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Santa Clara Law Review
Number of Followers: 0  Open Access journalISSN (Print) 0146-0315 Published by U of Santa Clara  [3 journals]
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- UNRAVELING THE DISGORGEMENT REGIME
Authors: Piras; Alessandro
Abstract: Disgorgement is a legal remedy requiring those who gain from illegal or wrongful acts to give up any profits they made as a result of that conduct. The current state of disgorgement is uncertain, marked by rising tension between limitations in recent Supreme Court jurisprudence and newly enacted statutory authority granted to the Securities Exchange Commission (SEC) by Congress. Problems emerging from this regime threaten to render adjudication of disgorgement actions ineffective and inconsistent, potentially damaging the integrity of the financial system and eroding public trust in the markets. A comprehensive legislative framework is needed to fill in the gaps; one that firmly delineates the bounds of the disgorgement remedy and also sheds light on its ambiguities.This note paints a full picture of the pertinent legal landscape. In doing so, the intricate knots tying the Supreme Court’s Liu v. SEC opinion to the text of 15 U.S.C. § 78u are unraveled and disgorgement’s duality as equitable and statutory is revealed. In light of the apparent bifurcation, this note proposes additional legislation on the matter in order for litigation to meaningfully move forward under a single theory in future SEC enforcement actions. Setting aside uncertainty on this topic is necessary as disgorgement awards have made up the largest monetary recovery in recent years. With clearer guidance from this legislative framework, the SEC’s time and resources can be more effectively utilized in educating Main Street investors rather than spent on litigation.
PubDate: Tue, 19 Mar 2024 10:23:12 PDT
- RESTORING BALANCE TO QUALIFIED IMMUNITY: MODIFIED MANDATORY SEQUENCING
Authors: Cain; Patrick
Abstract: Qualified immunity continues to confound and frustrate judges, lawyers, law professors, law students, and even those outside the legal industry. Much of this frustration results from outcomes that shock the conscience, such as when government officials are granted qualified immunity despite stealing money while executing a search warrant or when government officials lock a prisoner in a highly unsanitary cell for a week.Legal scholars have examined two main areas within the qualified immunity doctrine: the common law origins and the clearly established prong of qualified immunity analysis. The common law origins of qualified immunity have been thoroughly examined, and until recently, it was thought there was no common law basis for qualified immunity. What was once a one-sided criticism has become a debate. Further, the clearly established test has finally been addressed by the Supreme Court in a recent per curium opinion.However, another issue within qualified immunity deserves attention. Specifically, how the current standard from Pearson v. Callahan disserves present and future plaintiffs in § 1983 suits. Pearson allows courts to pass on a constitutional inquiry into whether a constitutional right was violated if the case could be resolved on another ground. In not determining whether a constitutional right exists, future plaintiffs will be unable to defeat qualified immunity because a court chose not to determine whether a constitutional right exists.This article critically analyzes mandatory sequencing in qualified immunity and the reasons behind the Saucier v. Katz and Pearson decisions. Assuming that there is a common law foundation to qualified immunity and considering the lightening of the clearly established standard, I offer a solution to the future plaintiff problem of Pearson. A modified, mandatory sequencing that attempts to find a better balance between the goals of qualified immunity: a damages remedy to protect the rights of citizens against the need to protect officials in their discretionary acts.
PubDate: Tue, 19 Mar 2024 10:23:09 PDT
- REACHING PAST RUCHO: A CONSTITUTIONAL TORT FOR MONEY DAMAGES AGAINST
INDIVIDUALS WHO DRAW GERRYMANDERED DISTRICTS
Authors: Turner; Sam
Abstract: The Supreme Court in Rucho v. Common Cause held that the issue of partisan gerrymandering—that is, the drawing of political districts in a way that favors the party in power— presented a political question that was outside the competency of the courts to solve, at least through constitutional law. This article argues that Rucho does not close the door to judicial action in the face of partisan gerrymandering but instead closes the door only to the remedy proposed in the case. As with practically all major constitutional cases in recent memory, the Rucho plaintiffs were seeking relief that was equitable in nature: they were asking for the courts to order the relevant state legislatures to redraw their district maps and, if the legislatures refused, for the courts to draw new maps themselves. This article takes the position that it was this framing of the case that caused the Court to throw up its hands and declare the issue to be one for the political branches to solve. Rucho should not present a barrier to plaintiffs seeking to sue individual mapdrawers for money damages for maliciously denying them the full right to vote.While there traditionally has been no judicial recourse to challenge district maps as being unfair, there is a long line of authority for suing at law, rather than at equity—that is, suing for money damages rather than for specific performance—individuals who abuse their positions of power to harm specific people, including to keep people from voting. Additionally, private suits against individual mapdrawers for money damages would not suffer from the same concerns that led the court in Rucho to conclude that there was no judicially manageable standard for judging the fairness of, and potentially redrawing, district maps.
