Authors:Cameron J. Rachford Abstract: Despite empirical evidence documenting its harms and substantial legislative efforts to ban its practice, conversion therapy remains a tragically prevalent practice in the United States. Recently, a circuit split between the Ninth and Eleventh Circuits has developed, raising questions about the future of conversion therapy regulation. This Note takes a retrospective look at the last ten years of conversion therapy bans and related legal challenges, questions the effectiveness of enacted bans, and explores routes for more effective regulation. This Note ultimately argues that conversion therapy bans must shift their focus to the regulation of unlicensed practitioners in order to better protect minors from the empirically demonstrated harms of conversion therapy. PubDate: Tue, 25 Jun 2024 08:33:33 PDT
Authors:Yaniv Heled et al. Abstract: Since the biotechnology revolution of the 1970s, genetic science and genetic technology have captured the public imagination. They have become a centerpiece of how we understand ourselves, our relationship with other humans, other living beings, our environment, and—indeed—with the universe. Through this evolution of understanding, genetic phenomena have acquired many meanings, some rooted in objective reality and others subjective and dependent on individual perceptions and sentiments.However, legal decision-making and policymaking have not kept pace and reflect only a partial understanding of the multiple dimensions of genetic phenomena, which are forced into narrowing legal pathways, neglecting vital interests. As the legal uses of genetic technologies and disputes involving such technologies become increasingly prevalent, the disconnect between genetics and the law grows and deepens.This Article identifies and analyzes the impact of the longstanding judicial and legislative practice of applying ill-fitting legal constructs to genetic phenomena. We use case studies drawn from various legal areas to show how forcing genetic phenomena into existing legal categories neglects important genetic interests.The deficiencies of case law and legislation addressing genetics highlight the need for a more comprehensive way of thinking about, and legally recognizing, interests stemming from the multiple dimensions of genetic phenomena. In response, we provide a conceptual framework for incorporating genetic phenomena more fully into the law. Our approach offers legislators, judges, regulators, and lawyers a new way of thinking about genetics in the law, one that accounts for and accommodates the full range of individual, group, and societal interests in genetic phenomena. PubDate: Tue, 25 Jun 2024 08:33:30 PDT
Authors:James Toomey Abstract: Under the doctrine of substituted judgment, decision-makers for adults without legal capacity are to make the decision the person in their care would have made. In cases involving irreversible cognitive decline—where substituted judgment is most frequently applied—scholars have struggled to explain it, resorting to mysterious metaphysical claims. These philosophical acrobatics seem necessary because the person for whom the decision is made cannot appreciate it, and, philosophically, they may not be the same person they had been.This Article offers a novel account of substituted judgment that circumvents these challenges. I argue first that the doctrine is straightforwardly justified in cases of temporary incapacity, such as that of a psychotic episode, and then explain why the law might justifiably treat permanent incapacity as though it were temporary. In cases of temporary incapacity, substituted judgment is grounded in love. “Love” describes (at least) intimate knowledge of and concern for the personal identity of another. To make the decision someone would have made while they are temporarily unable to is an act of love.And there are at least three reasons the law might justifiably treat permanent incapacity as though it were temporary. First, there is substantial medical uncertainty about the prognosis of brain disorders. Second, it is characteristic of love that it is partially constitutive of the identities of those who love—a doctrine justified by love might recognize this. Finally, a liberal private law might acknowledge that, under many worldviews, what looks like permanent incapacity is in fact temporary. PubDate: Tue, 25 Jun 2024 08:33:27 PDT
