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 »
“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 »
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 »
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 »
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 »
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 »
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 »
The world is full of reminders that we are surrounded by patented inventions. Everyday products from coffee cup lids to cell phones bear the markings of United States patent numbers. For example, Texas Instruments (TI) stamped the back of its popular TI-83 Plus graphing calculator with three patent numbers. By… Read More »
The most troubling countermajoritarian difficulty in modern constitutional law is Rule Twenty-Two of the United States Senate. Forty-one Senators, who could represent less than forty-one percent of the population due to the malapportionment of the Senate, can veto most legislation and nominations by refusing to invoke “cloture.” A vote against… Read More »
The criminal prosecution of immigration—principally for illegal entry and reentry, alien smuggling, and document fraud—has reached an all-time high. Not since Prohibition has a single category of crime been prosecuted in such record numbers by the federal government. Immigration, which now constitutes over half of the federal criminal workload, has… Read More »