Law Commons^™

Patent-Infringement Suits And The Right To A Jury Trial, H. Tomas Gomez-Arostegui, Sean Bottomley

American University Law Review

This Article analyzes whether the Seventh Amendment affords a right to a jury trial in suits in which the owner of a patent seeks only equitable relief against an accused infringer. The existence of jury rights carries important consequences for litigants. Like many issues involving application of the Constitution, the availability and scope of the right to a jury depends on eighteenth-century English legal history. Current doctrine holds that litigants in equity had no right to a jury in patent cases in England c.1791 and therefore that litigants today who seek only injunctive relief possess no such right either. But …

It Takes Two To Incorporate: The Role Of Patent Co-Ownership In Inventor Choice Of Business Form, Shawn P. Miller

American University Law Review

The literature on the theory of the firm and the reasons why entrepreneurs choose one type of business organization over another is massive. However, few empirical studies have been conducted to test the importance of the various proposed determinants of choice of legal form of organization in real-world industries. This paper helps fill that gap through an econometric investigation of the differences in the characteristics of two groups of independent inventors engaged in the business of patent monetization: inventors operating as sole proprietors and those operating through business organizations, almost always LLCs or close corporations.

The results suggest that commonly …

American University Law Review Keynote Address, Erwin Chemerinsky

American University Law Review

My talk this morning focuses on the agenda of the current Roberts Court. I think that every Supreme Court can be said to have an agenda. Sometimes it seems conscious and deliberate, apparent from the outset. Sometimes it seems to evolve and only becomes obvious later.

The Purcell Principle And The Antiblackness Of Constitutional Fundamentalism, Brittany Carter

American University Law Review

In Milligan v. Merrill, a district court in Alabama found that the state legislature designed Alabama’s new congressional district map in a way that diminished Black political power, and ordered the legislature to redraw its map to remedy the violation. Two weeks later, the Supreme Court stayed the district court’s order, allowing Alabama’s congressional elections to proceed under the discriminatory maps. The only stated rationale, offered by Justices Kavanaugh and Alito in a concurring opinion, was the so-called Purcell principle – the notion that federal courts should not enjoin a state’s election laws in the period close to an election. …

The Absurd Reach Of A "Colorblind" Constitution, David Hinojosa, Genevieve Bonadies Torres

American University Law Review

Affirmative action has long spurred debates over whether the Equal Protection Clause and subsequent civil rights legislation were intended to permit policies aimed at disrupting racial hierarchies, dismantling systemic discrimination, and ensuring equal opportunity for Black people and other historically marginalized groups. The current lawsuits pending before the Supreme Court challenging affirmative action admissions programs at the University of North Carolina at Chapel Hill (UNC) and Harvard College are no exception. Like prior lawsuits, the plaintiff in both cases—Students for Fair Admissions (“SFFA”)—and its amici seek to turn back the clock on racial diversity at selective universities by urging the …

Disability Reproductive Justice During Covid-19 And Beyond, Robyn M. Powell

American University Law Review

The United States is experiencing the convergence of two crises threatening the reproductive freedom of people with disabilities and other historically marginalized groups: the COVID-19 pandemic and a rising assault on reproductive rights, including the U.S. Supreme Court’s recent Dobbs v. Jackson Women’s Health Organization decision. This convergence has created a perfect storm, revealing the depth of existing reproductive injustices endured by disabled people and forcing a reckoning with the consequences of permitting such inequities to persist. As such, urgent attention by activists, scholars, legal professionals, and policymakers is necessary.