Authors:Yiran Zhang Abstract: The state plays an increasingly crucial role in providing home care as an aging population leads to mounting care needs. The public care system in the United States delivers home care and compensation for care work through an increasingly bureaucratic mode of governance featuring task-list enumeration, documentation, professional supervision, and exacting surveillance. The process adopts a rigid functional approach to define, measure, and regulate care that creates tension with home care’s relational, fluid, and person-centered dimensions. Through the concept of “care bureaucracy,” this Article describes the status quo disciplinary bureaucracy governing public home care, analyzes its political economy context, including its origin in poverty law, and lays out its benefits and profound costs. The care bureaucracy not only burdens care workers and families needing care with unpaid, invasive, and bureaucratic work, but also deters participation and stifles the provision of home care, threatening the state’s capacity to adequately deliver the promised quality care. The Article also proposes an alternative way to govern public home care by drawing from the Department of Veterans Affairs’ caregiver programs for veterans with service-related disabilities.This Article makes two contributions to legal scholarship on care and the state. First, this Article explores the tension between public responsibility and the autonomy of families and workers in a mundane form of family regulation—a disciplinary bureaucracy—in the public home care system. The care bureaucracy imposes a not-so-punitive and yet highly omnipresent regulation of the users’ family, workplace, and bodily autonomy by micro-managing their physical movements inside homes. Second, it establishes the political-economy connection between the bureaucratization and fragmentation of public home care. In analyzing the status quo political economy of the care bureaucracy, this Article provides a roadmap to reform the public care system into one more responsive to the growing care needs. PubDate: Tue, 25 Jun 2024 08:33:24 PDT
Authors:Heather M. Field Abstract: The IRS is outgunned when trying to ensure compliance by large corporations and other sophisticated taxpayers. The private sector can help. Private sector actors, such as financial institutions, employers, and whistleblowers, have been valuable allies in the IRS’s efforts to improve compliance and enforcement. This Article argues for using another, largely overlooked, private sector party—tax insurers—to expand the IRS’s enforcement abilities. Tax insurers insure sophisticated taxpayers’ uncertain tax positions (e.g., the tax-free treatment of a corporate spinoff or tax credits critical to a renewable energy project). For a premium, a tax insurer agrees to pay any additional taxes owed with interest and penalties (up to the policy limit) if an insured tax position is successfully challenged by a tax authority. The tax insurance industry has grown dramatically since the mid-2010s, but scholars and policymakers pay little attention to its enforcement-enhancing potential. This is a mistake because insurers have informational, expertise, and capacity advantages over the IRS, because of the industry’s recent explosive growth, and because more robust enforcement is needed among precisely those taxpayers served by tax insurers.This Article proposes a novel regime in which tax insurers that voluntarily commit to insuring only strong tax positions would be effectively deputized as private sector tax enforcers. The IRS would treat any positions insured by them as likely compliant, having been “sustained” in a private “audit.” In theory, with the right combination of sticks and carrots, private sector tax enforcers could be incentivized to live up to their commitment to “sustain” only strong positions, and taxpayers could be incentivized to pursue “audits” by private sector tax enforcers that live up to those commitments. Given these mutually reinforcing incentives, the IRS could rely on those private sector “audit” determinations and reallocate enforcement resources toward taxpayers and tax positions more likely to be noncompliant. If the potential concerns presented by this proposal can be overcome (a task that might prove challenging), the proposal could harness a growing private sector industry for the public good. PubDate: Tue, 25 Jun 2024 08:33:21 PDT
Authors:Sari Mazzurco Abstract: Lawmakers and scholars concerned with content moderation regulation typically appeal to “analogies” to justify or undermine different forms of regulation. The logic goes: law should afford individuals due process rights against speech platforms because speech platforms are “like” speech governors as a matter of objective reality. Other common analogies include common carriers, publishers, distributors, shopping malls, and bookstores.Commentators attempt to invoke social roles to understand what the content moderation relationship is, what behaviors are “right” and “wrong” within it, and how law should police behavioral deviations. But they do so without relying on foundational sociology theory that explains what social roles are, what they do, and how they come to be. Without this theoretical foundation, the discourse incompletely portrays the project of content moderation regulation. Content moderation regulations do not simply “take” speech platforms’ role as it currently exists––they will also “make” speech platforms’ role by expressing that speech platforms should be speech governors, common carriers, publishers, or something else, based on how lawmakers choose to regulate.This Article is the first to introduce role theory into the content moderation discourse. Content moderation regulations are poised to define the basic contours of what it means to be a “speech platform” because the role remains unsettled. Earlier, the Communications Decency Act failed to articulate coherent roles within the content moderation relationship. But current content moderation regulatory reforms—including the PACT Act in Congress as well as state platform-common carriage laws and their judicial review—have a renewed opportunity to script social roles for speech platforms and individuals. Foregrounding these reforms’ role scripts directs attention to urgent questions about whether they are likely to produce a desirable content moderation relationship and an online speech ecosystem that meets the public’s needs. PubDate: Tue, 25 Jun 2024 08:33:19 PDT
