Patent
law, as the Constitution requires, is supposed “[t]o promote the Progress of
Science and useful Arts.” Yet today,
certain aspects of patent law instead promote gambling -- the playing of games
of chance for money (the exact opposite of science and useful arts). This article begins by closely examining how
current law allows third party litigation financers
to convert the unproductive patents of “trolls” into chips and to turn the
patent litigation system into a house casino.
It then proceeds to discuss why such third party litigation financers,
especially as they operate in the patent litigation system, should be regulated
as the gamblers they are, operating at public expense.
Wednesday, May 10, 2023
Disclosing High Roller Bankrolling in the Patent Litigation Casino: The Need to Regulate Third Party Litigation Financing
Friday, June 22, 2012
The Federalist Papers, the Commerce Clause, and Federal Tort Reform
The Federalist Papers, the Commerce Clause, and Federal Tort Reform
45 SUFFOLK U. L. REV. 357 (2012)
In the modern era, Congress has enacted many federal “tort reform” statutes that supersede contrary state laws, and judicial precedents leave little doubt as to their constitutionality. Still, some question the appropriate constitutional role of Congress in enacting federal tort reform. This article explores the support for federal tort reform found in the constitutional principles articulated by James Madison, Alexander Hamilton, and other leading founding figures, with particular emphasis on the Federalist Papers.
45 SUFFOLK U. L. REV. 357 (2012)
In the modern era, Congress has enacted many federal “tort reform” statutes that supersede contrary state laws, and judicial precedents leave little doubt as to their constitutionality. Still, some question the appropriate constitutional role of Congress in enacting federal tort reform. This article explores the support for federal tort reform found in the constitutional principles articulated by James Madison, Alexander Hamilton, and other leading founding figures, with particular emphasis on the Federalist Papers.
Congress' Power to Regulate the Federal Judiciary: What the First Congress and the First Federal Courts Can Teach Today's Congress and Courts
Congress' Power to Regulate the Federal Judiciary: What the First Congress and the First Federal Courts Can Teach Today's Congress and Courts
37 PEPP. L. REV. 847 (2010)
This article explores what the First Congress, speaking through three foundational pieces of enacted legislation -- the Judiciary Act of 1789, the Process Act of 1789, and the Crimes Act of 1790 -- had to say about the full extent of Congress’s power over the federal judiciary, and what today’s Congress and federal courts can learn from that understanding. It also explores how the legislation passed by the First Congress reflects the traditional understanding of the deference federal courts should give to the acts of the legislatures, a deference that should give way only when such acts are clearly unconstitutional. Finally, this article explores how the modern Supreme Court’s deviation from that traditional understanding threatens its popular legitimacy today.
37 PEPP. L. REV. 847 (2010)
This article explores what the First Congress, speaking through three foundational pieces of enacted legislation -- the Judiciary Act of 1789, the Process Act of 1789, and the Crimes Act of 1790 -- had to say about the full extent of Congress’s power over the federal judiciary, and what today’s Congress and federal courts can learn from that understanding. It also explores how the legislation passed by the First Congress reflects the traditional understanding of the deference federal courts should give to the acts of the legislatures, a deference that should give way only when such acts are clearly unconstitutional. Finally, this article explores how the modern Supreme Court’s deviation from that traditional understanding threatens its popular legitimacy today.
The Risks Posed to National Security and Other Programs by Proposals to Authorize Private Disparate Impact Claims Under Title VI
The Risks Posed to National Security and Other Programs by Proposals to Authorize Private Disparate Impact Claims Under Title VI
46 HARV. J. ON LEGIS. 57 (2009)
This article begins by summarizing the evolution of disparate impact discrimination as a legal claim. It analyzes the national security exception to such claims in the employment provisions of Title VII of the Civil Rights Act of 1964 and the lack of such an exception in Title VI, which prohibits discrimination by entities receiving federal financial assistance. The article then elaborates on the impact statutory amendments broadening the application of disparate impact claims would have on national security, particularly in regard to aviation security. Finally, the article discusses how private Title VI disparate impact claims could subject other government programs -- such as federal welfare reform and state and local English language policies -- to lawsuits in which courts could prohibit their implementation, or order significant changes in their administration, to the detriment of elected legislatures and democratic government.
