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Three-Judge District Courts, Direct Appeals, and Reforming the Supreme Court’s Shadow Docket
Get PDFThe “shadow docket” is the term recently given to a long-standing practice of the U.S. Supreme Court, in granting or denying requests for stays of lower court decisions, often on a hurried basis with rudimentary briefing and no oral argument, and with little if any explanation by the Court or individual Justices. Recently, the practice has received unusual attention inside and outside the legal community, because of its seemingly increased use by the Court in high-profile cases, with the emergency orders often sought by the federal government or state officials. Scholars have advanced various reforms to ameliorate the perceived problems of the shadow docket. One suggestion is to require suits against federal statutes and policies to be litigated before a specially convened three-judge district court, perhaps in the District of Columbia, with a direct appeal to the court. Supporters argue that this process would result in more consistent decision-making by the Court and lower courts. This Article critically examines a suggested reform. As its supporters acknowledge, the reform would largely replicate the procedure Congress established from 1937 to 1976 for challenges to the constitutionality of federal statutes. Congress abolished the special procedure in 1976, given opposition from the federal judiciary and others, in part due to it being perceived as unnecessary, and burdening the Court with mandatory appeals. The Article first evaluates the recent suggestion, considering the prior experience, an evaluation that includes an empirical analysis of Supreme Court decisions under the earlier process. It then considers proposals to establish exclusive jurisdiction in the federal courts in the District of Columbia, which would reduce forum shopping but deprive the court of the benefits of percolation of multiple suits. The Article concludes that the suggested reform could ameliorate some of the problems of the shadow docket, but should be undertaken with an appreciation of the decidedly mixed past experience with similar institutional arrangements
E-Commerce in Saudi Arabia: an Analysis of the Law and Practical Challenges for Businesses and Consumers
No full textE-commerce between businesses and consumers has developed tremendously in recent years, which led to the need to develop legislation to keep up with technical, infrastructural and legal changes. Therefore, countries have issued the necessary legislation to help regulate e-commerce activity and provide legal protection for the contracting parties.
Noting this significance, the Saudi Arabian legislature issued the E-Commerce Law in 2019 as the first e-commerce law in Saudi Arabia that regulates the contractual relationship between a service provider and a consumer in Saudi Arabia. This dissertation is one of the first to complete an in-depth, comprehensive analysis of the many significant changes occurring in law and policy in Saudi Arabia related to e-commerce over the past few years. In addition to describing the relevant history, laws and policies underlying e-commerce in Saudi Arabia, it also examines and analyzes the service provider\u27s obligations in the pre-contract stage, regarding electronic advertisements and the disclosure of contractual information before committing to an electronic contract. In addition, this dissertation examines and analyzes obligations of the service provider and the consumer at the implementation stage of the electronic contract. It also examines, through in-depth interviews, the current challenges facing the e-commerce market development in the Kingdom of Saudi Arabia that relate to practical and logistical issues. The research also includes an empirical survey designed to identify on-the-ground challenges that Saudi Arabian consumers face with e-commerce transactions
Strengthening Our Intuitions About Hacking
Get PDFThe computer trespass analogy has served us reasonably well as a basis for cybersecurity policies and related anti-hacking laws, but computers, and our uses of them, have changed significantly in ways that stretch the computer trespass metaphor beyond usefulness. This Essay proposes an approach to expanding and strengthening our intuitions about computer security that accounts for new computing paradigms, giving courts and lawmakers additional tools for interpreting and drafting effective anti-hacking laws.
This Essay argues that many new and existing computer use scenarios leave courts unsure how existing anti-hacking laws might apply, increasing the possibility of under- or over-inclusive policies as well as uneven applications of these laws across jurisdictions. Improving our common understanding of computer security challenges can help courts reason more soundly about the laws and policies that apply to these challenges and can also help lawmakers draft cybersecurity legislation that more accurately reflects their policy goals. This Essay develops a new model for thinking about problems in cybersecurity law by borrowing concepts from the field of vulnerability theory with the aim of augmenting our existing computer trespass theories
Research on renewable energy project opposition selected for Environmental Law and Policy Annual Review Award
Get PDFA publication co-authored by Indiana University Maurer School of Law Dean Christiana Ochoa and 2021 Law School alumna Kacey Cook has been selected to appear in the 17th edition of the Environmental Law and Policy Annual Review.
“Deals in the Heartland: Renewable Energy Projects, Local Resistance, and How Law Can Help” was authored by Ochoa, Cook, and University of Minnesota Law School third-year student Hanna Weil and was published in January 2023 in the Minnesota Law Review
How the Supreme Court Ghosted the PHOSITA: Amgen and Legal Constructs in Patent Law
Get PDFThis Essay is an invited response to The Ghost in the Patent System: An Empirical Study of Patent Law’s Elusive “Skilled Artisan,” by Professors Laura Pedraza-Fariña and Ryan Whalen. In their piece, Pedraza-Fariña and Ryan Whalen offer an empirical study and use it to argue for a new conception of the Person Having Ordinary Skill in the Art (“PHOSITA”), patent law’s nod to the “reasonable person” construct.