Authors:Herbert J. Hovenkamp Abstract: The antitrust laws are fully stated in two statutes that seem absurdly brief in relation to the work they do. Their brevity in relation to coverage has led to three phenomena. First is the tendency of courts to use the statutory text as no more than a starting point, treating it as a general principle, or “Magna Carta,” of free enterprise, and sometimes ignoring the statutory language altogether. Second, courts have responded to the statutory brevity with judicial development of numerous rules not mentioned in the statutory texts. The third phenomenon is a kind of expansionism, or belief that the antitrust laws can be used to control the entire world, or at least the entire economic world.This article considers what antitrust policy would look like if an antitrust “textualist” actually relied on the antitrust statutes themselves to control all important issues of interpretation. The language of the antitrust laws, although brief, actually says a great deal more than is commonly acknowledged. Further, the Sherman and Clayton Acts are statutes after all. They should provide the first place to look to for guidance on enforcement policy. How much different would antitrust look if we centered policy on the statutory language, using only generally accepted forensic tools and recognized canons of statutory interpretation to understand it' Among the areas where the statutory language provides considerable direction are the goals of the antitrust laws; market power and market delineation requirements; the probabilistic effects requirement of the Clayton Act, standing and the indirect purchaser rule, conspiratorial capacity and antitrust personhood, and extraterritorial effects. PubDate: Tue, 25 Jun 2024 08:33:16 PDT
Authors:Thomas M. Fisher Abstract: Wabash College established the David W. Peck Senior Medal in 1974 to recognize eminence in the law in memory of Judge David W. Peck, Wabash class of 1922. In his long and distinguished legal career, Peck served as partner at Sullivan and Cromwell and as Presiding Justice of the Appellate Division of the New York Supreme Court. The annual Peck Lecture has honored some of the nation’s most distinguished practitioners, judges, and law professors. Solicitor General Fisher’s 2023 Peck Lecture explores the origins of the office of state attorney general and argues that the political independence of attorneys general is critical to development and maintenance of the rule of law. PubDate: Fri, 21 Jun 2024 13:28:00 PDT
Authors:Madeline Ash Abstract: On May 31, 2022, Colorado became the first state in the country to ban anonymous gamete (i.e., sperm and egg) donation through the enactment of the Donor- Conceived Persons and Families of Donor-Conceived Persons Protection Act. By 2043, donor-conceived Coloradans over the age of eighteen will gain access to the donor’s identifying information, such as the donor’s full name and permanent address, as well as their medical history. However, this newfound right to information also imposes heightened obligations on donor gamete agencies to obtain and track the data from their donors. Given the novelty of such legislation in the United States, crucial questions exist for the feasibility and efficacy of ensuring compliance within the gamete donation industry. This Note serves to explore four key provisions of the Act: access to donor information, donor limitations, age requirements for donors, and the educational materials provided to gamete donors and recipients. After analyzing these provisions, this Note compares the gamete donation legislation in Colorado with those found in the United Kingdom, Australia, and Denmark. This Note concludes by recommending the best path forward for upholding the rights of donor-conceived persons, gamete donors, and gamete recipients alike: a register that facilitates the tracking of identifying information for all parties involved. PubDate: Fri, 21 Jun 2024 13:27:58 PDT