PubDate: Tue, 19 Mar 2024 10:23:06 PDT
- TECHNOLOGY, TINKER, AND THE DIGITAL SCHOOLHOUSE
Authors: Simoneau; Blakely Evanthia
Abstract: The world, both inside and outside the schoolhouse, has changed considerably since the Supreme Court decided Tinker v. Des Moines in 1969. Education in much of the United States is now inextricably linked with technology, and the schoolhouse is, increasingly, digital. This article critically examines the impact of the increasing use of technology on students’ First Amendment rights, looking at the Supreme Court’s recent decision in Mahanoy v. B.L. Specifically, it examines the effect of allowing schools to restrict speech on school-issued devices.Disciplining speech that takes place on school-issued devices will have a silencing effect on students who do not have access to personal devices. These students, who often come from low- income homes and are disproportionately likely to be students of color, use school-issued devices to engage in speech. This speech is not only more likely to be monitored by school officials, but also more likely to be restricted and silenced while their peers remain free to engage in identical speech on personal devices.Importantly, consideration of device ownership is unnecessary as it does not speak to whether a student’s speech causes a “substantial disruption” or otherwise speak to the impact on the school community. Additionally, it erodes parental rights by impermissibly extending the reach of school authority into homes and other areas traditionally reserved for parental control.Any barrier to speech that disproportionately affects a subset of already disenfranchised students and families is antithetical to the very ideals the Supreme Court has consistently upheld. Therefore, this article argues that this factor must be removed from the analysis.
PubDate: Tue, 19 Mar 2024 10:23:03 PDT
- BEYOND #FREEBRITNEY: AN ANALYSIS OF THE IMPACT OF AB 1194 ON PROFESSIONAL
FIDUCIARIES, THE ROLE OF COURT-APPOINTED COUNSEL, AND COURT OVERSIGHT
REQUIREMENTS
Authors: Schrammel; Isabella
Abstract: This article analyzes the impact of California Assembly Bill No. 1194 (AB 1194) on professional fiduciaries and court-appointed counsel and posits funding issues as a barrier to achieving the goals set out by AB 1194 and prior conservatorship law reforms. This article proposes numerous changes to AB 1194, including incentivizing rather than solely penalizing professional fiduciaries, adopting a midway standard between zealous advocacy and the best interests standard for court-appointed counsel, and development of a coherent funding plan.AB 1194 was adopted largely in response to media movements such as #FreeBritney, the movement which called for an end to the conservatorship of Britney Spears. #FreeBritney, however, resulted in no studies to quantify abuse in the context of conservatorships, and the legislative history of the resulting bill cites small-sample, niche, or fictional accounts of abuse in support. Articles analyzing AB 1194 specifically are similarly few and far between.In practice, AB 1194 poses significant problems that undermine its goal of protecting the elderly and incapacitated. As currently written, AB 1194 risks triggering a mass exodus of professional fiduciaries from conservatorship work. Scarcity of professional fiduciaries will disadvantage conservatees because professional fiduciaries offer neutrality and experience in handling complex conservatorships. AB 1194 additionally requires zealous advocacy of court- appointed counsel, codifying one side of a longstanding debate between the zealous advocacy and the best interests of the conservatee standard for court-appointed counsel. However, zealous advocacy is impractical in certain situations, and in others, places the conservatee in danger. Further, the Legislature has not made clear how much funding is necessary to accomplish the mandates of AB 1194, nor is it clear where the funding will come from. Without a coherent fiscal plan, AB 1194 will not achieve its goal of protecting the elderly.With the population of elderly individuals in California estimated to expand rapidly in the coming years, it is necessary that California adopt data-driven conservatorship legislation that creates, supports, and funds a protective conservatorship system.
