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Clark Memorandum: Fall 2022
Get PDFA Certain Idea of BYU Building Bridges Between the Latter-day Saint and Jewish Communities Exemplary Scholars, Devoted Leadershttps://digitalcommons.law.byu.edu/clarkmemorandum/1071/thumbnail.jp
Thank You for Not Publishing (Unexamined Patent Applications)
Get PDFSince 2000, the U.S. Patent & Trademark Office (“PTO”) has published nearly all patent applications as they are submitted by applicants. Scholars and practitioners have praised this practice for providing timely notice of the potential legal rights the application may eventually cover. But maximizing timeliness and transparency in this way can also create significant costs, which may chill innovation and deter the development and funding of new research areas. This Article explores these often-unrecognized costs of publishing unexamined patent applications and proposes solutions that balance the benefits of early notice with the costs of patent system uncertainty. Published patent applications are essentially an initial guess of what the applicant hopes will become the boundaries of his intangible private property and a speculative attempt at demonstrating its possession. Even if they are never granted, these published applications occupy the patent idea space and can lead to examination and third-party search errors. Published applications can thus contribute to costly unpredictability in the patent system more broadly by preventing others from getting a patent and by creating a temporary cloud of uncertainty around what constitutes excludable private property. Fortunately, there are solutions. Shifting some of the public notice costs to the applicant can be used to potentially increase the quality of information in patent applications, and to reduce the number of lower quality filings. Alternatively, reform efforts can focus on providing the applicant and the PTO with more information in the early stages of examination, enabling them to make an informed choice about whether an application (or a portion thereof) is valuable enough to be published
Implications of Azar v. Allina Health Services on Rulemaking: How to Know When Notice and Comment is Required Under the Medicare Act
Get PDFThe Realities of Takings Litigation
Get PDFThis Article presents an empirical study of takings litigation against the United States. It reviews the cohort of takings cases filed against the federal government between 2000 and 2014, tracing each case from filing through final disposition. The result is a picture of takings litigation that is at odds with much of the conventional wisdom of the field. That conventional wisdom suggests that most takings cases will involve alleged regulatory takings; that the most intellectually challenging issues will arise within the field of regulatory takings; and, more broadly, that takings litigation will play an important role in the United States\u27 efforts to balance government regulation against individual liberty. This Article instead reveals that most takings litigation against the federal government involves alleged physical takings; that key recurring questions involve the selection of a method of takings analysis and the nature of property rights rather than the nuances of regulatory takings standards; and that takings litigation is only peripherally relevant to relationships between federal regulators and most regulated entities. These findings apply only to takings litigation against the federal government; takings litigation against state and local governments was not part of this study. Even with that significant caveat, these findings demonstrate the need to recalibrate the focus of takings theory and doctrine. At a general level, they call for heightened attention to alleged physical takings. More specifically, they call for more careful policing of the boundaries between methods of takings analysis, for more focus on the types of property rights that should receive takings protection, and for reexamination of the premise that almost all physical takings claims should be subject to categorical analyses
Balancing Precautions in Attacks Versus Precautions Againstnthe Effects of Attacks in Urban Armed Conflict
Get PDFProcedural Wrongdoing
Get PDFBoth the practice and the study of civil justice are rife with accusations of litigation “abuse.” Although it’s tempting to dismiss all this abuse talk as merely rhetorical, the concept of abuse in fact has deep roots in the normative structure of civil procedure’s doctrinal apparatus for regulating parties’ wrongful litigation conduct — their procedural wrongdoing. Prior accounts of procedural wrongdoing have maintained that parties abuse the civil justice system whenever they violate a procedural rule that’s calibrated to maximize the net benefits of litigation. Such accounts, however, ignore the many rules that define procedural wrongdoing not in terms of the effects of litigation conduct, but rather in terms of parties’ motivations, forbidding parties to act with certain motives or for certain purposes. According to these rules, which this Article labels motivation-sensitive restrictions, the very same litigation conduct can either constitute procedural wrongdoing or not, depending on a party’s motivations for engaging in it.