Authors:Lois Shepherd et al. Abstract: When patients seek medical care, they trust their physician to offer treatments that are in their best medical interests and to engage them in a shared decision-making process to determine the best way forward. But today, in hospitals and doctors’ offices around the country, physicians also place patients in research studies that randomly assign them to a standard of care treatment, sometimes without the patients’ knowledge or consent. In such studies, patients may receive a treatment that results in worse outcomes for them, some of which can be serious and permanent. What’s more, there are reasons to be concerned that the burdens of this practice may fall more heavily on people of color and those who have less financial means, are less educated, or experience language barriers. Their social disadvantage or vulnerability may be further deepened by their illness.As these studies are taking place, physician-researchers and ethics scholars have been increasingly advancing arguments in the ethics literature for bypassing consent practices that have been in place for over half a century. Though these arguments are weak and some illogical, government agencies have been funding research without consent and government oversight bodies have stood by doing little.Advocates for bypassing consent have met some opposition, but thus far debate on this issue has taken place almost exclusively within the research and research ethics community and has focused almost entirely on ethical and regulatory requirements. The common law has been forgotten.Yet physicians and other clinicians violate patients’ legal rights to bodily integrity and autonomy—in addition to breaching fiduciary duties of loyalty, discretion, and care—when they place their patients in these types of studies without their knowledge or consent. This Article examines common law duties to inform patients and obtain their consent prior to placing them in research studies that randomize them to medical treatments, even ones that are accepted as standard of care. Courts have yet to specifically address the scope of duties owed, although lawsuits stemming from involvement in such studies have recently been initiated and more should be anticipated in the future. Past cases reveal that patients randomized to medical treatments without their knowledge or consent could successfully sue for battery, lack of informed consent, and breach of fiduciary duty, among other claims. Understanding the common law duties associated with such claims does more than illuminate potential legal exposure for physicians and others conducting such research. Appreciating the ethical grounding of those legal duties also points the ethical way forward—for researchers to design consent processes that respect patients’ rights to know when decisions about their care will be affected by their placement in a research study and for oversight bodies to interpret existing research regulations as they traditionally have done—to honor a patient’s right to consent and its corollary—the right to refuse. PubDate: Fri, 21 Jun 2024 13:27:55 PDT
Authors:Bradley W. Joondeph Abstract: For many decades, the Supreme Court has applied different doctrinal frameworks in evaluating whether state laws violate the dormant Commerce Clause depending on whether the law at issue was a regulation or a tax. For state regulations, the Court’s test has included asking whether the regulation imposes costs on interstate commerce that are “clearly excessive” relative to its local benefits. But the Court has never applied this so-called “Pike balancing test” to state taxes. In its most recent state tax decision, however—South Dakota v. Wayfair, Inc.—the Court indicated Pike offers a basis for challenging state tax schemes under the Commerce Clause. Wayfair has thus created a puzzle: How should undue burden analysis apply to state taxes'Contrary to the positions of several courts and scholars, this article contends that the best understanding of governing constitutional law is that state tax liabilities themselves—independent of any costs of compliance—are categorically incapable of imposing burdens that are constitutionally “undue.” A survey of the different types of incidental costs state taxes might impose on interstate commerce shows that those costs cannot be “clearly excessive” in a constitutional sense—either because precedent forecloses that conclusion or because the inquiry Pike posits is not amenable to judicial resolution. This explains why the Court has never invalidated a state tax liability due to its incidental burden on interstate commerce. And it explains why the Court mentioned Pike specifically in Wayfair, which concerned the burden of a tax compliance obligation, not a tax liability.In short, the only state tax disputes for which undue burden analysis is appropriate are those involving the costs of tax compliance obligations. In every other type of state tax case, “Pike balancing” is beside the point. PubDate: Fri, 21 Jun 2024 13:27:52 PDT