As Professors Pedraza-Fariña and Whalen suggest, the PHOSITA should be understood as a crucial concept in patent law, warranting more scholarly attention. Pedraza-Fariña and Whalen provide that attention. They assert, based on an original empirical analysis, that greater judicial engagement with the PHOSITA concept has not occurred—courts have instead continued to treat the PHOSITA construct superficially, and as a monolith. They offer two bases for this failure: (1) the lack of reconciliation between the empirical PHOSITA construct versus a set of normative aspirations that could be attributed to it; and (2) the failure of the courts to deploy the PHOSITA with a coherent set of normative commitments in mind. The antidote, say Pedraza-Fariña and Whalen, is to subdivide the monolithic PHOSITA into a set of doctrine-specific PHOSITAs, each formulated according to a blend of empirical and normative aspects tuned to the particular doctrine at issue. They summarize their prescriptions in a table that maps out the empirical and normative dimensions to these respective doctrine-specific PHOSITAs.
In this Response Essay, we offer two primary observations. First, in its most recent opinion on patent law—released after Pedraza-Fariña and Whalen’s piece was published—the Supreme Court in Amgen v. Sanofi displayed no interest in engaging with the PHOSITA construct and its subtleties. To the contrary, it utterly “ghosted” the ghost of the patent system (if we may), resolving a complex biotechnology enablement case about antibodies by wallowing about in nineteenth century patent opinions dealing with nineteenth century inventions (of course) such as the telegraph, the incandescent light, and starch glue for wood veneer. Instead of taking the opportunity to refine the PHOSITA construct along empirical and normative lines, as Pedraza-Fariña and Whalen advocate, the Court treated the PHOSITA as a vaporous non-entity barely meriting mention. If there ever was a trend toward elucidating the PHOSITA’s technical capacities and using them to drive case outcomes, the Supreme Court’s Amgen decision has brought that trend to a crashing halt—perhaps unwittingly and sub silentio, but a crashing halt nonetheless.
Second, while we align with Pedraza-Fariña and Whalen’s plea for acknowledging that normative aspirations undergird the PHOSITA construct, and we agree that those aspirations may supply a template for explaining and weighing empirical aspects of the construct, we part company with them when it comes to prescriptions. In particular, we are not convinced that dismembering the PHOSITA and reconstituting it as three separate constructs will improve decision making in patent cases. We contend that the enablement and obviousness PHOSITAs are the same construct and ought to stay that way. This is both a descriptive and normative argument, and it underscores that Pedraza-Fariña and Whalen’s proposals are not normatively neutral, even though the authors profess not to be espousing any “specific normative baseline” for critical doctrines such as obviousness
Hidden Value Transfers in Public Utilities
Get PDFThis Article describes strategies vertically integrated electric utilities use to transfer value from rate-regulated affiliates to non-rate regulated affiliates. First, regulated utilities directly subsidize non-regulated affiliates by entering into favorable contracts with affiliates that participate in competitive markets. These contractual value transfers include favorable purchase agreements such as long-term contracts to buy coal at above-market prices and cross-affiliate debt guarantees that allow non-rate regulated affiliates to borrow at a discount. Second, utilities receive regulatory authorization to pass costs incurred by their non-rate regulated affiliates onto captive ratepayers. Examples of regulatorily approved value transfers are fuel adjustment clauses that authorize recovery of fuel costs from captive ratepayers and self-insurance that forces ratepayers to bear wildfire risk and transmission outages (even when insurance requirements are supposed to protect them from those risks). Third, utilities make investment decisions in rate-regulated markets that favor their non-rate regulated affiliates. For example, utilities may invest (or refuse to invest) in transmission capacity to protect the market power of their generation assets—not to reduce energy prices, improve grid reliability, or connect to low-carbon energy sources. Utility value transfers thus make the grid less efficient, less reliable, more difficult to supervise, and more resistant to policy instruments that should encourage decarbonization
Ne Nya Sexpuritanerna
Get PDFThis story is based on Sweden, where I conducted a legal ethnography that included interviews with several people selling sexual services there. Many of my observations are included in this story, and where indicated, I have included data shared with me during semi-structured interviews with my research participants. Where statements about Oceania are not directly cited, the intention is to provide a generalized account inspired by Swedish politics and culture. The only observation from this story that is fictionalized is Jasmine and Rebecca’s relationship to each other and their encounter on the subway station. They represent two of my informants, and they have not met each other. All other observations about the Oceanic society reflect my impressions of Swedish society and data that I gathered there
Meet our new faculty: Valena Beety
Get PDFYou’ve read about some of the amazing students we have starting with us next week. Now we’ll introduce you to some of the new faculty who have joined us over the summer. First up is Valena Beety, the Robert H. McKinney Professor of Law. Prof. Beety was most recently Professor of Law and Deputy Director of the Academy for Justice at theArizona State University Sandra Day O’Connor College of Law