46 HARV. J. ON LEGIS. 57 (2009)
This article begins by summarizing the evolution of disparate impact discrimination as a legal claim. It analyzes the national security exception to such claims in the employment provisions of Title VII of the Civil Rights Act of 1964 and the lack of such an exception in Title VI, which prohibits discrimination by entities receiving federal financial assistance. The article then elaborates on the impact statutory amendments broadening the application of disparate impact claims would have on national security, particularly in regard to aviation security. Finally, the article discusses how private Title VI disparate impact claims could subject other government programs -- such as federal welfare reform and state and local English language policies -- to lawsuits in which courts could prohibit their implementation, or order significant changes in their administration, to the detriment of elected legislatures and democratic government.
The Historical and Legal Norms Governing the Detention of Suspected Terrorists and the Risks Posed by Recent Efforts to Depart From Them
The Historical and Legal Norms Governing the Detention of Suspected Terrorists and the Risks Posed by Recent Efforts to Depart From Them
12 TEX. REV. L. & POL. 223 (2008)
Recently, controversy has surrounded the procedures governing the detention of those the United States military has determined are unlawful enemy combatants involved with terrorist organizations. This article provides some broader historical and legal context to debates regarding the detention of suspected terrorists and other unlawful enemy combatants that do not wear the uniform of a foreign state but rather roam in disguise targeting civilians. It begins with an analysis of the legal context in which unlawful enemy combatants have been held and tried, from the Revolutionary War through the post-Civil War period and efforts to try terrorist members of the Ku Klux Klan by military commission and the Supreme Court's cases addressing these issues during and following World War II. The article then discusses that history in the context of the recent Authorization for the Use of Military Force in the defense against terrorism and recent litigation in the Supreme Court regarding terrorist detention procedures. The article then describes the large variety of risks posed by departing from historical precedents and the modern laws of war and treating terrorists that have traditionally been considered unlawful enemy combatants as something more akin to ordinary domestic criminals.
12 TEX. REV. L. & POL. 223 (2008)
Recently, controversy has surrounded the procedures governing the detention of those the United States military has determined are unlawful enemy combatants involved with terrorist organizations. This article provides some broader historical and legal context to debates regarding the detention of suspected terrorists and other unlawful enemy combatants that do not wear the uniform of a foreign state but rather roam in disguise targeting civilians. It begins with an analysis of the legal context in which unlawful enemy combatants have been held and tried, from the Revolutionary War through the post-Civil War period and efforts to try terrorist members of the Ku Klux Klan by military commission and the Supreme Court's cases addressing these issues during and following World War II. The article then discusses that history in the context of the recent Authorization for the Use of Military Force in the defense against terrorism and recent litigation in the Supreme Court regarding terrorist detention procedures. The article then describes the large variety of risks posed by departing from historical precedents and the modern laws of war and treating terrorists that have traditionally been considered unlawful enemy combatants as something more akin to ordinary domestic criminals.
Independent of the Constitution? -- Issues Raised by an Independent Federal Legislative Ethics Commission with Independent Enforcement Authority
Independent of the Constitution? -- Issues Raised by an Independent Federal Legislative Ethics Commission with Independent Enforcement Authority
42 U. RICH. L. REV. 543 (2008)
To date, Congress has consistently kept its committees with jurisdiction over the ethical behavior of its members internal to the operations of the House of Representatives and the Senate. Because it has done so, the federal courts have generally refrained from becoming involved in the internal decisions and operational details of such congressional ethics committees. This article explores how the political question doctrine protects each house's decisions regarding the implementation of the rules governing the non-criminal behavior of members of Congress from judicial interference, as long as such rules are implemented by each house of Congress, and not an independent entity.
42 U. RICH. L. REV. 543 (2008)
To date, Congress has consistently kept its committees with jurisdiction over the ethical behavior of its members internal to the operations of the House of Representatives and the Senate. Because it has done so, the federal courts have generally refrained from becoming involved in the internal decisions and operational details of such congressional ethics committees. This article explores how the political question doctrine protects each house's decisions regarding the implementation of the rules governing the non-criminal behavior of members of Congress from judicial interference, as long as such rules are implemented by each house of Congress, and not an independent entity.
