Conventional accounts of federalism and administrative law generally assume that the federal government is highly centralized in Washington, D.C. Judges, politicians, and academic commentators often speak of “bureaucrats in Washington,” and they often contrast the poor governance supposedly provided by those bureaucrats with more responsive, innovative, and democratically legitimate governance...
Exhausting Patents
A bedrock principle of patent law—patent exhaustion—proclaims that an authorized sale of a patented article exhausts the patentee’s rights with respect to the article sold. Over one hundred and fifty years of case law, however, has produced two conflicting notions of patent exhaustion, one considering exhaustion to be mandatory regardless of whether the patentee subjects the sale to express...
Post-Deportation Remedy and Windsor's Promise
Since 1996, the Defense of Marriage Act (DOMA) defined marriage for federal purposes as the union between a man and a woman. As same-sex marriage became legal across the United States, DOMA created a situation in which same-sex married couples could not access federal immigration benefits based on their married status. In some cases, this meant that noncitizens were removed from the United States...
Forget Congress: Reforming Campaign Finance Through Mutually Assured Destruction
Congress will not enact meaningful campaign finance reform. Under the nation’s current legislative, regulatory, and judicial regimes, remedies to the problem of money in politics appear unattainable. This Comment provides an entirely novel approach toward reducing the corrosive influence of outside money on the U.S political system. Aided by the power of the profit motive, this Comment proposes...
Episode 1.0: Intro to Dialectic
In this episode, we introduce ourselves and explain what we hope to accomplish through Dialectic.
Applying Originalism
An essay reviewing the inaugural Justice Antonin Scalia Lecture, titled “Interpreting the Unwritten Constitution,” presented at Harvard Law School by Judge Frank H. Easterbrook on November 14, 2014.
Amending the Ancient Documents Hearsay Exception
This Essay critically assesses a pending, proposed amendment to the Federal Rules of Evidence—slated to take effect in December 2017—that would abrogate Federal Rule of Evidence 803(16), the hearsay exception for ancient documents. The proposed amendment was motivated largely by a fear that large quantities of potentially unreliable, stockpiled, electronically stored information (ESI) are ap...
Attack of the Shorting Bass: Does the Inter Partes Review Process Enable Petitioners to Earn Abnormal Returns?
The Patent Trial and Appeal Board recently instituted a review process called inter partes review that provides a faster review of patent validity than previous methods. The inter partes review has less restrictive rules about which entities can file a petition challenging a patent. Investment firms have taken advantage of these changes. We test whether the patent challenges made by one...