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Vol. 34, No. 4
Get PDFPublic Employee Speech: Answering the Unanswered And Related Questions in Lane v. Franks, by John E. Rumel
Recent Developmentshttps://scholarship.kentlaw.iit.edu/iperr/1099/thumbnail.jp
How Much Has the Supreme Court Changed Patent Law
Get PDFThe U.S. Supreme Court has decided a remarkable number of patent cases in the past decade, particularly as compared to the first twenty years of the Federal Circuit’s existence. No longer is the Federal Circuit “the de facto Supreme Court of patents,” as Mark Janis wrote in 2001. Rather, it seems the Supreme Court is the Supreme Court of patents. In the article at the center of this symposium, Judge Timothy Dyk of the Federal Circuit writes that the Supreme Court’s decisions “have had a major impact on patent law,” citing, among other evidence, the Court’s seventy percent reversal rate in Federal Circuit cases.
In this essay, I suggest that the Supreme Court’s effect on patent law has actually been more limited, for two reasons in particular. First, the Supreme Court’s recent decisions, though substantial in number, have rarely involved the fundamental legal doctrines that directly ensure the inventiveness of patents and regulate their scope. Second, the Supreme Court’s minimalist approach to opinion writing in patent cases frequently enables the Federal Circuit to ignore the Court’s changes to governing doctrine
Distributive Justice and Donative Intent
No full textThe inheritance system is beset by formalism. Probate courts reject wills on technicalities and refuse to correct obvious drafting mistakes by testators. These doctrines lead to donative errors, or outcomes that are not in line with the decedent’s donative intent. While scholars and reformers have critiqued the intent-defeating effects of formalism in the past, none have examined the resulting distribution of donative errors and connected it to broader social and economic inequalities. Drawing on egalitarian theories of distributive justice, this Article develops a novel critique of formalism in the inheritance law context. The central normative claim is that formalistic wills doctrines should be reformed because they create unjustified inequalities in the distribution of donative errors. In other words, probate formalism harms those who attempt to engage in estate planning without specialized legal knowledge or the economic resources to hire an attorney. By highlighting these distributive concerns, this Article reorients inheritance law scholarship to the needs of the middle class and crystallizes distributive arguments for reformers of the probate system
Stages of Constitutional Grief: Democratic Constitutionalism and the Marriage Revolution
No full textDo courts matter?Historically, many social movements have turned to the courts to help achieve sweeping social change. Because judicial institutions are supposed to be above the political fray, they are sometimes believed to be immune from ordinary political pressures that otherwise slow down progress. Substantial scholarship casts doubt on this romanticized ideal of courts. This Article posits a new, interactive theory of courts and social movements, under which judicial institutions can legitimize and fuel social movements, but outside actors are necessary to enhance the courts’ social reform efficacy. Under this theory, courts matter and can be agents of social change by educating the public and dislodging institutional inertia in the political branches.This Article addresses these competing visions of judicial capacity for social change in the context of the struggle for marriage equality. Specifically, it considers the extent to which courts were responsible for Americans warming to LGBT rights and coming to new understandings of family, examining evidence marshaled from court rulings, polling data, interviews with federal and state judges, interviews with state elected officials, legislative histories, and media accounts. The Article concludes that courts played a vital, role in fueling the marriage equality revolution. They were not, however, unbridled agents of social change because external forces were necessary to maximize the impact of courts’ actions
Modified Universalisms & The Role of Local Legal Culture in the Making of Cross-border Insolvency Law
No full textJudicial Discretion v. Predictable Outcomes: A Review of the 2016 Amendments to The Illinois Marriage and Dissolution of Marriage Act
Get PDFIn 2015, the Illinois General Assembly comprehensively amended the Illinois Marriage and Dissolution of Marriage Act (IMDMA). Illinois legislators cited a desire to increase predictable outcomes and to minimize adversarial litigation as primary goals for passing this overall to Illinois’s marriage and divorce law. This Comment evaluates how the amendments advance the stated legislative goals of increasing predictable outcomes and minimizing litigation while maintaining flexibility for fact-specific decision-making through judicial discretion. While the results are mixed, this Comment identifies changes in key provisions to which practicing attorneys should take note
The Patentability of the Crispr-Cas9 Genome Editing Tool
Get PDFThe biotechnology sector is rapidly changing with the increase in technological advancements. 1 The laws governing patent protection, specifically the laws governing patent eligibility, have also changed to adapt to these innovations.2 This paper focuses on the CRISPR-Cas9 technology, a genome editing tool that is changing the field of genetic engineering.3 As of November 2016, the U.S. Patent and Trademark Office has issued 42 patents on the CRISPR-Cas9 technology.4 This paper addresses the issue of whether patents claiming the core CRISPR-Cas9 technology can survive a 35 U.S.C. §101 (“§101”) subject matter eligibility challenge. The paper concludes that the CRISPR-Cas9 technology is patentable subject matter under §101. In reaching this conclusion, the paper will do the following: explain the CRISPR-Cas9 technology, compare it to genome editing tools that utilize ZFNs and TALENs, examine relevant §101 Supreme Court and Federal Circuit decisions, introduce the current Alice framework, and apply it to a hypothetical §101 invalidity dispute
\u3cem\u3eObergefell\u3c/em\u3e’s Ambiguous Impact on Legal Parentage
Get PDFFor more than thirty years, the central questions of the law of parentage have been when and to what extent determinations of legal parenthood should be based on biological relationship, marriage to a child’s biological parent, or functioning as or intending to be a parent. In Obergefell v. Hodges, the Supreme Court endorsed the claim that children whose parents are married are better off socially and legally than nonmarital children; its language could easily be taken to support legal rules that encourage or prefer childrearing within marriage. On the other hand, the Court’s argument assumes that the same-sex couple—both members—are in fact parents of the children, even though it is highly likely that only one adult is biologically related to child. The unspoken premise of the argument is that both are parents because both function as parents (and often, but not always, both participated in the decision-making process that led to the children’s conception and birth).
Today it is generally agreed that the law should protect relationships between children and adults who are committed to the children’s welfare, and who have taken on the responsibilities of parenthood; the debate is over the best way to protect children and to advance other social goals. This Article examines how the law in the various states balances claims to base legal parentage on biology, function, and marriage and how the Supreme Court’s same-sex marriage decisions are affecting that balance. It concludes that the decisions are having some impact in the lower courts, particularly by supporting recognition of the parental claims of adults who are not biologically related to children whom they have raised with their same-sex partners. However, these decisions are limited and cannot protect children and their functional parents adequately in all situations. Therefore, legislative solutions are still needed