Congress As A Catalyst Of Patent Reform At The Federal Circuit,
2014
American University Washington College of Law
Congress As A Catalyst Of Patent Reform At The Federal Circuit, Jonas Anderson
Scholarly Articles in Law Reviews & 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. …
Measuring Circuit Splits: A Cautionary Note,
2014
William & Mary Law School
Measuring Circuit Splits: A Cautionary Note, Aaron-Andrew P. Bruhl
Faculty Publications
A number of researchers have recently published new measures of the Supreme Court’s behavior in resolving conflicts in the lower courts. These new measures represent an improvement over prior, cruder approaches, but it turns out that measuring the Court’s resolutions of conflicts is surprisingly difficult. The aim of this methodological comment is to describe those difficulties and to establish several conclusions that follow from them. First, the new measures of the Court’s behavior are certainly imprecise and may reflect biased samples. Second, using the Supreme Court Database, which some studies rely on to assemble a dataset of cases resolving conflicts, …
The Story Of Chevron: The Making Of An Accidental Landmark,
2014
Columbia Law School
The Story Of Chevron: The Making Of An Accidental Landmark, Thomas W. Merrill
Faculty Scholarship
Chevron U.S.A. Inc. v. NRDC is one of the most famous cases in administrative law, but it was not regarded that way when it was decided. To the justices who heard the case, Chevron was a controversy about the validity of the "bubble" concept under the Clean Air Act, not about the standard of review of agency interpretations of statutes. Drawing on Justice Blackmun's papers, Professor Merrill shows that the Court was initially closely divided, but Justice Stevens' opinion won them over, with no one paying much attention to his innovations in the formulation of the standard of review or …
Step Zero After City Of Arlington,
2014
Columbia Law School
Step Zero After City Of Arlington, Thomas W. Merrill
Faculty Scholarship
The thirty-year history of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. is a story of triumph in the courts and frustration on the part of administrative law scholars. Chevron's appeal for the courts rests in significant part on its ease of application as a decisional device. Questions about the validity of an agency's interpretation of a statute are reduced to two inquiries: whether the statute itself provides a clear answer and, if not, whether the agency's answer is a reasonable one. The framework can be applied to virtually any statutory interpretation question resolved by an agency, and …
Correcting Criminal Justice Through Collective Experience Rigorously Examined,
2014
Columbia Law School
Correcting Criminal Justice Through Collective Experience Rigorously Examined, James S. Liebman, David Mattern
Faculty Scholarship
Federal and state law confers broad discretion on courts to administer the criminal laws, impose powerful penalties, and leave serious criminal behavior unpunished. Each time an appellate court reviews a criminal verdict, it performs an important systemic function of regulating the exercise of that power. Trial courts do the same when, for example, they admit or exclude evidence generated by government investigators. For decades, judicial decisions of this sort have been guided by case law made during the Supreme Court's Criminal Procedure Revolution of the 1960s and 1970s. It is becoming increasingly clear, however, that the rule-bound, essentially bureaucratic regulatory …
Trusting The Courts: Redressing The State Court Funding Crisis,
2014
Columbia Law School
Trusting The Courts: Redressing The State Court Funding Crisis, Michael J. Graetz
Faculty Scholarship
In recent years, state courts have suffered serious funding reductions that have threatened their ability to resolve criminal and civil cases in a timely fashion. Proposals for addressing this state court funding crisis have emphasized public education and the creation of coalitions to influence state legislatures. These strategies are unlikely to succeed, however, and new institutional arrangements are necessary. Dedicated state trust funds using specific state revenue sources to fund courts offer the most promise for adequate and stable state court funding.