PubDate: Tue, 19 Mar 2024 01:28:47 PDT
- UPON FURTHER REVIEW, THE RULING ON THE FIELD HAS BEEN OVERTURNED: THE NEW
ERA OF COLLEGE ATHLETICS FOLLOWING NCAA V. ALSTON
Authors: Salvestrin; John
Abstract: Recent market trends in college athletics elicit the true effects of the NCAA’s constraint on student athletes across the United States. Since the NCAA’s inception, student athletes have not been justly compensated for their efforts on the field—the NCAA and its member universities hoard the spoils that come about from these students’ world-class athletic abilities. This inequity is becoming more apparent than ever before, as college athletics is shifting towards a more pro-athlete landscape where they can finally profit from their athletic status and contributions. The NCAA’s justifications in prohibiting athletics compensation is quickly losing merit as we enter a new era of college athletics.This Note discusses the power imbalance between the NCAA and student athletes, recent market trends in college athletics, the NCAA’s justifications in prohibiting student athletic compensation, and the judicial scrutiny that arose from such prohibitions. I propose implementing a deferred compensation plan that levels the playing field between the NCAA and student athletes. This plan alters the current landscape of college sports by awarding athletes their fair share of the revenues they collectively generated through their efforts on the field.
PubDate: Tue, 19 Mar 2024 01:28:44 PDT
- THE GOOD, THE BAD AND THE UGLY OF DOBBS: A CONSTITUTIONAL RECKONING
Authors: Hutchinson; Allan C.
Abstract: The United States Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization marked a constitutional reckoning, with pervasive and inescapable consequences for many Americans. This article discusses this constitutional reckoning in two senses. First, it was a reckoning with the Court’s own precedent, as it overturned nearly fifty years of precedent on abortion rights. Second, it was a reckoning with the Court’s role in American society, as it raised fundamental questions about the Court’s legitimacy and its ability to protect the rights of minorities.This article begins by outlining a history of abortion rights in the United States, from the early days of the republic to the present day. The Court’s landmark decision in Roe v. Wade in 1973 established a constitutional right to abortion; and while it was a controversial decision, it has been challenged ever since.The Dobbs decision, like every other decision made by the Supreme Court, was not immune to the interpretive whims of the individuals who currently inhabit their seats of judgment and power. While the Dobbs decision may be characterized as “flawed” by some, this article seeks to examine the notion that there are no “flawed” or “unflawed” interpretations of the United States Constitution; only ones which we like, or do not like. As such, this decision will have a devastating impact on women’s rights and reproductive health for many years to come.This article concludes by discussing the potential future landscape of abortion rights in the United States. Although the Dobbs decision was a setback for abortion rights, this is nowhere near the end of the fight, considering other available levers outside of the judiciary, including and not limited to legislative action, public education, and grassroots organizing.