The Lost Legislative History of the Equal Rights Amendment: Lessons from the Unpublished 1983 Markup by the House Judiciary Committee
The Lost Legislative History of the Equal Rights Amendment: Lessons from the Unpublished 1983 Markup by the House Judiciary Committee
7 U. MD. L. J. RACE, RELIGION, GENDER & CLASS 341 (2007)
7 U. MD. L. J. RACE, RELIGION, GENDER & CLASS 341 (2007)
The proceedings of the last House Judiciary Committee debate on the Equal Rights Amendment (“ERA”) in 1983 was never officially published and is available only in the form of a rough transcript compiled by congressional stenographers. This article uses that transcript to explore several of the amendments offered to the ERA during the 1983 House Judiciary Committee markup and examines the concerns that motivated the sponsors of those amendments, concerns that included the ERA’s effect on government-funded abortions, the military draft and combat policies, same-sex marriage, insurance premiums, and private entities. The article then explores whether those concerns were justified in light of state court decisions interpreting the identical base text of the ERA in the six states that adopted such a state-level ERA as part of their own state constitutions.
We're All In This Together: Extending Sovereign Immunity to Encourage Private Parties to Reduce Public Risk
We're All In This Together: Extending Sovereign Immunity to Encourage Private Parties to Reduce Public Risk
75 U. CIN. L. REV. 1595 (2007)
The concept of “sovereign immunity”-- the doctrine under which governments are considered immune from suit unless they consent to such suits -- has long been supported by the policy that, if government is necessary to perform some essential functions, it should be able to perform those functions free from costly litigation that would allow courts and juries to “second guess” government policies. From the concept of sovereign immunity has grown the judicially-created doctrine of the “government contractor defense,” under which private entities that contract with government to help it perform its necessary functions (predominantly military operations) are held to share the government's immunity from suit, lest government be denied its ability to most effectively further its national defense goals by relying on the private sector for goods and services that are essential to the success of those efforts. As it has become increasingly clear both that legislatures (and expert agencies insofar as legislatures choose to defer to them) are the most appropriate developers of policies designed to maximally reduce public risks, and that government must rely on the private sector to help counter more and varied threats to its citizens, Congress recently enacted two federal statutes -- the SAFETY Act and the PREP Act -- to provide private entities that can more greatly reduce risks to the public safety with protection from litigation that would have otherwise deterred them from acting at all. Both these statutes are supported by the policies undergirding sovereign immunity and one, the SAFETY Act, explicitly codifies, for the first time, the government contractor defense, while also expanding the defense's reach. This article explores these recent developments, and the evolution of liability law and the threats to public health and safety that led to them.
75 U. CIN. L. REV. 1595 (2007)
The concept of “sovereign immunity”-- the doctrine under which governments are considered immune from suit unless they consent to such suits -- has long been supported by the policy that, if government is necessary to perform some essential functions, it should be able to perform those functions free from costly litigation that would allow courts and juries to “second guess” government policies. From the concept of sovereign immunity has grown the judicially-created doctrine of the “government contractor defense,” under which private entities that contract with government to help it perform its necessary functions (predominantly military operations) are held to share the government's immunity from suit, lest government be denied its ability to most effectively further its national defense goals by relying on the private sector for goods and services that are essential to the success of those efforts. As it has become increasingly clear both that legislatures (and expert agencies insofar as legislatures choose to defer to them) are the most appropriate developers of policies designed to maximally reduce public risks, and that government must rely on the private sector to help counter more and varied threats to its citizens, Congress recently enacted two federal statutes -- the SAFETY Act and the PREP Act -- to provide private entities that can more greatly reduce risks to the public safety with protection from litigation that would have otherwise deterred them from acting at all. Both these statutes are supported by the policies undergirding sovereign immunity and one, the SAFETY Act, explicitly codifies, for the first time, the government contractor defense, while also expanding the defense's reach. This article explores these recent developments, and the evolution of liability law and the threats to public health and safety that led to them.
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