The Supreme Court promulgates rules of procedure pursuant to the Rules Enabling Act. This statute provides that “Such rules shall not abridge, enlarge or modify any substantive right.” The Court has not taken the opportunity to refine the precise contours of the Act and has never invalidated a rule under it. This article takes up that enterprise, articulating an understanding of the Rules Enabling Act that will clarify the scope of the Supreme Court’s rulemaking authority.
This article confronts a dangerous contemporary trend: the escalating political harassment of public university scholars through the use of public records requests. This phenomenon impedes academic enterprises as diverse as climate change research and biomedical experiments. The article argues that most of professors’ records should not be subject to laws that exist to promote democratic accountability, both because professors do not govern, and because open records laws conflict with the academic freedom necessary for knowledge generation.
The familiar ideal is that the remedy should “fit the wrong”. This article reveals that in copyright law, the remedies actually create the wrong. Conducting a novel study of infringement claims and case law involving statutory damages, the author explains how plaintiffs routinely employ enhanced damage claims to threaten and subdue alleged infringers into making settlement concessions. The article concludes that copyright’s statutory damage framework is a remedy in dire need of reform and provides a number of substantive and procedural policy suggestions.
The article argues that courts unjustifiably limit public school liability under both Title IX and the Fourteenth Amendment to students who suffer sexual, physical, and verbal abuse and harassment. As a remedy, the article proposes changes to the assessment of Fourteenth Amendment and Title IX claims that abandon misconceptions, increase schools’ potential for liability, and promote the development in schools of processes for preventing, discovering, and addressing students’ harms.
Much in the field of statutory interpretation is predicated upon “interpretive dialogue” between courts and legislatures. Yet, the idea of such dialogue is often advanced as little more than a slogan; the dialogue that courts, legislators, and scholars are imagining too often goes unexamined and underspecified. This essay attempts to organize thinking about the ways participants and theorists conceive, and should conceive, of interbranch dialogue within statutory interpretation.
This article explores the impending conflict between the protection of civil rights and trade secrecy in an age of big data, as exemplified by a number of recent cases involving algorithmic bias and discrimination. In a world where the activities of private corporations are raising concerns about privacy, due process, and discrimination, we must focus on the role of corporations in addressing the issue. This paper presents two potential models to ensure greater transparency, drawn from self-regulation and whistleblower protections.
The Supreme Court’s 2016 decision in Hurst v. Florida, which struck down Florida’s capital sentencing scheme, expanded the Court’s Sixth Amendment sentencing doctrine. Although the precise scope of the decision is unclear, the most sensible reading of Hurst suggests that any finding required before a judge may impose a higher sentence must be submitted to a jury and proven beyond a reasonable doubt. This reading means dramatic changes for several state sentencing systems and federal sentencing as well.
Inventive machines are increasingly being used in research, and once the use of such machines becomes standard, the standard of the “person skilled in the art” used to judge “obviousness” for patentability should be a person using an inventive machine, or just an inventive machine. As inventive machines continue to improve, this will increasingly raise the bar to patentability, eventually rendering innovative activities obvious. This means the end of patents, at least as they are now.