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Should the Federal Circuit Stand Down on Standing?
Get PDFOn March 11, 2020, the World Health Organization officially declared COVID-19 a pandemic, just ninety days after patients in Wuhan, China, began experiencing an unknown pneumonia-like illness.1 States rapidly responded, beginning shutdowns just a few days later.2 Amidst the early shutdown chaos, Moderna began human trials on its new COVID-19 vaccine.3 Moderna’s road to vaccine development was not without bumps, however, as the company launched a patent validity attack on another company’s technology it used while developing its vaccine. The dispute made its way to the Court of Appeals for the Federal Circuit, where the question focused on whether Moderna could even contest the results of an Inter Partes Review (“IPR”), which could have invalidated the patent and given Moderna license to use the technology, in the first place—i.e., did Moderna have standing
Sunnier Days Ahead? Missouri’s Outlook After Missouri Supreme Court Finds Solar Panel Property Tax Unconstitutional
Get PDFMany are aware of the inherent power that a constitution holds. Whether it be the timeless federal document signed in 1787, or a state constitution adopted decades later, a “constitution” in the United States comes with an authoritative voice that instructs the very principles and values the government has long established. Constitutions, by nature, stand the test of time; they create guidelines, structure, and, above all, a sense of justice that lies in the backdrop of every legal argument presented and every court decision rendered
A Uniform Standard for Certifying Questions to State Courts
No full textSince the mid-twentieth century, federal courts have certified questions of state law to state supreme courts. Rather than speculate on how a state\u27s high court would rule on a given issue, federal courts allow the state court to determine the question itself. In so doing, the federal judiciary promotes comity and consistency while discouraging forum shopping. Yet, federal courts do so at the cost of judicial economy and speedy adjudication of litigants\u27 pending claims.
The United States Court of Appeals is divided into thirteen circuits, of which eleven exercise jurisdiction encompassing states in the Union. Each circuit, as explained in Part III, uses its own test to determine when to certify a question of state law to that state\u27s judiciary. Importantly, though, certification is a dance requiring a partner. While the federal circuit courts must determine which cases involving state issues to send to the state courts, the states must also agree to accept the certified question.
Federal courts need a uniform standard for choosing which questions to certify to state courts to better promote consistency, preserve judicial economy, and prevent forum shopping. Debates continue in the judiciary and scholarly community as to the advisability of the certified question doctrine.
Thus, this Article advocates a reform to the system rather than a complete disassembly, and it does not discuss the continued viability of the practice. Rather, it proposes a standard for federal courts to use when determining whether to certify is the following: first, the question must be determinative of the case pending before the federal court; second, the court must ascertain whether an existing mandatory or persuasive state precedent is directly or indirectly on point for the issue; and finally, if not, the court should consider whether the question is one of state constitutional law. If it is, the court may certify.
This Article presents the proposal in six sections. Part II surveys the history of certification. Part III outlines the current certification standards employed by the eleven circuit courts with jurisdiction encompassing the states. Part IV argues for the need for a uniform standard, proposes a new test, and analyzes the logistics of implementing reform. Finally, Part V briefly concludes
SHOULD WE GET RID OF THE BAR EXAM?
