UCLA Law Review Volume 56, Issue 1


Heightened Enablement in the Unpredictable Arts

A bedrock principle of patent law is that an applicant must sufficiently disclose the invention in exchange for the right to exclude. Essential to the disclosure requirement is enablement, which compels a patent applicant to enable a person having ordinary skill in the art (PHOSITA) to make and use the full scope of the claimed invention without undue experimentation. Enablement may be insufficient when the applicant claims an invention broadly with a dearth of supporting data or examples. This is problematic in unpredictable fields like chemistry because a PHOSITA often needs a specific and detailed teaching in order to practice the full scope of the claimed invention. Yet the current patent examination framework allows a patentee to obtain a broad claim encompassing millions of compounds enabled by a trivial amount of supporting disclosure. Such broad patent scope can have a chilling effect on other scientists who are seeking to make and use the claimed invention while the inventor does not know how to do so. In an effort to bridge the disconnect between patent law and the experimental sciences, I propose a new approach to establishing the prima facie case of nonenablement for patent applications in the unpredictable arts. After examining the PHOSITA’s role in the enablement analysis, I elucidate the problems with the current framework for the enablement inquiry, propose a new framework, and explain why it mitigates problems with the current framework. I conclude by discussing some of the concerns raised by the proposed framework and explain how the proposed approach mitigates these concerns.

The Case for Comparative Fault in Compensating the Wrongfully Convicted

The issue of compensating the wrongfully convicted has recently been thrust into public awareness. Over one hundred and fifty people have been exonerated through DNA evidence since 2000. Only half have received compensation for their time behind bars. While twenty-two states have enacted statutes that provide a direct legal right to compensation, these statutes require victims of wrongful conviction to jump substantial hurdles and often provide inadequate compensation even then. Moreover, two-thirds of these statutes bar compensation entirely if the claimant contributed to the conviction in some way. This Comment proposes that a claimant’s contributory conduct should be a factor in determining the quantum of damages rather than per se eligibility. Reducing compensation in proportion to a claimant’s fault better serves the efficiency and fairness-based justifications that underlie statutory compensation. It also tracks the broader shift in tort law from contributory negligence to comparative fault. The wisdom of a comparative fault approach to compensation statutes has been recognized and applied by other countries. This Comment argues that a similar framework should be adopted in the United States.

Freeing Exercise at Expression's Expense: When RFRA Privileges the Religiously Motivated Speaker

Congress and more than a dozen states have statutorily expanded the scope of religious liberty beyond that provided for in the U.S. Constitution. These Religious Freedom Restoration Acts (RFRAs), modeled closely after the federal progenitor, afford heightened protection to religious objectors by mandating that laws substantially burdening religious exercise pass strict scrutiny. In this Comment, I analyze how courts should address claims for exemption under religious freedom statutes when the religious exercise to be accommodated is speech. When applied to laws that are otherwise valid under a less rigorous standard, RFRAs discriminate in favor of religiously motivated speech. The literature has largely focused on whether this privilege afforded to religious viewpoints violates establishment and free speech principles. I aim to show that although RFRAs’ speaker-based privilege is constitutionally defensible, the government nonetheless has a compelling interest in promoting equality in speech opportunities among speakers. In considering requests for accommodation of religiously motivated speech, the government should assert its countervailing interest in enforcing the law. However, not all religious exercise that can be conceptualized as speech would yield harms of speaker inequality and marketplace distortion if accommodated. I develop a heuristic to guide courts in applying the government’s compelling interest in expressive equality by identifying situations in which accommodation would either advantage religious viewpoints in public debate or foster religious communities. The following discussion of these issues adds a new perspective to the debate concerning RFRAs’ application to speech, and strikes a balance between religious liberty and expressive equality.

The Value of a Promise: A Utilitarian Approach to Contract Law Remedies

This Article critically examines the applicability of law and economics, or wealth maximization theory, to contract law by examining this theory from within the consequentialist framework of utilitarianism. Roughly speaking, wealth maximization theory is a consequentialist theory of justice holding that those actions that increase wealth are just and should be allowed, whereas those actions that decrease wealth are unjust and should be forbidden. This theory has been used not only to support such controversial doctrines as efficient breach, but also to inform the way that many scholars and judges think about remedies for the breach of contract. Although the growth and acceptance of wealth maximization theory has been rapid since it was first formalized several decades ago, it is by no means uncontroversial, having been subject to constant attack since its inception from many who, operating outside of consequentialism, have criticized the normative foundations upon which wealth maximization theory rests, expressing their dismay over a theory that encourages the breaking of a solemn oath in the name of efficiency. Until now, however, previous scholarship has not critically examined this theory from within the consequentialist framework to see whether it, in fact, actually maximizes wealth. This Article provides that approach. Unlike other scholarship in this area, this Article does not challenge the normative foundations upon which wealth maximization theory rests, but rather argues that, on its own terms, this theory fails to maximize wealth within contract law. This is because wealth maximization theory is a fundamentally utilitarian theory that depends upon, and derives its legitimacy from, the utilitarian concept of value. Notably however, wealth maximization theory often prevents value from being maximized in the name of wealth. This insight has profound implications, suggesting not only that the continued application of this theory to contract law ought to be seriously questioned, but also that the way both consequentialists and nonconsequentialists think about remedies in contract law may need to be rethought. Indeed, this insight may even help reconcile these divergent theories within contract law because, as this Article suggests, the best way to achieve the consequentialist end of utility maximization is often through the nonconsequentialist means of contract enforcement, including the enforcement of liquidated damages clauses and specific performance.

The iPhone Meets the Fourth Amendment

Under the search incident to arrest doctrine, police may search the entire body and immediate grabbing space of an arrestee, including the contents of all containers, without any probable cause. Because almost all traffic infractions are arrestable offenses, police have enormous opportunity to conduct such searches incident to arrest. In the near future, these already high-stakes searches will become even more important because millions of drivers will not only possess containers that hold a few scattered papers, such as wallets or briefcases, but also iPhones—capable of holding tens of thousands of pages of personal information. If current Fourth Amendment jurisprudence is extended to its logical conclusion, officers who arrest drivers for traffic infractions will be permitted to search the call histories, text messages, email, photos, movies, and internet browsing history on iPhones with no suspicion of wrongdoing whatsoever. This Article demonstrates how the full contents and multiple applications of iPhones can be searched without a warrant or probable cause under existing U.S. Supreme Court precedent. The Article also offers approaches courts and legislatures might adopt to ensure greater protection for the soon-to-be pervasive iPhone devices. Courts and legislatures can attempt to minimize this invasion of privacy by changing the legal rules to require that searches be related to the purpose of the arrest, by limiting searches to applications that are already open, by restricting suspicionless investigation to a small number of discrete steps, or by limiting searches to data already downloaded onto the iPhone, rather than data that is merely accessible through the iPhone’s internet connection.

Melville B. Nimmer Memorial Lecture: The World of the Framers – A Christian Nation?

Each year, the UCLA School of Law hosts the Melville B. Nimmer Memorial Lecture. Since 1986, the lecture series has served as a forum for leading scholars in the fields of copyright and First Amendment law. In recent years, the lecture has been presented by distinguished scholars such as Lawrence Lessig, David Nimmer, Robert Post, Mark Rose, Kathleen Sullivan, and Jonathan Varat. The UCLA Law Review has published each of these lectures and proudly continues that tradition by publishing an Essay by this year’s presenter, Professor Geoffrey R. Stone.