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Alice Corp. v. CLS Bank Int\u27l
Get PDFCongress has the power to promote the Progress of Science and useful Arts. \u27 Patent law subject matter eligibility under 35 U.S.C. section 101 creates a balance between incentivizing inventors to publicly disclose their knowledge and protecting the public from monopolies on ideas. Allowing inventors to monopolize the basic tools of scientific and technological work might tend to impede innovation more than it would tend to promote it. 2 Laws of nature, natural phenomena, and abstract ideas constitute unpatentable subject matter under section 101.3 The section 101 inquiry serves as a threshold test to determine if the subject matter of the patent is directed to a general idea or a new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.4 The 2014 Alice Corp. v. CLS Bank Int\u27l5 ( Alice ) decision became the first Supreme Court decision since Bilski v. Kappos6 to address the section 101 subject matter analysis for software
The Structural Challenge of Investment Arbitration Viewed through the Lens of Third-Party Funding
No full textThird-party funding has been relatively well-received by the international commercial arbitration system, with the caveat that there are justifiable concerns about disclosure requirements, evidentiary privileges, and conflicts of interest that must be addressed through international rules, guidelines, and norms. Many discussions about third-party funding address international commercial and investment arbitration together. However, third-party funding may affect the investment arbitration differently than commercial arbitration due to structural differences in the investment arbitration system
Fidelity to Our Living Constitution
Get PDFThis essay explores the arguments of Bruce Ackerman, who decries the Roberts Court’s “shattering judicial betrayal” of our living constitution’s Civil Rights Revolution. He argues for a broader conception of the constitutional canon: The higher law of the Constitution includes not only formally adopted provisions but also “landmark statutes” and judicial “superprecedents,” for example, those of the Civil Rights Revolution. He also argues for a broader conception of popular sovereignty: We the People manifest our will not only through the formal amending procedures but also through higher lawmaking procedures outside Article V. He exhorts us to fidelity to our living constitution: the commitments “hammered out” through the processes of popular sovereignty during the Civil Rights Revolution. I reconstruct Ackerman’s living constitutionalism as a moral reading in which faithful interpretation requires normative judgments about the best understanding of the constitutional commitments that have been built out over time
From Outsider Status to Insider and Outsider Again: Interest Convergence Theory and Normalization of LGBT Identity
Get PDFAfter the Supreme Court’s decision in United States v. Windsor, which declared the federal Defense of Marriage Act (DOMA) unconstitutional,and after the granting of certiorari in Obergell v. Hodges, where the Supreme Court will decide whether the Fourteenth Amendment requires states to provide a marriage license to same-sex couples, national marriage equality seems like a legal inevitability.However, Windsor and Obergell, along with other state-level advances toward marriage equality, are not equally promising for all members of the lesbian and gay community. Although Windsor and the revolution of cases that have led to Obergell hold significant promise for one privileged subset of gays and lesbians—white, economically privileged, and educated gays and lesbians—they do not necessarily carry the same potential for less privileged subgroups within the gay and lesbian community, namely gays and lesbians of color. In fact, it is possible that inequality among these subgroups within the gay community will increase as gays and lesbians achieve marriage equality and other legal rights. After all, the gay community is not monolithic, and there are various forms of diversity among homosexuals, which have largely been overlooked in the mainstream gay rights movement
Arbitrator Bias
Get PDFSeeking to bring arbitration into disrepute, an evil gremlin might contemplate two starkly different routes. One route would tolerate appointment of pernicious arbitrators, biased and unable to judge independently. An alternate route to shipwreck, also reducing confidence in the integrity of the arbitral process, would establish unrealistic ethical standards that render the arbitrator’s position precarious and susceptible to destabilisation by litigants engaged in dilatory tactics or seeking to annul unfavourable awards. To reduce the risk of having cases decided by either pernicious or precarious arbitrators, those who establish and apply ethical guidelines walk a tightrope between the rival poles of (i) keeping arbitrators free from taint, and (ii) avoiding maneuvers that interrupt proceedings unduly. The job of evaluating independence or impartiality implicates subtle wrinkles to the comportment of individuals in the application of ethical standards entails a spectrum of situations in which mere perceptions of bias may be given weight equal to real bias
