Why Do Patent Holders Cooperate?

Michael Mattioli

This essay discusses the bold and intriguing theory that our patent system’s problems can be corrected through private cooperation. According to some commentators, cooperative efforts such as patent pools, research consortia, and similar licensing collectives are proof that market participants have the wisdom and the will to collectively disarm their… Read More »

Probabilistic Standing

F. Andrew Hessick

Under the case or controversy clause, the federal judiciary cannot address legal questions in the abstract; it may do so only in the course of resolving a case — that is, a dispute capable of resolution by a judicial order imposing a specific form of relief through an “an immediate… Read More »

Choice of Law in Federal Courts: From Erie and Klaxon to CAFA and Shady Grove

Kermit Roosevelt III

Erie Railroad v. Tompkins is one of our great cases—a landmark in the law. But it remains in many ways surprisingly mysterious. Scholars disagree sharply over what it stands for, what its constitutional basis is, and even whether such a basis exists. Nor has the body of doctrine we call… Read More »

The Constitution’s Obscure Offenses Clause: Where the Alien Tort Statute and Military Commissions Meet

Eugene Kontorovich

I. Introduction
Obscure constitutional provisions rarely give rise to serious questions: that is why they are obscure. Yet sometimes provisions spring quickly from obscurity to relevance. Never in the nation’s history has the scope and meaning of Congress’s power to “Define and Punish . . . Offenses Against the Law… Read More »

Who Will Watch the Watchmen?: Citizens Recording Police Conduct

Michael Potere

“Get off the motorcycle!  Get off the motorcycle!  Get off the motorcycle!  State Police . . . put your hands up!” off-duty Maryland State Trooper J.D. Uhler yelled as he jumped out of his car, pulled out his gun, and ran towards motorcyclist Anthony Graber.  Trooper Uhler exited his personal vehicle wearing street clothes… Read More »

Point of Novelty

Mark A. Lemley - Stanford Law School

We award patents to inventors because we hope to encourage new ideas.  It is curious, then, that patent law itself purports to pay no attention to which aspects of a patentee’s invention are in fact new.  A patented invention is legally defined by its claims—written definitions of the invention.  And… Read More »

Ending the Korematsu Era: A View from the Modern War on Terror Cases

Craig Green - Temple University Beasley School of Law

During much of the past decade, government officials have prosecuted a “Global War on Terror” that — they claim — is different from all prior conflicts and is unhinged from ordinary legal limits.  As early as September 2001, however, such claims of novelty ­were accompanied by arguments about history and… Read More »

Flexing Judicial Muscle: An Empirical Study of Judicial Activism in the Federal Courts

Corey Rayburn Yung - John Marshall Law School

Immediately following President Obama’s nomination of then-Judge Sonia Sotomayor to replace Justice Souter on the United States Supreme Court, critics branded her a “judicial activist” who would work without regard to the “rule of law.” Former House Majority Leader Tom DeLay contended that President Obama “couldn’t have appointed a more activist… Read More »

Agency Rulemaking and Political Transitions

Anne Joseph O'Connell - University of California, Berkeley, Law School

Even before President Obama took to the dance floor on the night of his inauguration, his then-Chief of Staff, Rahm Emanuel, had already fired off a memorandum to the heads of federal agencies instructing them not to start or finish any regulations without approval of the new Administration.  Emanuel also… Read More »

Party Polarization and Congressional Committee Consideration of Constitutional Questions

Neal Devins - William & Mary Law School

When enacting health care legislation in March 2010, Congress largely ignored potential legal challenges to its handiwork.  Even though the constitutionality of the law was the subject of scores of newspaper stories, opinion pieces, legal blog commentary, and much more, no congressional committee held hearings examining the constitutionality of health… Read More »

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