Get PDFThis post discusses an article analyzing empirical data about licensing of lawyers in Wisconsin. Graduates of Wisconsin schools have a diploma privilege and are licensed in that state without taking a bar exam. The article argues that bar exams generally don’t fulfill their purpose of protecting the public. They consume tremendous resources of the legal profession, law schools, and law student and divert attention from activities that are likely to be more effective and valuable
Sampled! Revisiting Fair Use and De Minimus Copying In Music Sampling
Get PDFCould your favorite mash-up be an infringement under Copyright law? At one time, sound recordings featured a simplified copyright infringement analysis under the 2005 Bridgeport Music decision, which held that the Copyright Act provided copyright holders an exclusive right to sample their own work and any other sampling constituted infringement, unless it was a fair use. This decision remained intact until the VMG decision in 2016, which renewed the availability of the de minimis infringement defense in music sampling cases and held that sampling without a license did not constitute infringement so long as the sample was not recognizable by the general public. Since the revival of the de minimis defense, other questions have been raised concerning sampling—including whether the de minimis defense is an affirmative defense and whether a work, even if not transformative, is not an infringement based on the intent behind the work. The VMG decision, as well as other decisions backing away from Bridgeport Music’s bright-line rule, has resulted in mass confusion regarding whether mash-up songs are infringements of copyright holders’ rights or transformative works—a term of art that is not specifically defined. Courts and Congress should define what constitutes a transformative work, disregard the de minimis defense and intent argument, and return to the Bridgeport Music rule in order to align the law with the Constitution’s intent of the Copyright Act
Jurisdictional Conflicts in Adult Guardianship
Get PDFThe case of Britney Spears has shined a spotlight on guardianship, a subject area in which there has been increasing interest in recent years. The events surrounding Ms. Spears s case all occurred in a single jurisdiction, California. But with Americas increasingly mobile population, an individual for whom a guardianship is sought may have contacts with multiple states and, in some cases, foreign countries. Furthermore, following the appointment of a guardian, the guardian or individual subject to guardianship may move to another jurisdiction; it may become necessary to transfer the guardianship proceeding to another jurisdiction or seek ratification of a local guardians acts in another place.
The common law was ill-equipped to address the challenges of modem guardianship, where the participants in the proceeding often have contacts with more than one state. The application of well-established but sometimes uncertain concepts of domicile, residence, and presence could result in multiple states having concurrent jurisdiction to appoint a guardian or otherwise deal with an individuals property. Also, it was sometimes stated that a guardians authority stops at the state line, thereby denying the guardians actions extra-territorial effect.
This Article begins with a discussion of representative cases that illustrate the jurisdictional conflicts that can arise in adult guardianship. The Article then discusses how the common law, state statutes, the Restatement of Conflict of laws, and prior uniform acts failed to adequately respond to these challenges. The Article then turns to a detailed analysis of the UA GPP JA and to case law decided under that Act. The Article concludes with a recommendation on how adult guardianship should be addressed in the Restatement (Third) of Conflict of Laws project and makes a plea for more complete guardianship data so that the effectiveness of the UAGPPJA and other legislative solutions in guardianship can be better assessed
Does the Community Choice Aggregation Approach Advance Distributed Generation Development? A Case Study of Municipalities in California
Get PDFGlobally, decentralized energy systems are gaining popularity due to their potential for energy accessibility, energy resilience, and sustainability benefits. Existing research on an energy system decentralization approach, community choice aggregation (CCA), shows its ability to lower energy costs and increase renewable electricity consumption for U.S. communities. Nevertheless, research on the relationship between CCA and distributed electricity generation development is lacking. This paper fills this gap by investigating if the CCA approach associates with distributed generation capacity interconnection in California municipalities. The finding shows that although the average capacity has increased for all municipalities throughout the study period, contrary to proponents’ arguments, the CCA approach has insignificantly decreased the capacity interconnected for municipalities. It is unclear if the result is due to a lack of higher-level support for the full CCA implementation or substitution by community-owned distributed generation. Future research is necessary to determine the CCA effect comprehensively in California. With this understanding, the research could be expanded to explore how community energy approaches work towards distributed generation across the U.S. and the globe
Achieving the Achievable: Realistic Labor Law Reform
Get PDFA common reprise among labor activists and scholars has been that for the fortunes of labor to change, the law must change. Prompted perhaps by a seeming surge in labor movement activity over the past few years, including headline-grabbing strikes and recent union victories at several U.S. Starbucks locations, various labor law activists and scholars have called to seize the moment and proposed the enactment of comprehensive labor law reform. We argue in this Article that broad-scale labor law reform is unlikely to be enacted by the current U.S. Congress or even have all its provisions pass muster when potentially challenged in the current U.S. Supreme Court. Thus, after a brief review of labor history/legislation, and an examination of the “limits of the law” in the workers’ rights area, we advance a set of three modest reform proposals that we argue have the potential of being both achievable and impactful. They are: (1) increasing the use of mail balloting in NLRB representation elections, (2) implementing NLRB-sponsored “debates” to be held at neutral locations during labor representation campaigns, and (3) exploring the potential greater use of labor neutrality agreements