Authors:Eldar Haber Abstract: Virtual worlds are no longer science fiction. New technologies that promise a world lacking physical or mental boundaries are finally becoming a reality. Commonly referred to as the metaverse, this innovative technology opens a world of opportunities for individuals everywhere to experience an almost unlimited virtual dimension where they can play, work, own property, engage in sexual activities, and fulfill their dreams. Unlike previous virtual worlds, the metaverse could be a gamechanger as it offers an immersive experience. It feels authentic to the users and will become even more realistic with advancements in haptic technology. With its benefits, the technology also raises the fear of criminal activities. These may include financial or property crimes (e.g., theft or fraud), crimes against the person (e.g., stalking or harassment), and sex crimes (e.g., sexual harassment and potentially even rape), to name but a few examples.Unlike previous virtual worlds and its related scholarship, the metaverse’s immersive capabilities could be disruptive to criminal law: they could lead to atypical offenses that, while lacking physical harm, could activate the nervous system much like a conventional crime. If the mind cannot tell the difference, how should criminal law treat such conduct' In light of such immersion, this Article proposes a taxonomy for metaverse crimes and suggests further scrutiny of the metaverse’s enforcement. Upon defining the criminal metaverse, this Article identifies some conducts as in superposition—whereas their existence and scope are currently undetermined—and offers ways to assess their harm. It then examines enforcement challenges and concludes that much of the rulemaking and enforcement will be in the realm of metaverse platforms, while some must remain under the state's prerogative. Ultimately, enforcement of the criminal metaverse will take on an unprecedented dynamic that has yet to be seen in criminal law. PubDate: Fri, 21 Jun 2024 13:27:49 PDT
Authors:Stephen Choi et al. Abstract: Plaintiffs’ lawyers in the United States play a key role in combating corporate fraud. Shareholders who lose money as a result of fraud can file securities class actions to recover their losses, but most shareholders do not have enough money at stake to justify overseeing the cases filed on their behalf. As a result, plaintiffs’ lawyers control these cases, deciding which cases to file and how to litigate them. Recognizing the agency costs inherent in this model, the legal system relies on lead plaintiffs and judges to monitor these lawyers and protect the best interests of absent class members. Yet there is remarkably little data on the business of securities class action lawyers, leaving lead plaintiffs and judges to oversee this area without the tools to understand how it works.This Article looks inside the black box of securities class action lawyering to explore the business behind these cases. Our study includes hand-collected data on all securities fraud class actions against public corporations filed between 2005 and 2018, a total of nearly 2500 cases. We find that the business of securities class action lawyering is far more complex than prior scholarship has recognized. Contrary to conventional wisdom, there are not two tiers of plaintiffs’ law firms; instead, there are multiple tiers of firms, each with its own client base, litigation patterns, and revenue model. Our study gives lead plaintiffs and judges the data and tools they need to understand these tiers and to compare the performance of the law firms within them. We also examine how these law firms are compensated, finding that judges’ fee awards fail to account for the difficulty of cases or the risk of nonrecovery in any systematic way. These fees are crucial to ensuring that law firms pursue the right cases on behalf of shareholders, so we suggest ways that judges can use data to improve fee awards. As we will see, the path to reforming securities class actions starts with understanding the business behind them. PubDate: Fri, 21 Jun 2024 13:27:46 PDT
Authors:Patrick R. Goold et al. Abstract: Utilitarians typically argue that the state should grant copyright to authors only when doing so promotes utility. In recent years, however, this argument has faced three criticisms. As a normative matter, critics argue that a utilitarian copyright system is neither just nor attractive. As an epistemological matter, critics argue that society cannot ever know whether copyright promotes utility. And as an interpretive matter, critics argue that utilitarianism fails to appreciate what copyright is really all about: progress of the sciences and useful arts. And so, an increasing number of scholars conclude that copyright should be awarded, not when doing so aids utility, but when doing so secures natural rights or promotes democratic norms.This Article refines and defends the utilitarian argument for copyright law. It departs the company of prior utilitarians, however, in its conceptualization of “utility.” Taking inspiration from John Stuart Mill’s defense of utilitarianism, the Article argues that utility in copyright cannot be understood in purely quantitative terms. Of course, the overall amount of creative work that the copyright system generates matters a great deal; but it is not the only thing that matters. The type of creative work incentivized by the system also matters: creative work that feeds the mind, sparks feelings and imagination, and promotes moral sentiments provide copyright’s “higher pleasures.” A truly utilitarian copyright system is, therefore, one that produces more and better creative work. A utilitarian copyright of this kind is normatively attractive, epistemologically realistic, and interpretively consistent with the constitutional structure of American copyright law. PubDate: Fri, 21 Jun 2024 13:27:43 PDT
