Volume 53, Issue 3

Not a Free Speech Court

Two of the most high-profile decisions in the Supreme Court’s October 2010 term were clear victories for freedom of speech. In Snyder v. Phelps, the Court considered whether the First Amendment protects the right of protestors to go to military funerals to express anti-gay messages. Matthew Snyder was a Marine who died in military service in Iraq. The members of the Westboro Baptist Church went to his funeral and, as is their practice, held up signs that condemned homosexuality and tolerance for it. Snyder’s father sued the demonstrators for intentional infliction of emotional distress and intrusion upon seclusion. A jury in federal district court ruled in favor of Snyder and the judge upheld an award of both compensatory and punitive damages. More

Isaac Marks Memorial Lecture | View PDF

An Economic Analysis of Patent Law’s Inequitable Conduct Doctrine

In recent years, patent law’s inequitable conduct doctrine has attracted considerable attention from judges, legislators, patent lawyers, and commentators. This trend culminated most recently in Therasense, Inc. v. Becton, Dickinson & Co., an en banc decision from the Federal Circuit that revised certain aspects of the doctrine. Building on the work of other scholars, this Article proposes an instrumental view of the doctrine as, ideally, a tool for inducing patent applicants to disclose the optimal quantity of information relating to the patentability of their inventions; it then presents a formal model of the applicant’s choices in deciding how much information to reveal. More

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Extraneous Liability in Antitrust

Whether an act gives rise to liability should turn on its tendency to yield particular outcomes rather than on its ultimate effect, which may have resulted from extraneous factors beyond the actor’s control and foresight. This principle is firmly ingrained in jurisprudence, yet antitrust law violates this principle in a number of unappreciated ways. The law evaluates commercial conduct based not on the nature of the challenged behavior to bring about particular results, but on the stochastic confluence of extraneous factors. This Article explores the phenomenon of extraneous liability in antitrust law, finding fault with several important features of the modern antitrust system. Nevertheless, this Article accepts a legitimate role for extraneous factors in antitrust analysis. To the extent that such forces are both reasonably identifiable and at least somewhat determinate ex ante, they may appropriately affect the legality of conduct, the future commercial impact of which depends on those forces.

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The Tea Party Movement and the Perils of Popular Originalism

The Tea Party movement presents something of a curiosity for constitutional theory because it combines originalist ideology and popular constitutionalist methods. Like minotaurs, werewolves, and other half-man, half-animal hybrids of myth and legend, the Tea Party’s hybrid of originalism and popular constitutionalism serves to expose the limitations of both sources upon which it draws. Although originalists assert that interpreting the Constitution according to its original meaning would take politics out of constitutional law, the Tea Party movement shows that originalism also provides a powerful political rhetoric. Moreover, while popular constitutionalists assert that democracy would be advanced by empowering the people to effectuate their constitutional understandings through ordinary politics, the Tea Party movement shows that when a popular movement advances a narrow, nationalist understanding of the Constitution, popular constitutionalism can also serve to restrict popular democracy.

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The Role of Speculation in Facial Challenges

In recent years, the U.S. Supreme Court has been reluctant to respond favorably to constitutional challenges brought on the face of newly enacted state statutes. The facial challenge device has been used to challenge some of the most controversial legislation enacted in the states, including state-imposed voter identification requirements, new state primary election systems, and, recently in Arizona, immigration-related statutes. In this Article, I argue that the Court’s hesitancy to uphold facial challenges is specifically based on a reluctance to rely on speculation to defeat an untested state statute. I suggest that a direct focus on speculation in the constitutional analysis is useful, and I ultimately explore Arizona’s two controversial immigration-related statutes—and the facial challenges brought against them—to illustrate a role for speculation in facial challenges. Arizona’s employer sanctions statute was recently upheld by the Supreme Court on a facial challenge. The constitutionality of Arizona’s Senate Bill 1070 will likely be before the Court during its 2011–2012 term.

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Perry v. Schwarzenegger and the Future of Same-Sex Marriage Law

In Perry v. Schwarzenegger, Chief Judge Vaughn Walker held that Proposition 8—an amendment to the California Constitution that prohibits same-sex couples from marrying—violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. To date, legal experts have claimed that although Judge Walker’s factual findings may be novel and significant, his legal analysis is familiar and not likely to have a significant impact on the future of same-sex marriage law. This Article argues that the common wisdom about Judge Walker’s ruling is misguided, because it overlooks novel aspects of Judge Walker’s legal analysis that have the potential to make valuable contributions to the development of same-sex marriage law, in this case and others. By building upon passages from Judge Walker’s ruling, the Article develops three new challenges to the constitutionality of laws that prohibit same-sex couples from marrying. More

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Pornography and Privacy in Plain View: Applying the Plain View Doctrine to Computer Searches

With the vast majority of American households owning a computer, technology is a permanent fixture in everyday life. From boardrooms to dorm rooms, computers are capable of storing and manipulating data in previously unimaginable ways. This technology is also changing the methods by which crimes are planned and executed. As a result, hard drives and other memory devices often provide evidence to government agents during their investigations. Computer searches present challenging constitutional issues because the Framers drafted the Fourth Amendment to define the boundaries of traditional physical searches. As reflected by a federal circuit split and several wildly unpredictable court decisions, a complex issue arises when, during a warranted computer search, the government relies on the plain view doctrine to seize digital evidence. This Note examines the plain view doctrine’s proper scope and application in computer searches. Although the Fourth Amendment was originally created to define the parameters of lawful, physical searches, its principles and exceptions must also broadly extend to computers. A warrant’s language—not categorical restrictions—should ultimately define the permitted scope of plain view seizure.

Note | View PDF

Why the Internet Isn’t Special: Restoring Predictability to Personal Jurisdiction

Two decades ago, the advent of the Internet triggered an uproar in personal jurisdiction doctrine because of the difficulty of analyzing electronic contacts. Since that time, courts and commentators have struggled to devise a solution to the supposed problem of evaluating an electronic contact. Courts have developed an array of different approaches, and commentators have advocated for a variety of reforms. The result is a tangled web of analyses that actually undermines a key principle underlying personal jurisdiction: predictability. This Note attempts to restore predictability to the doctrine by clarifying why the Internet should not alter personal jurisdiction analysis. By classifying cases based on fact patterns, this Note illustrates that traditional personal jurisdiction analysis properly functions in actions involving the Internet. The taxonomy also pinpoints a narrow class of Internet cases where courts consistently do not find jurisdiction. This is not a sign that the doctrine is not working in these cases, but rather an indication that exercising jurisdiction in such instances does not comport with due process.

Note | View PDF

Cutting Class: Why Arizona’s Ethnic Studies Ban Won’t Ban Ethnic Studies

In 2006, Mexican-American labor activist Dolores Huerta told an assembly of Tucson High School students that “Republicans hate Latinos.” This remark set in motion a prolonged effort by then-Arizona State Superintendent of Public Instruction Tom Horne to rein in perceived racist and politically charged teaching in Tucson Unified School District’s Mexican-American Studies Program. Four years later, the Arizona State Legislature enacted HB 2281, a bill that proponents claimed would give the Superintendent authority to withhold a significant amount of funding from Tucson Unified School District if it refused to stop teaching Mexican-American Studies. This Note will demonstrate that the ethnic studies law is in fact much narrower than its proponents have suggested, so much so that it will not even apply to Tucson’s Mexican-American Studies Program. More

Law and Policy Note | View PDF