Antitrust Snoops on the Loose
No full textPerhaps the most fascinating feature of the continuing Apple litigation — based on the dubious claim that the tech giant conspired to fix e-book prices — is Manhattan district court Judge Denise Cote’s imposition in October 2013 of a monitor to watch over the company’s compliance with antitrust laws. The monitor, a lawyer named Michael Bromwich, was put in place over Apple’s objections and has conducted a wide - ranging investigation, demanding meetings with top executives and board members. He billed Apple for more than $138,00 0 after two weeks on the job
We All Do It: Unconscious Behavior, Bias, and Diversity
Get PDFMr. Wheeler suggests that many of our behaviors, in the workplace and elsewhere, are motivated by unconscious triggers and emotions, including racial biases. These behaviors, however, can be prevented by making conscious choices that enhance diversity
Fit, Justification, and Fidelity in Constitutional Interpretation
Get PDFRonald Dworkin famously argued that the best interpretation of a Constitution should both fit and justify the legal materials, for example, the text, original meaning, and precedents. In his recent book, Against Obligation (Harvard University Press, 2012), Abner S. Greene provocatively and creatively bucks the tendencies of constitutional theorists to profess fidelity with the past in constitutional interpretation. He rejects originalist understandings of obligation to follow original meaning in interpreting the Constitution. And indeed he rejects interpretive obligation to follow precedent. In this Essay I focus on Greene’s arguments against interpretive obligation to the past, in particular, his argument that even constitutional theorists like Dworkin and I give too much deference or weight to ‘fit’ and precedent, and not enough primacy to ‘justification’ and justice, in our approaches to constitutional interpretation. This Essay is part of my book in progress entitled Fidelity to Our Imperfect Constitution, which will criticize all forms of originalism, and it will further develop my arguments in previous books for what Dworkin called a ‘moral reading’ of the Constitution and what I have called a ‘Constitution-perfecting theory’ that would interpret the Constitution so as to make it the best it can be. In the Essay, I argue that taking fit seriously does not entail a commitment to interpretive obligation to follow the past, whether concrete original meaning or precedent. I also argue that taking fidelity seriously does not entail such a commitment. Fidelity, rather, is an attitude of commitment to making the scheme work and to further developing it, building it out over time in ways to better realize its ends and our aspirations: to make the Constitution the best it can be. Finally, as against Greene’s argument that justification has primacy over fit in constitutional interpretation, I argue instead that fit and justification are co-original and of equal weight: both stem from the basic aim of developing the best interpretation
Class-Based Adjudication of Title VII Claims in the Age of the Roberts Court
Get PDFThis article considers two barriers to class-based adjudication of Title VII claims erected by the Roberts Court: (1) the Court\u27s interpretation of Rule 23, primarily in Wal-Mart v. Dukes; and (2) the Court\u27s interpretation of the Federal Arbitration Act (FAA) in a series of decisions, both employment-related and not. The article contends that it is the latter group of decisions that are the more significant for Title VII private aggregate litigation as well as for other types of private litigation. The Wal-Mart Court predictably did not expand an employer\u27s obligations to avert discrimination by its agents, and its predictable interpretations of Rule 23 reinforced existing conditions on Title VII class actions. But Wal-Mart neither retracted meaningful Title VII law nor reinterpreted Rule 23 in a manner that should, or indeed has, prevented private Title VII class litigation in appropriate cases. The Court\u27s interpretations of the FAA, by contrast, enable most employers outside the transportation industry to avoid any form of class adjudications, whether in arbitration or litigation. Reform thus should concentrate on restricting employers\u27 legal authority to impose pre-dispute agreements to arbitrate on employees
Challenges for People with Disabilities within the Health Care Safety Net
Get PDFMedicare and Medicaid were passed to serve as safety nets for the country\u27s most vulnerable populations, yet, the disabled community continues to be one whose health care needs are not being met. This group is all too frequently left to suffer health disparities due to cultural incompetency, stigma and misunderstanding, and an inability to create policy changes that covers the population as a whole and their acute and long-term needs