This Article proposes a vision for addressing the deeply entrenched …

When Amicus Curiae Briefs Are Inimicus Curiae Briefs: Amicus Curiae Briefs And The Bypassing Of Admissibility Standards, David Dematteo, Kellie Wiltsie

American University Law Review

Amicus curiae briefs are being submitted at historically high levels by a range of individuals and entities, and there is compelling evidence that these briefs are highly influential in judicial decision-making, including in the Supreme Court of the United States. Although amicus curiae briefs have been an ingrained aspect of the U.S. legal system for hundred-plus years, various legal scholars, researchers, commentators, and judges, including Supreme Court Justices, have raised concerns about their use, including that amicus curiae briefs contain redundant information and often function as advocacy tools. This Article addresses an aspect of amicus curiae briefs that has received …

Are Children's Rights Enough?, Clare Ryan

American University Law Review

Are parental rights or children’s rights better for protecting children and vindicating their interests? In this ongoing debate, American family law scholars and advocates are deeply divided. Children’s rights proponents often criticize the United States for failing to ratify the Convention on the Rights of the Child and for denying children constitutional family rights. This critique of U.S. family law assumes that incorporating children’s rights would result in better outcomes for children. This Article challenges the assumption that children’s rights are enough to vindicate children’s interests. Instead, this Article identifies how current conceptions of children’s rights present structural barriers to …

Deathly Delegation: Analyzing Mississippi's Execution Statute Under The Nondelegation Doctrine, Megan Meissner

American University Law Review

The nondelegation doctrine is a separation of powers principle that limits the legislative branch from delegating its legislative authority to another branch of government. Although this doctrine is more widely known for its federal use, preventing Congress from relinquishing too much of its law-making authority to administrative agencies, most states have adopted similar nondelegation principles. Mississippi’s nondelegation doctrine requires that the legislature enact laws that prescribe the basic policy decision, provide adequate boundaries for agency guidance, and do not vest an agency with arbitrary discretion.

On July 1, 2022, Mississippi enacted a new execution statute, permitting the Department of Corrections …

Decentralized Collaboration Through Private Ordering, Edward Lee

American University Law Review

This Article sets forth the theory of decentralized collaboration to explain how NFT projects coordinate business and creative collaborations in a decentralized manner through NFTs. Conducting an empirical study of the Top 25 NFT projects, this Article shows that a majority of the Top 25 NFT projects have employed a new, more innovative approach to creative production. Decentralized collaboration refers to the creative activities among unrelated actors who are involved in creating a shared content production project through a decentralized, asynchronous process open to the public. Utilizing a combination of smart contracts that create non-fungible tokens (NFTs) recorded on blockchain …

Regulating Organic, Sarah J. Morath

American University Law Review

Even highly regulated labels, such as the organic label, have the potential for greenwashing. As recently as January 2023, a grain seller was indicted in federal court for a $43 million scheme that involved the sale of non-organic grain as USDA-certified organic. But today’s organic market is also full of sellers who follow the current federal organic regulations but fail to demonstrate the spirit of the organic movement—forgoing soil, animal welfare, and community for profit. I call this nuanced form of greenwashing quasi-greenwashing. It arises when a business complies with a rule or standard but takes advantage of consumer misunderstanding …

A Contractual Relationship With Environmental Justice, Seema Kakade

American University Law Review

While corporations have long grappled with environmental issues, environmental justice is different. Corporations regularly manage compliance with environmental permits over a polluting facility’s long lifespan. Justice issues, however, are a fast-growing space for corporations as they wrestle with employee, government, customer, and public demands to step up for the communities that are directly impacted by the pollution their facilities produce. This Article explores the relationship between corporate polluters and impacted communities, with a focus on private-ordering tools like contracts. Such a focus enriches environmental justice law’s traditional focus on government decisionmakers, moving instead to corporate decision-making about where, how, and …

Calling The Shots: Multistate Challenges To Federal Vaccine Mandates, Elysa M. Dishman

Faculty Scholarship

Litigation brought by state attorneys general (AGs) successfully frustrated the Biden administration’s efforts to combat COVID-19 by vaccinating American workers. State challenges to vaccine mandates are consistent with trends in multistate litigation that have occurred in recent presidential administrations. At the same time, these cases reveal emerging new trends that shed light on the future of multistate public law litigation and nationwide injunctions. Challenges to vaccine mandates have raised ongoing criticisms of nationwide injunctions and offer a pathway forward for reform.

