals. This section begins by looking at the basis for Presidential authority to authorize the use of military commissions. This section then outlines the first use of military commissions since World War II. President George W. Bush’s authorization parallels the provisions in President Franklin Roosevelt’s authorization of the use of commissions in the 1940s. However, following authorization, the military commissions were subject to judicial challenges and significant revision by Congress. Finally, this section tracks recent developments …

Of State, Market And Justice: Latcritical Challenges To Theory, Praxis And Policy, Francisco Valdes

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Legal Paradigms: How Jurisprudence Affects Insider/Outsider Status Quo, Outsider Jurisprudence, And Transformative Directions., Guadalupe T. Luna

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Person In Law, The Number In Math: Improved Analysis Of The Subject As Foundation For A Noveau Régime , Orlando I. Martínez-García

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Inter-American System, Claudia Martin

Articles in Law Reviews & Other Academic Journals

No abstract provided.