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The Virtuous Executive
Get PDFAs currently conceived, executive power law and scholarship detach the identity of the President from the powers and duties of the presidency. Whether an official was properly dismissed without cause, whether a pardon was validly issued, whether a foreign policy debacle rose to the level of an impeachable offense—the answers to all these questions are not supposed to depend on the President’s personal characteristics.
This Article argues that this veil of ignorance is incompatible with a correct understanding of Article II. To properly empower good Presidents and constrain bad ones, constitutional actors must take into account the President’s personal characteristics. Certain character traits—referred to in this Article as the executive virtues—play an essential role in the proper functioning of Article II and the broader separation of powers. These virtues can and should be encouraged by courts, Congress, and other constitutional actors.
In this Article, Rozenshtein describes the executive virtues, shows how they capture the original understanding of Article II, and argues for their contemporary importance in light of the presidency’s ever-increasing power and discretion. The Article offers a preliminary list of the main executive virtues—loyalty, honesty, responsibility, justice, inclusiveness, and judgment—and describes how the constitutional requirement of executive virtue can be operationalized. For example, the Article shows how questions of executive virtue were central in Trump v. Hawaii (the travel-ban case), offer a revisionist defense of the impeachment of Bill Clinton, and argue in favor of more control over presidential primaries by party elites. The Article conclude with the observation that, as recent history demonstrates, the lack of presidential virtue can constitute a full-blown constitutional crisis
Keep Your Hands Off My Fingerprints: How State Constitutionalism Can Stop On-Site Fingerprinting Dragnets
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Hello, World? Domestic Software Patent Protection Stands Alone Due to Uncertain Subject Matter Eligibility Jurisprudence
Get PDFIn the last sixteen years, software-related inventions have encompassed the majority of all utility patents issued in the United States. Further, studies estimate that spending within the global information technology market will grow to $4.6 trillion in 2023, as industries such as data security, cloud computing, and artificial intelligence continue to innovate and expand at alarming rates. Needless to say, software is a crucial and ever-expanding industry for the global economy. In a series of recent cases, however, the Supreme Court injected unpredictability into the patenting of software and computer-implemented inventions by overhauling the long-standing patentable subject matter doctrine.
Embodied in § 101 of the Patent Act, the “patentable subject matter” requirement for patent protection refers to the basic substantive categories of invention that Congress and the courts have considered to be appropriate for patenting. The Supreme Court’s recent jurisprudence has massively expanded subject matter eligibility restrictions under § 101, thereby making it more difficult to obtain patent protection for certain types of inventions—notably, software inventions. As software patents have become more difficult to obtain and even more difficult to protect, the current patentable subject matter jurisprudence disparately harms small-scale inventors and startups who are reliant on the patent system to obtain crucial private capital from investors to support further innovation. Such issues are made glaringly apparent when comparing the domestic patentable subject matter jurisprudence to that of other technologically developed foreign nations, whose patent systems are more predictable and rewarding for software inventors.
The Supreme Court’s recent pivot has been met with substantial criticism by members of the intellectual property community across the political spectrum. Politicians, academics, district court and Federal Circuit judges, inventors, and former United States Patent and Trademark Office (USPTO) Directors have criticized the Supreme Court’s framework and have urged Congress to act. Sparked by a recent denial for rehearing en banc wherein the Federal Circuit was evenly divided on the contours of § 101, followed by the Supreme Court’s refusal to grant certiorari, senators and prominent law organizations pitched legislative proposals on the Senate floor to abrogate the Supreme Court’s framework and better protect emerging technologies, including software.
This Note pushes the need for legislative revision to counteract the negative effects of the Supreme Court’s recent jurisprudence on the software industry and better align the United States with consistent global standards. Specifically, this Note thoroughly analyzes the history of the patentable subject matter doctrine, domestic proposals aimed at dismantling the current jurisprudence, and the way foreign patent systems handle patent eligibility restrictions for software inventions, to argue that domestic software innovation is disparately and negatively harmed by the Supreme Court’s evolving framework for evaluating subject matter eligibility. Software innovation is paramount to the development of modern society, and thus the patent system should stand to support the patentability of software inventions, rather than hinder it