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Lynk Labs: How the Least-Vetted Documents Destroy Issued Patents
No full textThe Lynk Labs petition presents the Supreme Court with an opportunity to restore the temporal coherence that Congress built into § 311(b)\u27s evidentiary framework. By treating printed publication as synonymous with any reference that eventually becomes public, the Federal Circuit has transformed IPR into a forum where unexamined, abandoned patent applications can destroy patents that survived the very scrutiny those applications failed to complete. The Court should grant certiorari and hold that a printed publication must be printed and published before the critical date to serve as the basis for an IPR challenge
True Threats to First Amendment Protections in the Age of Voter Disinformation
Get PDFImagine that in the weeks leading up to a presidential election, the boss of a factory that primarily employs minority workers credibly and repeatedly warns the rank-and-file, “If any of you vote in this upcoming election, we will make sure that you are fired.” If delivered and understood with serious intent, this statement would clearly violate the federal Voting Rights Act of 1965 (“VRA”), which states that “[n]o person . . . shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote . . . .” Remarkably, however, such a statement might be protected by the First Amendment under a literal reading of the Supreme Court’s definition of the “true threats” exception to First Amendment immunity, as set forth in Virginia v. Black. In that case, the Court seemed to limit the definition of punishable true threats, for First Amendment purposes, to serious threats of death or unlawful violence. In doing so, the Court implicitly forbade the government from punishing speech that threatened lesser harms (such as the economic harm that would come from losing a job)
The Gender Sidelining Trap in Mediator Selection
Get PDFOne of the greatest advantages of commercial mediation is the parties’ ability to construct the process to fit their needs. In mediation, parties are free to make decisions about how the conversation will be structured—whether in person or online, joint session or not, whether negotiations will take place over a few hours or days, and so forth. Here, parties are also uniquely empowered to design what their settlement will ultimately look like—or decide if settlement is even appropriate. Perhaps most importantly, parties decide who will serve as the mediator, the person they trust to facilitate their discussions and negotiations, and who is charged with helping them design the bespoke process they requir
Participant Actions and Intermediate Outcomes in Initial Joint Sessions and Initial Caucuses
Get PDFHistorically, the initial mediation session usually was a joint session where the mediator and the disputants met together to exchange information and discuss the substance of the dispute. Accordingly, the main components of the initial mediation session and the informational and communication benefits they were thought to provide were discussed in the context of the disputants being together and speaking directly. Today, however, many actions that traditionally took place during the initial joint session, including the discussion of substantive matters and exchanges between the parties, are less likely to occur during initial joint sessions than they did historically and are more likely to take place during initial separate caucuses. These changes lead to questions about whether the actions historically discussed as contributing to mediation outcomes (a) still show these relationships in initial joint sessions today and (b) have the same benefits when they take place during initial caucuses instead of during initial joint sessions
A Snitch in Time Can Help Deport Nine: Proposing a Private Enforcement Scheme to Spur Self-Deportations
Get PDFAny forcible deportation drive that the incoming Trump administration may undertake to remove some of the many millions of aliens illegally present in the country would be limited in scope, underscoring the importance of goading self-deportations for perceptibly reducing these aliens’ numbers by curtailing their employment opportunities. Based in part on Britain’s experience with eradicating child labor in the nineteenth century, the article proposes a scheme of private enforcement for rendering unemployable a large proportion of unauthorized aliens in the United States labor market today. The proposal comprises enacting a punitive tax on all compensation paid for the personal services or labor of such unauthorized aliens and enabling private enforcement of this tax. Implementing that proposal would require only minor amendments to the Internal Revenue Code and the False Claims Act. But together, those amendments would constitute a low-cost way of compelling employers to comply with E-Verify, which, in turn, would prod unauthorized aliens to self-deport. The article spells out and discusses the text for making those legislative changes, which could be adopted in a budget reconciliation bill. Noting that the proposal presented can be developed further to protect domestic wages from legally imported cheaper labor, the article urges deferring any such extensions until there is greater political consensus on curbing legal immigration
The Opposite of Retail Therapy: Hidden Fees and Online Shopping Hell
Get PDFIn 2024, California passed a law banning hidden fees, and the Federal Trade Commission finalized a similar new rule in 2025, targeting unfair and deceptive fees. These laws aim to benefit consumers and enhance competition by increasing pricing transparency. However, they fail to adequately address variable fees, putting some businesses between a rock and a hard place as they are forced to choose between advertising a misleading price or not advertising an initial price at all, leaving some consumers with less accurate information than they would have had before the enactment of the law. These laws also vary significantly in scope: while the FTC rule applies only to two specific industries, California’s drip pricing law applies broadly—to almost every business that advertises prices to consumers. Additionally, the commercial disclosure requirements of these laws risk violating the First Amendment right to free speech. This article explores the implications of these laws for businesses that incorporate variable fees in pricing, the ways these laws may conflict with the First Amendment right to free speech, and how lawmakers may modify drip pricing regulations to adapt to these issues while encouraging accurate communication of prices
Charter Schools: The Education Solution Strangling the Public Education System
Get PDFThis paper investigates why charter schools exist in Missouri and how judicial precedent has permitted their constitutionality. It will highlight their potential for corrupt policy, rebut the scant evidence proving they perform better than public schools, and demonstrate that charter schools are not the effective solution to poor public-school performance as they were initially intended. Rather they are disguised constitutional violations. This paper proposes that the United States abandon the charter school movement, concentrate all educational funding in public schools, and use the grants intended for charter schools to implement educational reform proven to be effective
A Systems Theory of Tort Law: Reevaluating the Case Against “Regulation by Litigation”
Get PDFFor decades, critics of tort law have argued that lawsuits are a poor substitute for government regulation. These detractors compare the institutional capacities of courts and agencies, and they conclude that litigation is ineffective, inefficient, and illegitimate as an alternative to notice-and-comment rulemaking. In response, this Article asserts that characterizing tort law and administrative regulation as alternatives obscures their interdependence. By using systems theory to model this interdependence, the Article argues that any fair-minded assessment of tort litigation’s contribution to regulatory governance requires understanding it as part of a system. Ignoring the systemic impacts of tort litigation overlooks the subtle ways in which it enhances expertise, stakeholder participation, feedback, and learning in regulatory regimes. To illustrate, the Article examines the most urgent food safety problem currently facing U.S. consumers: foodborne illness outbreaks caused by leafy greens contaminated with virulent microbial pathogens. Systems theory demonstrates how tort litigation has played a vital role in the development of government regulations and industry standards to reduce the risk of contamination. Through interactions with media coverage, consumer advocacy, and insurance underwriting, tort litigation has shaped and motivated the development of the food safety standards that govern leafy greens production. From a careful analysis of how lawsuits have advanced food safety policy, the Article derives a general theory of the interdependence of tort litigation and government regulation
Defining Diversity: Challenges to Diversity, Equity, and Inclusion Efforts in a Post-Affirmative Action America
Get PDFFinals season is a time of high stress in law schools. In fact, it is not uncommon for students to fantasize about miraculously convincing a court that a four-hour exam constitutes a form of intentional infliction of emotional distress. Such commentary remains firmly in comedic territory, not reality. Occasionally, however, law students with grievances beyond those expressed in the dramatic remarks above devote time and energy to seeking legal action against their respective law schools. The U.S. District Court for the Southern District of New York encountered such a situation in Doe v. New York University, where a student alleged that the New York University Law Review’s commitment to diversity subjected him to unfair discrimination in the journal application process. Doe illustrates the confusion regarding what a commitment to diversity entails and the need for transparency in diversity initiatives