18265 research outputs found
Sort by
Decisionmaking in Patent Cases at the Federal Circuit
Get PDFThis Article provides the results of an empirical study assessing the impact of panel composition in patent cases at the Federal Circuit. The dataset includes 2675 three-judge panel-level final written decisions and Rule 36 summary affirmances issued by the Federal Circuit between January 1, 2014 and May 31, 2021. The study informs the longstanding debate concerning whether the Federal Circuit is succeeding as a court with nationwide jurisdiction in patent cases and provides insight into judicial decisionmaking more broadly. And several results show that many of the worst fears that commentators have about the Federal Circuit appear overstated or untrue.
For example, the results show that, in the aggregate, patent-related ideology plays a role in voting and decisionmaking at the Federal Circuit—that is, some judges are more likely to vote in a pro-patentee direction than others. This patent ideology is not explained by political affiliation, nor is it significantly explained by the judges’ prior patent-related experience. The former observation undercuts the assumption made by scholars that if political affiliation does not predict voting in an area of law, then that area of law must either be clear and binding, or there must be a near-consensus about the appropriate principles.
The results also indicate that decisionmaking at the Federal Circuit is influenced by panel effects, which refer to changes in judges’ voting patterns based on the preferences of the other judges on the panel. The study exemplifies how prevalent panel effects can be in an area of law, considering they persist in patent cases at the Federal Circuit despite several reasons to believe panel effects may not exist.
This study also compares decisionmaking in precedential, nonprecedential, and summarily affirmed cases and finds that voting and decisionmaking is most influenced by patent ideology in precedential cases. Prior studies of judicial decisionmaking in other circuits typically focus exclusively on precedential cases, and thus must be interpreted in view of that limitation.
Furthermore, according to the results, judges do not appear to use summary affirmances as a tool to systematically bury cases opposing their patent ideology. To the contrary, decisionmaking in summarily affirmed cases is largely, if not entirely, independent of patent ideology. And judges are not more likely to summarily affirm cases coming out against their patent ideology, when considered as a fraction of the total number of opportunities to issue a summary affirmance.
The results also show that judges tend to write a disproportionate share of opinions favoring their patent ideology. As a result, there is greater risk than previously recognized that the law will develop to reflect the idiosyncratic preferences of a few judges and that opinions will be written ideologically
Protecting Minority Representation in an Era of Political Polarization and the Hollowing Out of Voting Rights Protections
Get PDFThe United States Supreme Court has hollowed out various voting rights protections, leaving all voters—minority and nonminority—less protected in a politically polarized America. Surprisingly, the Court has continued to protect representation for minority race voters who live in racially polarized areas. However, minority race voters risk losing that protection, typically provided through majority-minority districts authorized under the Voting Rights Act, if they build cross-racial coalitions with their neighbors. Under the Court’s interpretation of the VRA, cross-racial voting coalitions may be less protected than local majorities comprised of a single race of voters. The loss of such protection could leave their representation subject to the mercies of politically polarized national and state legislatures that may wish to, and may be allowed to, silence their voices and those of their cross-racial political allies. If America wishes to guarantee the voices of minority voters are heard when those voices are part of cross-racial coalitions, courts may need to revisit how minority political voices can be protected. For example, they may do so broadly by reconsidering the reach of the Fifteenth Amendment’s bar on race-based limitations on the right to vote or somewhat narrowly by rethinking the viability of
voting structures—such as multimember districting—that were largely abandoned when used in the past to limit representation of minority voters but could be repurposed to help those voters have their voices heard today
The Brain Is in Your Court: Evaluating Intellectual Property Infringement Audience Through the Lens of Neuroscience
Get PDFTo protect creations of the mind, the law needs to understand the mind. Thankfully, the rapidly emerging field of neuroscience provides an invaluable glimpse into the inner workings of the human brain. Now that scientific instruments provide a window into the living brain, it is time to reexamine the way intellectual property law decides the outcomes of infringement lawsuits.
Critically examining neuroscience in the context of the law helps to answer the most fundamental question in an intellectual property lawsuit: Was there infringement? A judicial hesitancy to understand the thought processes of artists and creators results in relying on the viewpoint of an expert, consumer, or ordinary reasonable person. This Note focuses, in turn, on the primary audience for determining infringement in patent, trademark, and copyright litigation. A brief overview of the field of neuroscience and scientific technologies facilitates the later discussion on how neuroscientific advancements can fill in the gaps for each type of intellectual property’s audience, which is key to determining infringement. Further, it addresses the hurdles of this interdisciplinary endeavor by acknowledging cost considerations and fundamental differences between neuroscience and the law.
This Note ultimately advocates that even the seemingly most well-rounded approach to audience in deciding infringement lawsuits stands to benefit from the consideration of neuroscientific understandings. Exclusively relying on either an expert, consumer, or ordinary reasonable person fails to ascertain key elements within patent, trademark, and copyright law. Neuroscience’s unique insight into the creative process can revive the long-diminished role of patent law’s person having ordinary skill in the art. Understanding the consumer brain facilitates a better utilization of the judicial test to discern the likelihood of confusion in trademark infringement suits. Finally, neuroscientific understandings of the expert brain can remedy the circuit split on determining substantial similarity in a copyright infringement suit. Each proposed method of integrating neuroscience into intellectual property adheres to the ultimate goal: to protect creations of the mind. It is time to give neuroscience its due diligence by placing the brain in the courtroom
Slavery.AI
Get PDFThe artificial intelligence market is swarming. Supercharged start-ups, global tech giants, and increasingly algorithmic governments target diverse use cases with new and stunningly innovative AI applications coming online every day. Where people are the computational subjects of those algorithmic machinations, however, there is no law, present or effective, to protect them against great and propagating harms. Consequently, people become data production units, the commoditized of the Data Industrial Complex and unfree, unpaid inputs to AI production.