This Article provides a comprehensive analytical account of civil procedure’s motivation-sensitive restrictions. In doing so, it contends that the restrictions have ambiguous normative consequences for civil justice. On the one hand, the restrictions can foster a thin but nevertheless valuable form of procedural civic virtue, prodding parties to attend to important public values even as they pursue their own private ends through the civil justice system. On the other hand, precisely because they focus on parties’ subjective purposes, the motivation-sensitive restrictions risk inflaming public discourse about civil justice by inviting participants in policy debates to transmute their disagreements into moralized accusations of abuse or bad faith. We can try to mitigate these latter, discursive effects by emphasizing the relatively modest demands imposed by the motivation-sensitive restrictions — the fact that such rules require parties only to abjure certain illicit purposes rather than to become primarily public-regarding in their litigation behavior.
This Article’s account of civil procedure’s motivation-sensitive restrictions also sheds new light on leading theories of civil justice, which have largely glossed over the doctrinal infrastructure for addressing procedural wrongdoing. In contrast to the “private enforcement” model espoused by most civil procedure scholars, the motivation-sensitive restrictions (modestly) limit the purposes parties may pursue through civil litigation but make no systematic attempt to ensure that parties promote rather than subvert governmental regulatory policy, belying common portrayals of plaintiffs as stand-ins for the state — “private attorneys general.” But the restrictions also expose an underappreciated public dimension of prominent theories of private law, insofar as they curb party autonomy by requiring parties to attend directly to public values when taking certain actions during civil litigation. Considered in light of civil procedure’s motivation-sensitive restrictions, the civil justice system proves to be both more private and more public than how it’s generally understood
The Congruent Constitution (Part Two): Reverse Incorporation
Get PDFIn Bolling v. Sharpe (1954), a companion case to Brown v. Board of Education, the Supreme Court thought it “unthinkable” that the Equal Protection Clause would not apply to the federal government as well as the states and declared it “reverse incorporated” through the Due Process Clause of the Fifth Amendment. The Equal Protection Clause is the most familiar example of reverse incorporation, but it is neither the first nor the only provision of the Constitution that, by its terms, applies to the states alone, but which the Supreme Court has made applicable to the federal government through the Due Process Clause. The Court has, from an early period and throughout its history, systematically ignored the Constitution’s signals dictating to which level of government a provision applies. Aside from the Equal Protection Clause, the most important of these reverse incorporated provisions is the Contracts Clause—which was among the most litigated clauses of the nineteenth century— but there are other clauses that have been effectively reverse incorporated against the federal government as well. What has resulted is a congruent Constitution, a series of good government provisions that the Court has treated as universals rather than binding only the government identified in the Constitution. The Court has made little effort to justify its reverse incorporation decisions through anything more than the amorphous principle of “due process.” One consequence is that reverse incorporated provisions are substantively congruent, but textually discordant.
This Article reviews the history of reverse incorporation, most of which has not been told before. The Article argues that there is nothing “unthinkable” about the Constitution requiring different things of the states and the federal government, and that in the process of creating a congruent Constitution the Court has overenforced some provisions against the federal government and underenforced others against the states. Indeed, the Court’s congruence principle skews the choice of the substantive rule because it forces the Court to find a single rule applicable to both levels of government. The choice of a unitary rule may affect matters as diverse as mortgage relief in times of emergency and reparations for slavery. In the end, congruence is convenient for the Court, but it has blurred our federalism and altered our separation of powers. The latter point is critical: Through reverse incorporation, the Court has vastly expanded its own authority over Congress and the Executive, without the sanction of legislation or constitutional amendment under Article V.
This is the second part of a two-part study of the Court’s congruence principle. The first part appeared in the prior issue of the Brigham Young University Law Review. See Jay S. Bybee, The Congruent Constitution (Part One): Incorporation, 48 BYU L. REV. 1 (2022)