The Judiciary And Fiscal Crises: An Institutional Critique,
2014
Columbia Law School
The Judiciary And Fiscal Crises: An Institutional Critique, Peter Conti-Brown, Ronald J. Gilson
Faculty Scholarship
Scholars have long debated the role for courts with respect to governmental action that responds to crisis. Most of the crises analyzed, however, are exogenous to the political process; the courts’ role in response to politically endogenous crises has received less attention. We evaluate the role of the judiciary in a subset of those endogenous crises: the judicial treatment of governmental efforts to resolve the crisis facing underfunded public pensions. Assessing institutional competence schematically with reference to an institution’s democratic accountability and fact-finding ability, we argue that, where institutions function properly, judicial intervention in politically endogenous economic crises should be …
Is The Foreign Intelligence Surveillance Court Really A Rubber Stamp? Ex Parte Proceedings And The Fisc Win Rate,
2014
Washington University in St. Louis School of Law
Is The Foreign Intelligence Surveillance Court Really A Rubber Stamp? Ex Parte Proceedings And The Fisc Win Rate, Conor Clarke
Scholarship@WashULaw
One of the most common criticisms of the Foreign Intelligence Surveillance Court is that the court has approved more than 99% of the government’s 33,000 ex parte surveillance requests, a fact cited as extraordinary evidence that the court is nothing more than a rubber stamp. This Essay disputes that popular criticism in two ways. First, I argue that there are good reasons to expect ex parte processes to produce lopsided results, since the government selects applications based in part on the level of oversight the court applies – just as, in most other legal contexts, ‘the decision to litigate’ depends …
Filling The District Of Arizona Vacancies,
2014
University of Richmond
Filling The District Of Arizona Vacancies, Carl W. Tobias
Law Faculty Publications
The judicial vacancy crisis must end. The federal bench has experienced nearly a ten percent vacancy rate over an unprecedented four and a half-year period. The substantial number and protracted character of those openings have imposed numerous detrimental effects. These phenomena have delayed the scheduling of jury trials in many civil cases and even propelled termination of some litigation because the Speedy Trial Act requires that criminal matters have precedence. Indeed, the emergency designation has meant that some criminal proceedings were delayed in the Arizona District. The vacancy crisis places additional pressure on sitting judges, particularly the eight senior judges …
The Cost Of Judicial Error: Stare Decisis And The Role Of Normative Theory,
2014
University of Richmond
The Cost Of Judicial Error: Stare Decisis And The Role Of Normative Theory, Kurt T. Lash
Law Faculty Publications
The Supreme Court of the United States has long embraced the doctrine of stare decisis as an appropriate consideration any time the Court considers overruling past precedent. However, because the Court's actual application of the doctrine has been both sporadic and seemingly inconsistent, some scholars (and Justices) have accused the Court of methodological hypocrisy and bad faith. Much of this criticism assumes that, if members of the Supreme Court find certain rule of law values dispositive in one case, they should find those same considerations dispositive in all cases. Failure to do so suggests either incompetence or insincerity. This Article …
Procaps S.A. V. Patheon Inc.: Videotaped Deposition Transcript,
2013
American University Washington College of Law
Procaps S.A. V. Patheon Inc.: Videotaped Deposition Transcript, Jonathan Baker
Legislative Testimony & Comments
No abstract provided.
Interactive Methods And Collaborative Performance: A New Future For Indirect Infringement,
2013
University of Michigan Law School
Interactive Methods And Collaborative Performance: A New Future For Indirect Infringement, Josh Rychlinski
Michigan Telecommunications & Technology Law Review
An individual is liable for patent infringement if he infringes one or more patented claims either directly under 35 U.S.C. § 271(a) or indirectly under 35 U.S.C. § 271(b) or § 271(c). In 2012, the Federal Circuit clarified its interpretation of § 271(b) and § 271(c) in the case of Akamai v. Limelight. However, the court failed to address issues of “divided” direct infringement, where two or more entities combine and together complete each and every step of a method claim, but no single entity does all of the steps. This Note walks through the history of the judicial interpretation …
At What Is The Supreme Court Comparatively Advantaged?,
2013
Indiana University School of Law
At What Is The Supreme Court Comparatively Advantaged?, R. George Wright
West Virginia Law Review
No abstract provided.
