Note: Inequitable-Conduct Doctrine Reform: Is the Death Penalty for Patents Still Appropriate?
By Nicole M. Murphy. Full text here. Over the past three years, the Federal Circuit has contributed to the rise in inequitable-conduct defenses by failing to apply the doctrine consistently. First, the court broadened the scope of the doctrine’s materiality element to include information unrelated to patentability and failed to offer guidance on how to apply…
Continue ReadingNote: Cramming Down the Housing Crisis: Amending 11 U.S.C. § 1322(b) to Protect Homeowners and Create a Sustainable Bankruptcy System
By Nina Liao. Full text here. The U.S. bankruptcy system has served as a safety net for millions of Americans for the last 110 years, but it failed to rescue homeowners in the ongoing recession. Amid fiery allegations and accusations, economists and bankruptcy judges debate the controversial modification of loans, a process called cram-down. Cram-down is…
Continue ReadingNote: Defogging the Cloud: Applying Fourth Amendment Principles to Evolving Privacy Expectations in Cloud Computing
By David A. Couillard. Full text here. It took nearly a century after the invention of the telephone for the Supreme Court to recognize that the Fourth Amendment could be applied to the content of private telephone conversations. Today, the Internet is in a similar state of limbo, with courts reluctant to grant Fourth Amendment protection…
Continue ReadingReview Essay: How a Judge Thinks
By Michael J. Gerhardt. Full text here.
Continue ReadingThe National Surveillance State: A Response to Balkin
By Orin S. Kerr. Full text here.
Continue ReadingThe Limits of Backlash: Assessing the Political Response to Kelo
By Ilya Somin. Full text here. The Supreme Court’s 2005 decision in Kelo v. City of New London, which upheld the power of government to condemn private property for purposes of economic development, generated a massive political backlash from across the political spectrum. Over forty states, as well as the federal government, have enacted post-Kelo reform…
Continue ReadingSpecific Performance and the Thirteenth Amendment
By Nathan B. Oman. Full text here. Black-letter law declares that a contract to perform personal services cannot be specifically enforced. Many courts, scholars, and commentators have claimed that such enforcement would constitute “involuntary servitude” under the Thirteenth Amendment. This Article, however, rejects that conventional wisdom. A careful reading of the history leading to the ratification…
Continue ReadingNote: Native American Rape Victims: Desperately Seeking an Oliphant-Fix
By Marie Quasius. Full text here. Native American women suffer sexual assault at a much higher rate and with more serious consequences than any other racial or ethnic group in the United States. Further, such rapes are overwhelmingly committed by individuals outside the Native American community. Most non-Indian perpetrators, however, go unpunished. The Supreme Court decision…
Continue ReadingNote: Murder and the Military Commissions: Prohibiting the Executive's Unauthorized Expansion of Jurisdiction
By Joseph C. Hansen. Full text here. When Congress passed the Military Commissions Act of 2006 (MCA) to create a military commission system to try detainees held at Guantánamo Bay, it granted the Secretary of Defense the authority to detail the procedural and evidentiary rules. In response, the Secretary promulgated the Manual for Military Commissions (MMC),…
Continue ReadingShaping Supreme Court Policy Through Appointments: The Impact of a New Justice
By Charles Cameron & Jee-Kwang Park, with Deborah Beim. Full text here.
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