PubDate: Tue, 19 Mar 2024 01:28:41 PDT
- THE JOYFUL PROSECUTOR: A MORE EMPATHETIC AND BALANCED APPROACH
Authors: Reid; Melanie
Abstract: Over the years, prosecutors have been criticized for exhibiting aggressive, competitive traits while negotiating plea deals, investigating and preparing cases for trial, or arguing for their positions before, during, and after trial. Prosecutors are asked to interact with others in a highly adversarial criminal justice system on a daily basis on top of working in a highly competitive environment back in their own offices. This environment makes it difficult for a prosecutor to see the opposing party through a more compassionate lens. However, rather than continually focusing on how “bad” prosecutors can be and how to punish their misconduct, this article suggests we identify what makes a “good” prosecutor and find ways to support those qualities and instincts. A prosecutor, according to ABA Standards, is asked to exercise sound discretion, act with integrity and balanced judgment, protect the innocent, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons. A prosecutor who can exhibit these qualities and exercise good judgment in the face of conflict would be the ideal. In The Book of Joy, the Dalai Lama explains that inner peace and true happiness comes from having a greater concern for others’ well-being and exhibiting kindness, empathy, and compassion towards others. When we recognize our connection as human beings and we exhibit compassion towards others, we, in turn, feel joyful in our own lives. A new, joyful model of prosecution would require a reframing of the prosecutor’s role and relationships. An empathetic prosecutor would be able to perceive what others feel, process the information, and respond effectively with compassion rather than taking adversarial attacks personally. This is difficult to do in an environment where prosecutors must juggle the stress of seeking justice, protecting the public, working with law enforcement, consoling the victim, managing a high case load, and responding to repeated counterarguments by opposing counsel. We must encourage and support a change in the qualities exhibited by those in such a position. The rise of progressive prosecutors has changed the prosecutor’s environment and made displays of empathy and compassion much more accepted and commonplace. We must build on this display of empathy and choose prosecutors that are balanced and demonstrate a cooperative, empathetic spirit as well as a decisive, rational sense of right and wrong. A joyful prosecutor will be more empathetic and exhibit more balanced characteristics for the betterment of everyone involved in the criminal justice system.
PubDate: Tue, 19 Mar 2024 01:28:38 PDT
- LEADING LAW FIRMS IN THE “NEW NORMAL”: RECOVERING FROM CRISES THROUGH
LEADERSHIP DEVELOPMENT
Authors: Polden; Donald J.
Abstract: Beginning in 2008, the first of three major crises hit the nation and had global implications and effects, including significant ones for the legal profession. Those crises were the financial crisis of 2008, followed by the social justice movements reflecting outrage at several highly-publicized police killings of Black men and women, and, most recently, the 2020-2022 COVID-19 pandemic. The crises created significant challenges for lawyers and legal institutions but they also created opportunities for enhanced access to justice, more efficient law organization practices, and new workplace requirements. The Article considers several difficult questions about where the legal profession is at following these events and whether it has learned to anticipate inevitable, future crises. To do so will require effective, sustained and thoughtful leadership throughout the legal profession including the judiciary, law firms and law schools. The Article envisions a “new normal” where effective leadership in managing crises and leading clients and law organizations through those challenges is practiced across the profession.
PubDate: Wed, 13 Dec 2023 12:41:31 PST
- GENDER INEQUITIES, THE COVID-19 SHECESSION, AND THE NEED FOR A CONSCIOUS
TRANSFORMATION
Authors: Blassing; Marissa J.
Abstract: The recent COVID-19 pandemic demonstrated that new and acute burdens tend to fall on women in a time of crisis because society defaults to structural gender-normative roles. Even before the pandemic, women had a long history of facing structural inequities in the workplace and at home. Such inequities are fueled by implicit biases, expectations, and stereotypes. The fallout from the COVID-19 pandemic worsened gender inequities. For women, it disproportionately increased domestic obligations and it had a disproportionate effect on female-dominated occupations—threatening to roll back decades of progress.This Article will discuss the problem of gender inequity in the workplace, the role of implicit bias, how the COVID-19 pandemic exacerbated existing inequities, and how we might address such biases and inequities. I propose a strategy for achieving more equitable occupational outcomes through a “conscious transformation.” One that can help reform implicit biases, stereotypes, false assumptions, and perceived inadequacies. The Article uses the legal profession as a way to demonstrate the pandemic’s effect in a particular industry and proposes how a conscious transformation might apply.