Authors:Martin H. Redish et al. Abstract: Legislative courts doctrine has become terribly tangled. When an area of law is summarized as one in which the “precedents are horribly murky, doctrinal confusion abounds, and the constitutional text is by no means clear,” that area of law has become a Gordian Knot. Attempts to untangle it will prove futile. For over a century and a half, the Supreme Court has repeatedly tried to make sense of legislative courts, but to no avail. These attempts, ranging from pure formalism to functional balancing tests, have proven detrimental to individual litigants.That is where due process comes in. Despite the fundamental constitutional principle of due process and its promise of a neutral adjudicator, the Supreme Court has failed to consider the legislative courts doctrine from this perspective. The Supreme Court has provided a robust body of jurisprudence under the Due Process Clause about unacceptable pressures and influences on adjudicators. But no one has thought to introduce the two. So rather than continue to try to untangle legislative courts doctrine, we need to use the sword of due process to cut the knot. This piece aims to begin that conversation. PubDate: Fri, 21 Jun 2024 13:27:40 PDT
Authors:Anupam Chander Abstract: The desire for trade propelled the growth of data privacy law across the world. Countries with strong privacy laws sought to ensure that their citizens’ privacy would not be compromised when their data traveled to other countries. Even before this vaunted Brussels Effect pushed privacy law across the world through the enticement of trade with the European Union, Brussels had to erect privacy law within the Union itself. And as the Union itself expanded, privacy law was a critical condition for accession.But this coupling of privacy and trade leaves a puzzle: how did the U.S. avoid a comprehensive privacy law yet retain access to trade' The Article explains U.S. exceptionalism as resting on its enormous economic leverage, which enabled it to negotiate sui generis regimes to ensure access to foreign data.Even those accepting this historical account as account might yet argue that privacy should not be subjected to trade law disciplines. “Privacy is not bananas,” as the great Spiros Simitis famously proclaimed. But food safety is also a human right, and trade law has shown that we can protect human health even when we consume food produced abroad. Similarly, we can protect privacy even while enabling trade in digital services. Trade disciplines need not undermine privacy, but rather help ensure that claims of privacy protection are not merely disguised protectionism. PubDate: Wed, 07 Feb 2024 12:52:17 PST
Authors:Aaron Mackay Abstract: The Fifth Amendment’s “public use” requirement for takings is no longer a requirement at all. Instead, the meaning of “public use” has been expanded far beyond its original intent and public understanding. The broadening of the “public use” requirement reached its breaking point in Kelo. Since Kelo, state legislatures have responded by restricting eminent domain use to remove “blighted” areas. In effect, contemporary eminent domain reduces the availability of affordable housing, which has exacerbated the affordable housing crisis. This Note explores a constitutionally permissible re-working of the eminent domain doctrine to encourage the provision of affordable housing. Interpreting the “public use” requirement through a living constitutional framework justifies heightened judicial review for blight removal takings and simultaneously justifies takings for the provision of affordable housing. With the post-Kelo legislative backlash shifting the doctrine into an exclusionary practice, an adjustment must be made to combat the affordable housing crisis. As this Note suggests, a reinterpretation of the “public use” requirement and accompanying doctrinal shift in the use of eminent domain is not only constitutional but better aligned with current public opinion and values. PubDate: Wed, 07 Feb 2024 12:52:13 PST
