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Chancery Court Indicates Willingness to Extend M&F to Compensation Award to Controlling Stockholder
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Popular Constitutional Argument
Get PDFCritics have long attacked popular constitutionalists for offering few clues about how their theory might work in practice—-especially inside the courts. These critics are right. Popular constitutionalism—as a matter of both theory and practice—remains a work in progress. In this Article, I take up the challenge of developing an account of (what I call) popular constitutional argument. Briefly stated, popular constitutional argument is a form of argument that draws on the American people’s considered judgments as a source of constitutional authority—akin to traditional sources like text, history, structure, and doctrine. Turning to constitutional theory, I situate popular constitutional argument within contemporary debates over judicial restraint, living constitutionalism, popular sovereignty theory, and originalism. And turning to constitutional practice, I offer the interpreter a concrete framework for crafting popular constitutional arguments— cataloguing the various indicators of public opinion that have played a role in recent Supreme Court decisions. These indicators include measures associated with the president, Congress, state and local governments, the American people’s actions and traditions, and public opinion polls. Throughout, I use illustrative examples to show the various ways in which popular constitutional argument already operates at the Supreme Court—appealing to jurists from across the ideological spectrum. While this Article begins to explore how popular constitutionalism might operate inside the courts, much work remains
Patenting New Uses for Old Inventions
Get PDFA bedrock principle of patent law is that old inventions cannot be patented. And a new use for an old invention does not render the old invention patentable. This is because patent law requires novelty—an invention must be new. But while a new use for an old invention does not make the old invention patentable, the new use itself might be patentable. In fact, new-use patents comprise a significant part of the patent landscape—particularly in pharmaceuticals, when drug companies obtain new-use patents to repurpose old drugs. This trend has fueled debates over follow-on innovation and patent quality. But there is a problem with new-use patents that has escaped the attention of legal scholars and commentators. The problem is when an inventor seeks a new-use patent for an old product that is, on close inspection, not new because the old product is really doing the same thing that it did before. This is a technical question that requires some understanding of the underlying science—how and why a result is achieved. But various evidentiary rules, biases, and perfunctory views of novelty preclude a true and accurate patentability assessment. Sometimes this leads to unwarranted patents; other times it derails meritorious inventions.
This Article corrects this problem by offering a new framework for evaluating novelty in new-use patent claims. It proposes a probing novelty inquiry that would require inventors to elucidate and disclose mechanistic information to prove that a claimed new use is truly novel. Providing mechanistic information would promote patent law’s disclosure function and improve patent (examination) quality. At a broader level, this Article raises the normative and theoretical question of what it means to be identical—which is what novelty is all about. It also raises policy questions about novelty’s gatekeeping function and its role in promoting broader goals of the patent system
Patenting New Uses for Old Inventions
Get PDFA bedrock principle of patent law is that old inventions cannot be patented. And a new use for an old invention does not render the old invention patentable. This is because patent law requires novelty--an invention must be new. But while a new use for an old invention does not make the old invention patentable, the new use itself might be patentable. In fact, new-use patents comprise a significant part of the patent landscape-particularly in pharmaceuticals, when drug companies obtain new-use patents to repurpose old drugs. This trend has fueled debates over follow-on innovation and patent quality. But there is a problem with new-use patents that has escaped the attention of legal scholars and commentators. The problem is when an inventor seeks a new-use patent for an old product that is, on close inspection, not new because the old product is really doing the same thing that it did before. This is a technical question that requires some understanding of the underlying science--how and why a result is achieved. But various evidentiary rules, biases, and perfunctory views of novelty preclude a true and accurate patentability assessment. Sometimes this leads to unwarranted patents; other times it derails meritorious inventions.