PubDate: Wed, 13 Dec 2023 12:41:29 PST
- MISINFORMATION AND COVID-19
Authors: Reiss; Dorit R
Abstract: The COVID-19 pandemic’s impact on our world cannot be overstated. One of its noticeable features was the prominence of misinformation generally, and anti-vaccine misinformation more specifically. This article provides a breakdown of the five major themes of antivaccine misinformation and the way they were used to create fear, uncertainty, and doubt about COVID- 19 vaccines. Long before the pandemic, anti-vaccine activists argued using a five-part playbook. They argued that (1) vaccine preventable diseases were not really dangerous, (2) vaccines were dangerous and ineffective, (3) there were alternative treatments that were better than (dangerous and ineffective) vaccines, (4) there was a conspiracy to hide this information, and (5) the real issue is one of civil rights, not science. Their claims were based on misinformation before COVID-19, and anti-vaccine activists continued using the same themes, also based on misinformation, in their response to the COVID-19 pandemic. But the pandemic created a moment of vulnerability that allowed anti-vaccine activists’ claims to have broader impact.By setting out the themes and tactics used by anti-vaccine activists and spelling out the factors that led to the moment of vulnerability during the pandemic, this article aims to arm legal actors—judges, lawyers, and scholars—with tools that would help identify anti-vaccine claims and tactics, and hopes to protect them from being misled.
PubDate: Wed, 13 Dec 2023 12:41:26 PST
- EQUITY IN LEGAL EDUCATION
Authors: Deo; Meera E.
Abstract: The pandemic has brought to light myriad inequities, in legal education as elsewhere in society. Many of these barriers have existed for decades; while they have been exacerbated due to COVID, they will likely linger even as the pandemic subsides. This Article draws from both quantitative and qualitative data collected from students and faculty to reveal how the pandemic has heightened existing challenges in legal education, in particular ways and with distinctive effects on different populations. While inequities are a hallmark of legal education, the fissures and fault lines of these hierarchies have expanded during COVID. People of color, women, caregivers, those who are the first in their families to earn a college degree (“first- gen”), and others from backgrounds traditionally excluded from legal education are in particularly precarious positions due to the pandemic—though the inequities they face as law school students or professors have existed for decades. This Article reviews pre-existing challenges, introduces datasets used to test heightened disparities, and shares findings of increased burdens on students and faculty due to the pandemic. Given our amplified awareness of these problems and greater sensitivity to issues of diversity and inclusion, the Article concludes by proposing an equity-focused overhaul of legal education.
PubDate: Wed, 13 Dec 2023 12:41:23 PST
- FINDING HAPPINESS IN THE LAW: LIFELONG LEARNING AS A PATH TO MEANING AND
PURPOSE
Authors: Mamaysky; Isaac
Abstract: We begin with the premise that the happiest and most fulfilled attorneys are those who live a life of meaning and purpose. While many in the legal profession have achieved this goal, many others are unsatisfied with their career trajectories but feel, for a variety of reasons, that they aren’t empowered to make a change. Unfortunately, study after study finds that many attorneys are stressed and unhappy with their professional lives, and would even leave the law entirely if they could.The Article argues that these attorneys have a far more dynamic set of options than simply leaving the profession or staying unhappy. It’s not just possible—but, for many attorneys, should be the goal—to merge personal and professional interests to achieve a career filled with meaning and purpose.The Article goes on to argue that lifelong learning is the path to achieving this goal. As every practitioner knows, law school taught us an analytical framework—how to “think like a lawyer”—which is reinforced in all aspects of legal practice. Relying on those analytical skills, it’s entirely possible to learn new practice areas, write on new topics, and continually evolve to ensure that one’s legal career aligns with personal goals.We say “continually evolve” because meaning and purpose change over time, so even the most fulfilled attorneys need to make adjustments throughout their careers to hit this mark. While these types of career adjustments certainly may entail significant transitions from one practice area to another, they more commonly entail smaller adjustments to one’s trajectory and current role that are minor in the moment but can have significant impact over time.The Article concludes with a discussion of the value of failure and rejection to achieving meaningful professional goals, and a reminder that regrets in old age often center on the things we didn’t do rather than the those we did. The goal of this Article is to reinforce to law students and attorneys that they need not sacrifice their values for a job, and it’s entirely possible to combine professional and personal goals in one’s career—and, indeed, doing so may very well lead to a happy and meaningful life.
PubDate: Wed, 13 Dec 2023 12:41:21 PST
- EMPLOYERS AS INFORMATION FIDUCIARIES
Authors: Bodie; Matthew T.
