Law Commons^™

No-Hire Rulings Forget Competition, Val Ricks

American University Law Review

Two recent and noted antitrust rulings on the legality of no-hire (or “no-poach”) agreements paid lip service to preserving and promoting competition for employees but in the end failed to apply competition as a standard. Instead—and this is seen only deep in the weeds of the decisions themselves, on careful reading—judges demanded that no-hire agreements be held illegal only when they constitute abuse of market power, more or less. These decisions impliedly distinguish horizontal agreements not to compete for employees from horizontal agreements not to compete for customers, or on price. The opinions tend to “require careful economic analysis” of …

Erie And Enforceability Of Forum Selection Clauses, Patrick Woolley

American University Law Review

Whether and to what extent state law governs the contractual validity of forum selection clauses in federal court remains highly contested. This Article argues for a two-part answer.

State law should govern whenever a party seeks a § 1404(a) transfer of venue within the federal judicial system. The Court has insisted that the choice-of-law rules of the state to which the suit is transferred govern when transfer is required by a contractually valid clause. That insistence accords with the Erie policy of vertical uniformity between state and federal courts only if the law of the state in which the transferring …

Scientific Educations Among U.S. Judges, Christa J. Laser

American University Law Review

Should more judges have technical and scientific educations than are currently prevalent in the federal judiciary? This empirical study of the educational background of federal judges reports the undergraduate and graduate majors of active U.S. federal Article III judges. Information on the subject area of study is largely not publicly available, especially for judges appointed decades ago. This is the first and only publicly available research study of the subject areas of study of U.S. judges, collected via phone and email surveys to U.S. judges. The results of this study show that only 7.35% of federal judges have majors in …

Fixing Double Patenting, Mark A. Lemley, Lisa Ouellette

American University Law Review

The U.S. patent doctrine of "double patenting" allows an inventor to obtain many patents on obvious variants of the same invention as long as they file a "terminal disclaimer" agreeing that all of these patents will expire simultaneously. Two recent limitations on double patenting practice have led

to vigorous protest from the patent bar. First, the Federal Circuit held in In re Cellect that patents tied by double patenting must expire on the same day, even if one of the patents has received a patent term adjustment giving it a more-than-twenty-year term. Second, the USPTO proposed a rule (since withdrawn) …

Letter From The Editor, Peter T. Sabini

American University Law Review

No abstract provided.

Unconstitutionil: Name, Image, And Likeness State Laws In The Postamateurism World Of College Sports, Bryan Dearinger

American University Law Review

College sports stands at its biggest inflection point in a century. Amateurism is almost dead, and the ability to benefit from their name, image, and likeness (NIL) is here to stay. Scholars, lawyers, and policymakers are quick to congratulate state legislatures, criticize the National Collegiate Athletic Association (NCAA), and propose blueprints for Congress to fix the NIL regime in college athletics. But the incentives for dismantling the old regime are not shared between schools and the NCAA, so nothing happens. A collective action problem exists in the NIL space. Using a commons dilemma lens, this Article argues why NIL laws …

Best Kept Secret: The Hidden Health Costs Of Corporate Confidentiality, Cynthia M. Ho

American University Law Review

Although patents are well known to negatively impact health when drugs are unaffordable, trade secrets also harm health, and in more ways than patents. Patented drugs harm public health simply by temporarily increasing prices on treatments. Trade secrets, on the other hand, can not only increase treatment costs, but also hide knowledge needed for effective medical treatment. Also, because patents, but not trade secrets, have a limited term, patent health harms clearly terminate while trade secret harms do not. Moreover, the public may not even be fully aware of all trade secret health harms because trade secret information is, by …

Uncorking The Twenty-First Amendment: A Spirited Exception To Distill The Dormant Commerce Clause, Lars Emerson

American University Law Review

Few goods have played as potent a role in shaping constitutional doctrine as alcohol. By repealing national Prohibition and granting states sweeping authority to regulate intoxicating liquors within their borders, the Twenty-first Amendment carved out a singular exception in American constitutional law—one that has long stood in tension with the Dormant Commerce Clause (“DCC”), which prohibits states from discriminating against interstate commerce.

This Note surveys the constitutional landscape created by the Twentyfirst Amendment, beginning with a historical overview of DCC jurisprudence, the Prohibition era, and the legislative history of the Twenty-first Amendment. The analysis then focuses on the uneasy constitutional …

Still Here: Reflections After Fifty Years Of Teaching Law, Ira P. Robbins

American University Law Review

No abstract provided.

The Right To Acquire Property, John G. Sprankling

American University Law Review

Can government prohibit the acquisition of all types of property? The intuitive answer to this question is “no.” But why? Is there a constitutional right to acquire property? And, if so, how does it apply if government merely prohibits acquisition of a certain type of property, such as contraceptives?