Friendship Treaties ≠ Judgment Treaties,
2013
University of North Carolina School of Law
Friendship Treaties ≠ Judgment Treaties, John F. Coyle
Michigan Law Review First Impressions
It is hornbook law that the United States is not currently a party to any treaty governing the enforcement of foreign judgments. At least, it was hornbook law until 1993. In that year, the U.S. Court of Appeals for the Eleventh Circuit adopted a novel interpretation of a provision in a bilateral treaty of friendship, commerce, and navigation ("FCN treaty") between the United States and Greece that transformed the treaty into a de facto judgments treaty. Two years later, in 1995, the Third Circuit adopted the same interpretation of an identical clause in the United States-Korea FCN treaty. Each of …
Getting Down To (Tattoo) Business: Copyright Norms And Speech Protections For Tattooing,
2013
University of Michigan Law School
Getting Down To (Tattoo) Business: Copyright Norms And Speech Protections For Tattooing, Alexa L. Nickow
Michigan Telecommunications & Technology Law Review
What level of First Amendment protection should we afford tattooing? General public consensus formerly condemned tattoos as barbaric, but the increasingly diverse clientele of tattoo shops suggests that tattoos have become more mainstream. However, the law has struggled to adjust. The recent proliferation of municipal near-bans on tattooing has brought tattooing to the forefront of First Amendment debates, with cases such as Anderson and Coleman leading the way toward recognizing tattooing as pure speech. Tensions between formal and informal copyright norms in the tattoo industry further highlight the collaborative and expressive nature of the artist-customer relationship and its resulting products, …
The Value Of Precedent : Appellate Briefs And Judicial Opinions In The U.S. Courts Of Appeals.,
2013
University of Louisville
The Value Of Precedent : Appellate Briefs And Judicial Opinions In The U.S. Courts Of Appeals., Laura P. Moyer, Todd A. Collins, Susan B. Haire
Faculty and Staff Scholarship
This study of appellate advocacy examines factors that affect judicial treatment of precedents identified in litigant briefs. Although we find some attorney and party characteristics influence whether a court addresses precedent cited by a party, legal resources are not as influential in determining whether the court adopts a party’s use of a precedent. At times, ideological congruence between the circuit panel and the litigant can increase the likelihood that the court’s opinion will use a precedent in the same way as presented by the litigants. There is also some support for the importance of attorney experience. Even when their clients …
Factual Precedents,
2013
William & Mary Law School
Factual Precedents, Allison Orr Larsen
Faculty Publications
Lawyers and judges speak to each other in a language of precedents—decisions from cases that have come before. The most persuasive precedent to cite, of course, is an on-point decision of the U.S. Supreme Court. But Supreme Court opinions are changing. They contain more factual claims about the world than ever before, and those claims are now rich with empirical data. This Supreme Court factfinding is also highly accessible; fast digital research leads directly to factual language in old cases that is perfect for arguments in new ones. An unacknowledged consequence of all this is the rise of what I …
An Insurmountable Obstacle: Denying Deference To The Bia’S Social Visibility Requirement,
2013
University of Michigan Law School
An Insurmountable Obstacle: Denying Deference To The Bia’S Social Visibility Requirement, Kathleen Kersh
Michigan Journal of Race and Law
In the last fifteen years, the Board of Immigration Appeals has imposed a requirement that persons seeking asylum based on membership in a particular social group must establish that the social group is “socially visible” throughout society. This Comment argues that the social visibility requirement should be denied administrative deference on several grounds. The requirement should be denied Chevron deference because Congress’s intent behind the Refugee Act of 1980 is clear and unambiguous and, alternatively, the requirement is an impermissible interpretation of the statute. The requirement is also arbitrary and capricious under the Administrative Procedures Act. This Comment argues that …
Engaging Men As Fathers: The Courts, The Law, And Father-Absence In Low-Income Families,
2013
George Washington University Law School
Engaging Men As Fathers: The Courts, The Law, And Father-Absence In Low-Income Families, Laurie S. Kohn
Cardozo Law Review
No abstract provided.
The Rise And Fall Of The Unwritten Law: Sex, Patriarchy, And Vigilante Justice In The American Courts,
2013
Stanford University
The Rise And Fall Of The Unwritten Law: Sex, Patriarchy, And Vigilante Justice In The American Courts, Lawrence M. Friedman, William E. Havemann
Buffalo Law Review
No abstract provided.