Abstract: In order to better protect users from the predations of large tech companies amassing their data, commentators have argued that these companies should be considered information fiduciaries for the purposes of collection, use, storage, and disclosure of that data. This Essay considers the application of the “information fiduciary” label to employers in the context of employee data. Because employers are handling ever greater quantities of employee data, and because that data is becoming more sensitive and potentially damaging to workers if misused, the law should account for this expanded role with expanded protections. The beginnings of how such a set of protections might look is briefly explored.
PubDate: Wed, 13 Dec 2023 12:41:19 PST
- REMOTE LAW: THE GREAT RESIGNATION, GREAT GIGIFICATION, PORTABLE BENEFITS,
AND THE OVERDUE RESHUFFLING OF WORK POLICY
Authors: Lobel; Orly
Abstract: The shift to widespread remote work in 2020 during the COVID-19 pandemic accelerated changes to the labor market, including flexibility of time, place, and nature of traditional office jobs, and a steep rise in gig economy work. As vaccines became available and employers began to require their employees to return to in-person work, many employees instead chose to move to jobs with more competitive pay, more flexibility, and better remote work options. Now, law and policy must evolve to address this changing labor market, including the uncertainties and risks created by remote work. This Article identifies inequities that have deepened with the availability of remote work and calls for systems to better support work-life balance and worker mobility, and to protect both gig workers and employees whose jobs do not lend themselves to working remotely. Post-pandemic labor policy must also address the portability of benefits for employees and independent contractors, as well as the issues employers face when their remote employees work across state lines. Following the Great Resignation, heightened workforce insecurity and mobility presents new risks and opportunities for both employers and workers, yet measured policy reforms in response to the new labor landscape are needed to maximize human capital and social welfare.
PubDate: Wed, 13 Dec 2023 12:41:16 PST
- It Costs What!' To Start a Family' Infertility and the
Constitutional Right to Procreate
Authors: Shillings-Barrera; Jessica
Abstract: Access to infertility treatment, particularly Assistive Reproductive Technology (“ART”), such as In Vitro-Fertilization (“IVF”), continues to be prohibitively expensive and is not typically covered by employer- based insurance plans. Only a handful of states require employer-based insurance plans to cover any kind of infertility treatment. However, even those states that do, are inconsistent about which types of treatment must be included in the qualifying plans and differ in their definitions of infertility. These inconsistencies, in both coverage and definition, operate as discriminatory gatekeeping devices, privileging certain would-be parents while discriminating against others by barring access to screening and treatment. Without independent wealth or insurance coverage, most would-be-parents must rely only on their personal savings and an IRS rule)Internal Revenue Code section 213(a) that allows taxpayers to deduct the cost of medical expenses above 7.5% of their adjusted gross income. However, the IRS rule does not allow for the deduction of third-party medical expenses unrelated to the taxpayer. This discriminates against would-be-parents who utilize the assistance of (and bear the cost of) an egg donor or gestational carrier.Access to infertility treatment should be formally recognized as a fundamental liberty interest under the Fourteenth Amendment. To guarantee consistent nationwide coverage from employer-based insurance plans, the infertility community also needs its own accompanying Infertility Discrimination Act (“IDA”), styled like the Pregnancy Discrimination Act. An effective IDA should explicitly state that an otherwise inclusive plan that singles out infertility-related benefits for exclusion is discriminatory. Additionally, the tax code should be modified to allow prospective parents to deduct medical costs incurred on behalf of third parties for the purpose of overcoming medical and/or circumstantial infertility.
PubDate: Tue, 27 Dec 2022 12:51:57 PST
- Limiting Executive Branch Judo in Federal Stem Cell Research Policies and
Regulations
Authors: Lau; Andrew
Abstract: Human embryonic stem cell research has tremendous potential for treating or curing many diseases that cause human suffering. Nevertheless, federal funding for stem cell research has had a controversial history in the United States. While many Americans believe that stem cell research will lead to the development of critical medical technology, others oppose it because of its association with abortion. These ethical issues have made stem cell research a prime target for political posturing, particularly because of how much power presidents have over stem cell research policies. By using vetoes, directives, or executive orders to manipulate stem cell policies, presidents have engaged in executive branch judo to work around the separation of powers and engage in unauthorized lawmaking activity at the expense of the public.This note will analyze the history of the United States’ stem cell research policies and explain how presidents have interfered with its development. Based on the principles of Youngstown Sheet & Tube Co. v. Sawyer, presidents have repeatedly manipulated stem cell policies in violation of the Constitution. In light of these violations, this note proposes several methods to curtail the president’s unilateral control over an entire field of scientific research. Human embryonic stem cell research represents the next frontier of biomedical science, but its benefits will only reach the American public if the United States puts an end to the presidential practice of using executive branch judo to manipulate it.