The Fourth, Fifth, and Fourteenth Amendments restrict when property may be “taken” or “seized” and when a person may be “deprived” of property. Thousands of law review articles and hundreds of books have analyzed the scope of these provisions. But almost no modern attention has been devoted to their logical counterpart—the …

The Paradox Of Continuing Risk, W. Jonathan Cardi, Ashton Jenne, Chance Villarreal

American University Law Review

The continuing-risk rule is ubiquitously cited by Restatements, casebooks, and treatises as a core duty rule in negligence cases. Indeed, as this Article reveals, the rule has been “adopted”—in the sense that at least one court in a jurisdiction has applied the rule, and no court has rejected it—in thirty-one jurisdictions. In addition to the breadth of its adoption, the continuing-risk rule is also far-reaching: it imposes an affirmative duty to warn, protect, or rescue another from a risk if the defendant’s conduct contributed to the initial creation of that risk. Because most negligence cases involve risk-creating conduct by the …

The Warrant Exception That Isn't Fisa Section 702, "Defensive" Searches, And The Fourth Amendment, Noah C. Chauvin

American University Law Review

Section 702 of the Foreign Intelligence Surveillance Act allows the government to conduct warrantless electronic surveillance of non-Americans who are located overseas. Although the surveillance targets foreigners, Americans’ communications are “incidentally” collected, too. Once the government has acquired Americans’ communications, court-approved rules allow it to conduct warrantless searches for and through them in its Section 702 databases. Intelligence agencies have used these rules to turn this foreign intelligence program into a domestic spying tool, conducting tens of thousands of warrantless “backdoor” searches for Americans’ private communications obtained under Section 702 every year.

Section 702 periodically sunsets; Congress most recently reauthorized …

Personal Jurisdiction’S Aberrant Theory Of Consent, Roger Michalski

American University Law Review

Consent has been a pillar of personal jurisdiction doctrine at least since Pennoyer. The Supreme Court recently strengthened this pillar by deeming a corporate registration statute to constitute consent. Consent to submit to a court’s adjudicatory power can now be unintentional, based on inaction, is irrevocable, does not have to be informed, is all-or-nothing, and is blind to power inequalities. Failing to say “no” at the right time in the right way means “yes.”

Such a theory of consent clashes with what consent means elsewhere. In other contexts, we are reminded that “no means no,” the “absence of no does …

The Software Inducement Paradox, Dylan Niederland

American University Law Review

Induced patent infringement allows a third party to be held liable for another’s direct infringement of a patent. For many years, inducement liability has been a hotly contested doctrine of patent law, specifically its applications in the pharmaceutical industry. Not unsurprisingly, vast literature exists covering the intersection of inducement liability and pharmaceuticals.

This Note takes a new approach, analyzing inducement liability as it relates to the software industry. Specifically, this Note criticizes the Federal Circuit’s holding in GlaxoSmithKline LLC v. Teva Pharmaceuticals USA, Inc. that a simple statement of equivalence is sufficient to induce users to infringe method-of-use patents that …

Desain Dan Konstitusionalitas Penerapan Pilkada Asimetris Di Indonesia, Lalu Aria Nata Kusuma

Jurnal Hukum & Pembangunan

The idea of implementing asymmetric regional elections (Pilkada) in Indonesia is not a new concept. However, to date, there has been no effort to provide a design for the implementation of Pilkada in an asymmetric manner, considering the specific needs of each region and its alignment with the 1945 Constitution. This article aims to implement Pilkada in an asymmetric manner by first mapping the asymmetry models of each region based on their specific needs. This research uses a doctrinal and socio-legal approach. The results of this research indicate a need to implement Pilkada asymmetrically in Indonesia. This urgency arises due …

Pengakuan Hak Masyarakat Adat Dalam Hukum Pengelolaan Sumber Daya Alam: Studi Perbandingan Indonesia–Australia, Farid Al Hadana, Sukarman Sukarman, Farhan Margono, Hamzah Hamzah

Jurnal Hukum & Pembangunan

Meskipun terdapat pengakuan konstitusional di Indonesia dan Australia, hak-hak masyarakat adat dalam tata kelola sumber daya alam masih lemah perlindungannya, terutama karena kerangka kerja Indonesia yang terfragmentasi dan tersentralisasi gagal mewujudkan keadilan lingkungan. Makalah ini membandingkan rezim hukum Indonesia dan Australia terkait tata kelola lahan dan sumber daya masyarakat adat untuk mengidentifikasi bagaimana pengakuan dapat diubah menjadi hak yang dapat ditegakkan dan untuk merumuskan model reformasi yang berorientasi pada keadilan bagi Indonesia. Dengan menggunakan analisis hukum komparatif kualitatif, makalah ini menggabungkan observasi doktrinal terhadap yurisprudensi konstitusional, peraturan-undangan, dan yurisprudensi dengan pemeriksaan dokumen kebijakan dan konflik ilustratif yang melibatkan wilayah masyarakat …