Authors:Shawn E. Fields Abstract: The singular focus on procedural justice police reform is dangerous. Procedurally just law enforcement encounters provide an empirically proven subjective sense of fairness and legitimacy, while obscuring substantively unjust outcomes emanating from a fundamentally unjust system. The deceptive simplicity of procedural justice – that a polite cop is a lawful cop – promotes a false consciousness among would-be reformers that progress has been made, evokes a false sense of legitimacy divorced from objective indicia of lawfulness or morality, and claims the mantle of “reform” in the process. It is not just that procedural justice is a suboptimal type of reform; it is the type of reform that actively frustrates other reforms by dressing up policing with the perception of correctness and legitimacy.And yet, procedural justice dominates police reform policy. Virtually all current federally funded police reform proposals support procedural justice trainings to the exclusion of proposals to address police brutality, eliminate discriminatory overpolicing, demilitarize departments, and end qualified immunity. As a result, a growing procedural justice industrial complex has taken shape. This multilayered public-private partnership between government agencies, academic institutions, and for-profit training companies increasingly helps police departments “protect their brand” and “reduce liability” through procedural politeness, while requiring no changes to unlawful, unnecessary, and violent police behavior.This Article provides the first comprehensive account of this growing complex, charting its roots in community policing and evolving into a cottage industry of private, for-profit purveyors offering costly procedural justice trainings to departments flush with federal grant money. This Article also challenges the dominant scholarly narrative supporting these procedural justice policies, interrogating its role in promoting unnecessary ubiquitous police presence and justifying new racially discriminatory practices like “hot spots policing” and “precision policing.” In doing so, the Article applies these process-oriented critiques to five substantive police reform proposals, exploring how this singular focus on procedural justice distinctly frustrates more necessary transformative reforms in the areas of discriminatory policing, police brutality, police accountability, legal reform, and police abolition. PubDate: Wed, 07 Feb 2024 12:52:09 PST
Authors:Justin Collings et al. Abstract: It is a volatile time in the jurisprudence of the First Amendment’s Religion Clauses. In recent terms, the U.S. Supreme Court has revisited many key Church-State and free exercise questions, and the Justices seem poised to revisit several more. Each of these fundamental questions presupposes an antecedent question: what, for constitutional purposes, is religion itself' The Court has never answered this question consistently or systematically. But, at least in the case of constitutionally mandated religious exemptions, a clear pattern emerges over time: the broader the Court’s definition of religion, the weaker its regime of religious exemptions. The reverse has also been true: when the Court has moved toward more robust accommodations, it has simultaneously narrowed its definition of religion. This Article traces this pattern across time in the United States, as well as in several foreign jurisdictions. The upshot is that, over time and across jurisdictions, the antecedent question of religion’s definition is inescapably linked to the substantive strength of protections for religious exercise. In a time of rapid doctrinal flux, courts and commentators alike should attend more consciously to this strong link. PubDate: Wed, 07 Feb 2024 12:52:05 PST
Authors:Sarah Rajec Abstract: Patent rights are designed to encourage innovation with both the promise of a patent and with its expiration. Currently, patent term lasts from issuance until twenty years from the application date, with minor exceptions. The patent term is limited so that rewards for past invention do not overly hinder future progress. Although the goal is laudable, a uniform patent term is a blunt instrument to achieve such a nuanced balance. Historically, the patent system was not averse to tailoring terms through, for example, individually granted extensions to undercompensated inventors or term curtailment when a foreign patent holder failed to “work” a patented invention in the country. Currently, patent extensions are primarily granted to counteract time spent on administrative processes, and patent terms may be curtailed only by a patent holder through failure to pay maintenance fees or terminal disclaimer.This Article examines current and historical law and doctrine affecting patent duration and suggests changes to better pursue patent policies, making two contributions to the literature. First, this Article groups together all the various term-tailoring mechanisms for analysis, bringing theoretical consistency to analysis of rules that are often considered and analyzed separately. This grouping suggests potential avenues for reform, which is the second contribution. This Article argues that patent maintenance fees are an underused policy lever that allow patent holders rather than administrative agencies to evaluate the worth of inventions, ex post, and choose among simple term curtailment options, lowering third party costs. At the same time, patent term extension and adjustment result in variable extensions and potential term variations globally, while expedited examination remains an underused policy tool. These extensions, too, are ripe for modifications. PubDate: Wed, 07 Feb 2024 12:52:01 PST
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