Contract Production In M&A Markets, Matthew C. Jennejohn, Stephen J. Choi, Mitu Gulati

Faculty Scholarship

Contract law scholarship has devoted considerable attention to understanding how contract terms are designed to properly incentivize parties to fulfill their obligations. Little attention, however, has been paid to the tradeoffs parties make between using widely used boilerplate terms and designing bespoke provisions. In thick markets such as those for corporate or sovereign bonds everyone uses the standard form despite the known drawbacks of boilerplate. But in thinner markets, such as the private deal M&A world, parties trade off costs and benefits of using standard provisions and customizing clauses to their needs. This Article reports on a case study of …

Smart Patents, Stephanie Plamondon

Faculty Scholarship

Intellectual property (IP) rights differ from traditional property rights in a crucial respect: the ascertainability of their boundaries. While it is usually a simple task to figure out where a traditional property right (e.g., an ownership right in a piece of land) begins and ends, delineating the metes and bounds of an IP right (e.g., a right to exclude others from practicing an invention as described in a patent claim) can be much more difficult to do.

The indeterminate scope of patent rights in particular leads to many layers of inefficiency. Downstream inventors may find it necessary to engage in …

"Attacking" Big Data: Strategic Competition, The Race For Ai, And The International Law Of Cyber Sabotage, Gary P. Corn, Eric Talbot Jensen

Faculty Scholarship

This chapter begins with a discussion of the national security threat that China’s AI development efforts pose, and the importance of big data to those efforts. It then moves to a review of potential cyber-enabled operations, particularly as applied to data, that could impede or thwart China’s AI development. The chapter then proceeds to a review of the international law implications of cyber sabotage, beginning with a discussion of the jus ad bellum and followed by a review of other relevant aspects of the international law of state responsibility such as the rule of prohibited intervention, principles of state sovereignty, …

"Accompanying The Force" In Modern Armed Conflict, Eric Talbot Jensen

Faculty Scholarship

Throughout history, non-military personnel have routinely accompanied fighting forces on the battlefield for purposes of providing their goods or services to the forces. The 1863 Lieber Code codified many rules concerning the interaction of the armed forces, but it also addressed civilians accompanying such professional forces, including both those “who are attached to the army for its efficiency and promote directly the object of the war” and those “citizens who accompany an army for whatever purpose, such as sutlers, editors, or reporters of journals, or contractors.”
Because of their proximity to the fight, it was inevitable that some of these …

Acknowledging (Celebrating? Regretting?) Sixty Years Of Subpart F, J. Clifton Clifton Fleming Jr.

Faculty Scholarship

Deferral of home-country tax on the income of foreign subsidiary corporations produces the twin evils of business and investment location distortion and profit shifting. In 1961, the Kennedy administration proposed the almost complete elimination of this type of deferral from the US income tax system. Because of strong opposition lobbying, the result was a political compromise commonly known as Subpart F. This article explains why Subpart F was largely a failure, in spite of its being copied to various degrees by the controlled foreign corporation (CFC) regimes of many developed
countries. The article also explores the extent to which the …

Frederick Douglass And The Original Originalists, Bradley Rebeiro

Faculty Scholarship

Constitutional scholars incessantly grapple over the significance of the Constitution’s original meaning. More specifically, they are preoccupied with, on the one hand, what that meaning is (if such meaning exists) and, on the other hand, the exact nature of that meaning’s authority (if any) over the Constitution and its interpreters. But this debate is hardly novel. In fact, one of the most compelling voices in U.S. history was immersed in similar debates and, out of the constitutional sparring of his time, forged an arresting theory of constitutional interpretation. Frederick Douglass, once a fierce opponent of the U.S. Constitution, evolved into …

A Tale Of Two Declarations, Bradley Rebeiro

Faculty Scholarship

No abstract provided.

Survey Of Recent Mandamus Decisions Of The Texas Supreme Court, Douglas S. Lang

SMU Annual Texas Survey

No abstract provided.