This Article corrects this problem by offering a new framework for evaluating novelty in new-use patent claims. It proposes a probing novelty inquiry that would require inventors to elucidate and disclose mechanistic information to prove that a claimed new use is truly novel. Providing mechanistic information would promote patent law\u27s disclosure function and improve patent (examination) quality. At a broader level, this Article raises the normative and theoretical question of what it means to be identical--which is what novelty is all about. It also raises policy questions about novelty\u27s gatekeeping function and its role in promoting broader goals of the patent system
Primer on Risk Assessment for Legal Decision-Makers
Get PDFThis primer is addressed to judges, parole board members, and other legal decisionmakers who use or are considering using the results of risk assessment instruments (RAIs) in making determinations about post-conviction dispositions, as well as to legislators and executive officials responsible for authorizing such use. It is meant to help these decisionmakers determine whether a particular RAI is an appropriate basis for legal determinations and whether evaluators who rely on an RAI have done so properly. This primer does not take a position on whether RAIs should be integrated into the criminal process. Rather, it provides legal decision-makers with information about how RAIs are constructed and the types of information they provide, with the goal of facilitating their intelligent selection and use
The Law on Police Use of Force in the United States
Get PDFRecent events in the United States have highlighted the fact that American police resort to force, including deadly force, much more often than in many other Western countries. This Article describes how the current regulatory regime may ignore or even facilitate these aggressive police actions. The law governing police use of force in the United States derives in large part from the Fourth Amendment to the United States Constitution, which prohibits unreasonable searches and seizures. As construed by the United States Supreme Court, the Fourth Amendment provides police wide leeway in using deadly force, making custodial arrests, and stopping and frisking individuals. While state and local police departments can develop more restrictive rules, they often do not. Additionally, the remedies for violations of these rules are weak. The predominant remedy is exclusion of evidence, the impact of which falls primarily on the prosecutor and in any event only has a deterrent effect when evidence is sought. Civil and criminal sanctions have been significantly limited by the Supreme Court, particularly through the doctrine of qualified immunity (applied to individual officers) and the policy or custom defense (applied to municipalities). This minimal regulatory regime is one reason police-citizen encounters in the United States so often result in death or serious bodily harm to citizens, in particular those who are Black. The Article ends with a number of reform proposals
The Regulation of Commercial Speech: Can Alternative Meat Companies Have Their Beef and Speak It Too?
Get PDFWould you eat a hamburger that was made in a petri dish? Consumers may have this option soon as laboratory-grown meat begins to hit supermarket shelves. Laboratory-grown meat is made from animal stem cells that eventually transform into primitive fibers and tissue within the confines of a petri dish. Although a lot remains unknown about laboratory-grown meat, consumers can think of it as meat production without the farm. How might consumers react to meat labels indicating that their products were made in a petri dish? Laboratory-grown meat companies have yet to find out, as some states have passed laws that ban the use of the term “meat” to describe their products. Ironically, some of these statutes have also sought to prevent vegetarian meat companies from advertising with the term “meat,” even though their products have been on the market for decades.
This Note argues that state statutes restricting use of the term “meat” violate the First Amendment. While the government has a legitimate interest in promoting consumer protection and market transparency, these statutes are more extensive than necessary to achieve the government’s goal. The US federal government should enact legislation that balances consumer protection and the commercial speech of alternative meat producers. Due to its extensive history of regulating food labels and advertisements, the federal government is best positioned to enact a homogeneous regulatory system for alternative meat. Additionally, federal legislation, as opposed to varied state statutes, would make it easier for food companies to comply with one set of standards while distributing across state lines.
As the market for food alternatives diversifies, a regulatory system that protects consumers and upholds core First Amendment values becomes increasingly vital
The Future of the Confrontation Clause: Semiautonomous and Autonomous Machine Witnesses
Get PDFHow should the Confrontation Clause of the Sixth Amendment be interpreted as to machine witnesses? Courts across the country have resisted efforts to cross-examine the human agents who assist machines that generate data used in criminal trials. Such challenges under the Confrontation Clause have been rejected directly and in great number, and the rules of evidence are largely being read to not require the testimony of those who have the best information about the machine\u27s use for the case at hand. This problem arises in an era of machine exceptionalism and widespread use. From increasingly sophisticated forensic lab tools to crime scene drones, these machines are growing in prevalence. Meanwhile, other machines that operate with little-to-no human assistance, such as surveillance cameras and wearables, are also on the rise. As new technologies creep further into numerous aspects of public and private space, human witnesses are less and less necessary to criminal trials. Increasingly, machines are created for the specific purpose of making assertions about reality in place of humans. Courts, however, have held that the Confrontation Clause largely does not reach those machine accusers. This Article argues that, in light of these changes, courts should reinterpret the Confrontation Clause to provide a right to confront machine accusers
The Fault in Our Stars: Challenging the FCC\u27s Treatment of Commercial Satellites as Categorically Excluded from Review under the National Environmental Policy Act
Get PDFMega satellite constellations, such as SpaceX\u27s Starlink, have the ability to connect humans across the globe in a way never before possible. However, the unprecedented deployment of tens of thousands of satellites into orbit around Earth creates the risk of altering the night sky for astronomers and the public for decades to come, as well as the risk of polluting the environment through the use of toxic satellite components. The Federal Communications Commission considers commercial-satellite projects categorically excluded from environmental review despite the National Environmental Policy Act\u27s requirement that federal agencies review projects for their environmental effects. A court would likely strike down the FCC\u27s categorical exclusion for its lack of specificity and find that the agency is required to review commercial-satellite projects since they are likely to have direct, indirect, and cumulative effects on the environment. To prevent a challenge in court, the FCC should use NASA\u27s satellite project review model and complete an environmental assessment of commonly used satellite components so that future commercial-satellite projects using those components do not need to go through an environmental assessment during their application process. This would create standards in the commercial-satellite industry that promote economic growth and stability while complying with Congress\u27s mandate to the federal government to proactively consider the environmental impacts of its actions