Digital Constitutionalism: Resistensi Kebebasan Berpendapat Di Indonesia Dalam Hegemoni Algoritma Ruang Digital, Yuniar Prehatini, Linda Noviana Mita Devi

Jurnal Hukum & Pembangunan

Era digital membawa transformasi dalam segala aspek kehidupan. Perkembangan teknologi menghadirkan perkembangan zaman pada sisi positif dan negatif dimana penggunaan ruang digital yang dapat diakses tanpa batasan wilayah. Kebebasan diartikan melalui teknologi dengan adanya akses ruang digital memberikan kemudahan akses kepada siapa pun. Melalui algoritma digital, segala hal baik dari aspek budaya, politik, maupun ekonomi dapat diketahui sehingga hal ini juga dapat menimbulkan keresahan apabila tidak diatur batasan akan keberadaannya. Penelitian ini menggunakan penelitian normatif yang fokus pada analisis terhadap norma, asas, doktrin, dan teori hukum yang berkaitan dengan perlindungan hak asasi manusia di ruang digital. Hasil penulisan ini menunjukkan …

The Scope Of The Prior Art, John R. Thomas

Georgetown Law Faculty Publications and Other Works

The courts and the U.S. Patent and Trademark Office (“USPTO”) assess whether an invention may be patented by comparing it to the state of the art, which the patent community terms the “prior art.” Heavily influenced by Oliver Wendell Holmes Jr. and Learned Hand, and more recently expanded by the America Invents Act, the Patent Act features the broadest definition of prior art in U.S. history. No matter how remote, evanescent, or obscure, any activity or publication that occurs one day before the inventor files a patent application—anywhere in the world—may prove patent-defeating.

The government also holds patent proprietors accountable …

Pozen And The Puzzle Of Counterfactuals, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

The Constitution and the War on Drugs, David Pozen’s carefully researched and brilliantly argued book, is both illuminating and disturbing: illuminating because it unearths forgotten moments when judicially formulated constitutional doctrine that could have ended or sharply restricted the War on Drugs were well within the Overton Window, and disturbing because it surfaces hard questions about historical contingency and the scope of the change that might have occurred in a counterfactual world. In this review, the author argues that the failure to specify both the nature of the counterfactual and the breadth of the alternative possibility have confused discussions …

The Administrative State's Second Face, Emily R. Chertoff, Jessica Bulman-Pozen

Georgetown Law Faculty Publications and Other Works

We often assume that there is one administrative state, with one body of administrative law that governs it. In fact, the administrative state has two distinct faces: one turned toward regulation and benefits distribution, and one turned toward physical force and surveillance. The two faces are growing further apart under the Roberts Court, which has hemmed in the first face with decisions like Loper Bright while showing solicitude for national security and law enforcement agencies.

This Article delineates the two faces of the administrative state. It provides a descriptive account of the second face and the distinctive administrative law that …

Asking The Right Questions About Legal Finance In United States Aggregate Dispute Resolution, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

Third-party legal finance is one of the most controversial modern developments in civil justice, both in the United States and across the globe. It is particularly controversial when mentioned in the same breath as aggregate litigation. Current debate trains on a series of repeated questions: whether and how to ban litigation finance in aggregate litigation; whether the use of litigation finance should be disclosed in discovery; and whether litigation finance is allowed under various (and often ancient) legal doctrines. Obscured from view is what I believe to be the most fundamental question: What is the proper role of litigation finance …

Patent Infringement In Time, John R. Thomas

Georgetown Law Faculty Publications and Other Works

No patent lasts forever. When intellectual property rights expire, a canonical principle states, all benefits of their ownership cease. But patents may cast a long shadow after they are gone, hindering the advent of immediate competition upon their expiration. The law acts unevenly in these circumstances, leading to questionable intellectual property and public health policies. Ordinarily competitors cannot make and use a patented invention until the patent's term has concluded. This delay ordinarily extends the effective period of exclusivity that the patentee enjoys. However, a statutory safe harbor shields from infringement acts undertaken "solely for uses reasonably related" to Food …

Pave Outer Space And Put Up A Parking Lot: Lagrange Points Should Be The Common Heritage Of Mankind, David A. Koplow

Georgetown Law Faculty Publications and Other Works

Outer space offers a vast array of opportunities, with different locations or regions available for exploitation by diverse users for a growing variety of satellite functions. But not all sectors of space are equally valuable for all applications, and the most desirable venues can become crowded, affording a premium for those who gain access first and impeding the development of a fair and efficient all-inclusive international legal regime.