This Article shares a new and provocative vision. It theorizes that unregulated AI systems and uses are giving rise to an emergent form of modern slavery: Slavery.AI. The Article examines the three structural systems of power that were responsible for historical chattel slavery and are at work today in Slavery.AI. Against these interdigitating power structures, the evolution of two legal concepts have brought forth, respectively, people-as-data-as-property and, ultimately, as inputs to AI production, and modern slavery in all its hideous permutations. At the confluence of these power systems and trends, Slavery.AI is emerging, as defined, theorized, and exemplified here. The Article crafts a crucible in which to test its theory of Slavery.AI against the universal characteristics of systems of slavery and demonstrates how those characteristics sounding in property and in the abuse of power through cooptations of the rule of law are firmly entrenched or on their way to being so. This illustrated proof of concept holds. It also reveals that there may be yet be opportunities for responsible leaders to save freedom and to emancipate people from Slavery.AI
Battle of the Lands: The Creation of Land Grant Institutions and HBCUs – Fostering a Still Separate and Still Unequal Higher Education System
Get PDFIn HBCU culture, the Battle of the Bands is a competition between school marching bands to determine the “best of the best”. It is a cultural celebration that symbolizes friendly competition and showcases students’ pride in their school. Unfortunately, since their inception, Historically Black Colleges, and Universities (“HBCUs”) have been battling for legitimacy in America’s higher education system. From the beginning, HBCUs were often the only place African Americans could receive an education. Today, HBCUs are known for creating some of the most successful Black graduates and serve as a safe haven for Black students seeking an education in an environment with people who look like them. But public HBCUs from the beginning have been underfunded, intentionally shut down, and negatively affected by state and federal government legislation. This Note tracks the founding of HBCUs. Next, this Note argues that the original purpose of HBCUs was never to be equal to white institutions but to keep Black people out of state land-grant institutions that were founded to train poor whites to create a middle class of managers. Through evaluating the Supreme Court’s education jurisprudence and legislative history, this Note concludes by suggesting new ways to ensure that all public HBCUs are properly funded to give the institutions a fighting chance in continuing to educate America’s youth
The Witch-Hunt for Spies - A Critique of the China Initiative and National Security’s Outsized Influence in Equal Protection Analysis
Get PDFThe U.S. Government has increased its focus on Chinese espionage in the last decade in a randomized and unpredictable way. Primarily targeting Chinese scientists and academics, the “China Initiative” has resulted in widespread targeting of individuals based on their race, ethnicity, and national origin. The program was formally terminated and said to now be a part of a broader approach to nation-state threats. However, the outcomes and effect of the economic espionage charges in the last 15 years has greatly skewed towards prosecuting Chinese individuals irrespective of the name of the program. While protections typically exist in the law to protect against targeting based on race, ethnicity, or national origin, the Government has consistently prevailed against civil rights claims tangentially related to national security. The Note examines the China Initiative, proposes a need to rewrite strict scrutiny analysis in Equal Protection Claims related to national security, and calls on civil rights advocacy groups to combat the new, more expanded economic espionage act as a violation of the Fourteenth and Fifth Amendment as discrimination under national origin and race
Prisons as Laboratories of Antidemocracy
Get PDFPrisons are woefully ineffective as tools to protect society from violence and exploitation, yet America’s prison population exploded in the twentieth century. On the outside, this devastated Black communities, Black opportunities, Black economic power, and Black voting power. Yet a similarly insidious development came from inside prison walls: prison administrators honed antidemocratic techniques for constraining and oppressing incarcerated persons, techniques that would later be deployed against the ostensibly free population. Jeffrey Bellin’s Mass Incarceration Nation provides a robust analysis of the ways state and federal policies have combined to create an explosion in the scope of American prisons in the late twentieth century. This Book Review explores how prisons have served as laboratories of antidemocracy to perfect tactics to suppress access to information, protest, and bodily autonomy
Resistance Proceduralism: A Prologue to Theorizing Procedural Subordination
Get PDFSeveral legal scholars have discussed the role of slavery within their own family histories and a growing number of scholars are exploring the successes and strategies of lawyers and Black litigants in freedom suits and other litigation in the United States antebellum South. I build on these literatures with a focus on procedure. In this Article, I analyze procedures involved in a few of my ancestral and personal experiences. Some of the experiences with process involved litigation to be free from slavery while other experiences did not explicitly involve any law. But they all involved process.
Engaging in this practice—marshaling procedure to increase justice for marginalized groups and to decrease procedural subordination and white supremacy—is a form of what I am calling resistance proceduralism. I draw from engagement with procedures, such as requirements to file a lawsuit or for bonds and securities, in my ancestors’ freedom suits—lawsuits fighting for their freedom from slavery—to query whether some marginalized litigants, and even people who were enslaved at the time, may have engaged in resistance proceduralism