PubDate: Tue, 27 Dec 2022 12:51:55 PST
- The Patentability of Separability: Designing a Test for “Article of
Manufacture” Identification in Section 289 of the Patent Act
Authors: Wald; Samantha M.
Abstract: The U.S. Supreme Court’s decision in Samsung Electronics v. Apple Inc. regarding the meaning of the term “article of manufacture” in Section 289 of the Patent Act neglects to resolve foundational distinctions in the protected scope of multi-component devices. Cloaked in ambiguity, the Court’s brief and ostensibly limited opinion critically fails to demonstrate when the relevant “article of manufacture” should be treated as the whole commercial product or as some smaller unit; nor does it explain how to identify the relevant “article of manufacture” if it is less than the product as a whole. Instead, the Supreme Court’s dictionary-based definition of the term “article of manufacture” has unearthed more questions than answers, the most salient being how to identify the relevant “article of manufacture” and appropriate remedy for infringement of multifaceted products.This Article attempts to do what the United States Supreme Court would not: it sets out a test for identifying the relevant “article of manufacture” at step one of the Section 289 damages inquiry. Finding inspiration in the copyright doctrine of separability, it advances a statutory framework, judiciously delineating a more standardized approach to “article of manufacture” identification in multi-component devices. Specifically, through the development of a “separability” test, this Article imposes a constructive foundation of statutory guidance that does not broadly capture or exclude all components of the claimed design. Instead, it proposes a workable standard that explicitly determines when the component of an invention, rather than the invention itself, should constitute the relevant “article of manufacture.” If implemented, this test would foster consistency in the practice of design patent law by establishing predictability through the furtherance of more precise guidelines.
PubDate: Tue, 27 Dec 2022 12:51:54 PST
- Federalism by Deception: The Implied Limits on Congressional Power
Authors: Fair; Bryan K.
Abstract: The purpose of this Article is to lay bare federalism by deception and the theory of implied limits on federal power. Other scholars have recently noted the rise of anti-federalist viewpoints in modern cases. I go a step further to demonstrate how Supreme Court Justices have embraced anti-federal ideology, but have cited Federalist sources, including Marshall, to announce unenumerated limits on federal legislative power.
PubDate: Tue, 27 Dec 2022 12:51:52 PST
- California's Recall Is Not Overpowered
Authors: Carrillo; David A. et al.
Abstract: The recall is one of three direct democracy tools in California. Following the failed 2021 recall attempt against California Governor Gavin Newsom, the state recall process has been criticized for evolving beyond its intended purpose to the point of being overpowered and prone to abuse. After reviewing the recall’s original intent, we conduct a quantitative analysis of state and local recall attempts in California and compare this to other recall states. We conclude that the critique is unjustified. In California and elsewhere, state official recalls are frequently attempted but rarely qualify for the ballot, demonstrating that the existing recall system is an effective filter. We validate the charge that the recall is primarily a tool of out-party interests, but conclude that this is an intended design feature rather than an unanticipated defect. We conclude instead that California’s local recall is the better target for reform efforts, given its comparatively easier qualifying requirements, greater use, and higher success rates. Rather than deviating from its intended purpose, in its 110 years the California state official recall proved to be exactly what its Progressive designers intended: a voter weapon to menace and remove public officials, but one that is difficult to deploy. We frame the recall as less about politics and more about policy: recalls function as public opinion or policy polls and overall tend to validate existing policy. Finally, we conclude that most proposed reforms are solutions seeking a problem, and that California’s recall system merits just a few small procedural changes. The upshot is that the view of California’s recall as a force gone amok is incorrect.
PubDate: Thu, 03 Nov 2022 12:11:58 PDT