This article focuses on Lagrange points, a finite series of special locations in space where the gravitational forces from a pair of large celestial bodies interact in unusual ways. These points afford …

Does The Original Meaning Of The Fourteenth Amendment Protect Economic Liberty?, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In my remarks today, I will defend the proposition that the original meaning of the Fourteenth Amendment protects "economic liberty." To clarify the issue, let me being by defining economic liberty. I define economic liberty as the right to acquire, use and possess private property and the right to enter into private contracts of one's choosing. If these rights are protected by the original meaning of the Fourteenth Amendment, then we can conclude that the Amendment does protect economic liberty.

In my view, the evidence that the original meaning Fourteenth Amendment protects rights of private property and contract is overwhelming. …

Georgetown University Law Library, Georgetown University Law Center, Austin Martin Williams

Georgetown Law Faculty Publications and Other Works

The story of the Georgetown University Law Library (Law Library) is one of exceptional growth, innovation, and change throughout its more than 100 years in existence. While the Law Library's history is rich in detail, it cannot be fully told without exploring the history of both the Georgetown University Law Center (Law Center) and Georgetown University (University).

"We Can't Allow Iot Vendors To Pass Off All Such Liability To The Consumer": Investigating The U.S. Legal Perspectives On Liability For Iot Product Security, Prianka Mandal, Amit Seal Ami, Iria Giuffrida, Daniel Shin, Ella Sullivan, Adwait Nadkarni

Faculty Publications

As the regulatory landscape for the Internet of Things (IoT) evolves, vendors are moving towards certifying their products for security. Thus, we need to understand who is liable when certification failures result in harm, i.e., when certified products have vulnerabilities that are exploited to cause harm to users. This paper addresses the fundamental and timely question that has significant implications for vulnerability detection in certified products: who is liable for harm resulting from vulnerabilities in certified products, and who should be so liable? Through a qualitative analysis of contractual documents from 20 IoT vendors, this paper investigates how liability is …

The Faster Horse Fallacy: How The Law Idealizes Technology, Youngsieg P. Kim

Hofstra Law Faculty Scholarship

How does the legal profession understand new technology? Lawyers are involuntary experts in technology: we are not professionally trained in technology like engineers are but must know technology better than the typical citizen does, because the law must regulate how the typical citizen that is, society uses technology. The increasing complexity and variety of technologies that affect everyday life, such as artificial intelligence (AI), make our jobs as involuntary experts in technology all the more important. To prepare lawyers to regulate technology effectively, we must first examine how lawyers understand (or misunderstand) technology in the present. This Article examines a …

The Supreme Court’S Specious Code Of Conduct, James J. Sample

Hofstra Law Faculty Scholarship

Congressionally imposed ethics enforcement would enhance the Supreme Court's exercise of constitutional powers by reducing the interference of improper personal motives during its factual and legal determinations. The Court has long recognized the self-evident truth that "no man can be a judge in his own case." The Framers recognized the limits inherent in human nature: humans are not angels. Accordingly, the Constitutional scheme of separated powers, as elucidated by Madison, "[does] not mean that these departments ought to have no partial agency in, or no control over, the acts of each other." Congress rightly has the constitutional means and motive …

Should Ptin Omissions Be Criminalized?, Linda Galler, Jay A. Soled

Hofstra Law Faculty Scholarship

Linda Galler is the Max Schmertz Distinguished Professor of Law at the Maurice A. Deane School of Law at Hofstra University, and Jay A. Soled is a distinguished professor of taxation at Rutgers Business School.

In this article, Galler and Soled examine a recent legislation discussion draft that would increase penalties on return preparers who omit their identification numbers from tax returns or refund claims, and they reach different conclusions on whether Congress should criminalize those failures.

Uncharitable Think Tanks, Faith Stevelman

FIU Law Review

As people debate whether the Heritage Foundation’s Project 2025 is good policy, what’s being overlooked is that it’s likely unlawful as the work product of a charitable think tank. (Think tanks nearly always are qualified as charities under the tax code.) To reinforce think tanks’ educational mission, tax law sets rigorous content requirements for their materials. It also bans them from campaigning, sharply limits their lobbying, and prohibits their benefiting private parties. The doctrines are intended to keep think tanks charity-worthy educators, but they have not succeeded.

Ironically, the failure reflects other features of tax law that incentivize using think …