Partnership Law, Troy Christensen, Jeff Dorrill, Matthew Schindel, Madeline Ballard, James Barnett

SMU Annual Texas Survey

This Article describes and analyzes major developments in partnership law that occurred in Texas between December 1 and November 30 of 2022.

Family Law, Joanna L. Grossman, Christine P. Leatherberry

SMU Annual Texas Survey

More than 300,000 new family law cases were filed in Texas in 2022; more than a third of those were divorces (and there were more divorces in Texas than in any other state). Tens of thousands of children live in households that are involved in family court proceedings in any given year. Family law remains one of the areas with the greatest unmet legal need—more than half of litigants are pro se in cases with enormous stakes. The work of lawyers, judges, and other professionals in this area should not be underestimated. In this Article, we will try to lighten …

Civil Procedure: Pre-Trial & Trial, Amanda Sotak, Don Colleluori, Andrew C. Whitaker

SMU Annual Texas Survey

This Article identifies, categorizes, and analyzes the most impactful cases in the area of civil procedure decided by the Texas Supreme Court and the Texas Courts of Appeals during the Survey period.

Real Property, J. Richard White, Amanda Grainger

SMU Annual Texas Survey

This Article covers Real Property cases from Southwestern Reporter (Third) volumes 633 through 652 and federal cases during the Survey period that the authors believe are noteworthy to the jurisprudence on the applicable subject.

A number of significant cases, mostly from the Texas Supreme Court, have been handed down during this survey period. The due process requirements for the scope of inquiry for substituted service have been promulgated in MAP Resources. Additional procedural issues for service on financial institutions, which were decided differently by various state and federal courts, were resolved in Moss. The Texas Supreme Court provided helpful guidance …

Professional Liability, Josh Sherman, Abbie Baker

SMU Annual Texas Survey

This Article describes and analyzes major developments in professional liability law that occurred in Texas between December 1 and November 30 of 2022.

Wills & Trusts, Gerry W. Beyer

SMU Annual Texas Survey

This article discusses developments relating to the Texas law of intestacy, wills, estate administration, trusts, and other estate planning matters during the Survey period of December 1, 2021, through November 30, 2022. The reader is warned that not all cases decided during the Survey period are presented, and not all aspects of each case are analyzed. You must read and study each case’s full text before relying on it or using it as precedent. The discussion of most cases includes a moral, that is, the important lesson to be learned from the case. By recognizing situations that resulted in time-consuming …

Command And Control: Operationalizing The Unitary Executive, Gary Lawson

Fordham Law Review

The concept of the unitary executive is written into the Constitution by virtue of Article II’s vesting of the “executive Power” in the President and not in executive officers created by Congress. Defenders and opponents alike of the “unitary executive” often equate the idea of presidential control of executive action with the power to remove executive personnel. But an unlimitable presidential removal power cannot be derived from the vesting of executive power in the President for the simple reason that it would not actually result in full presidential control of executive action, as the actions of now-fired subordinates would still …

Bastions Of Independence Or Shields Of Misconduct?: Increasing Transparency In Judicial Conduct Commissions, Katarina Herring-Trott

Fordham Law Review

No abstract provided.

Clean Vehicles Tax Credits Under The Us Inflation Reduction Act: Friend-Shoring Takes Centre Stage In Us Policy, J. Anthony Vanduzer

Indian Journal of International Economic Law

The international market has recently faced significant disruptions owing to major geo-political events such as the Covid-19 Pandemic and the Russia-Ukraine War, resulting in unreliable and erratic global supply chains. In a bid to create and secure more sustainable supply networks, countries have adopted ‘friend-shoring’ policies, encouraging their enterprises to source supplies from friendly or allied nations. While the primary objective of these policies is to stabilize global supply chains, these initiatives also stem from a desire to reduce reliance on countries that pose a threat to the geopolitical order.

Although tailored as a market-based strategy, these friend- shoring policies, …