Notre Dame Law Review最新文献

{"title":"Introspection through Litigation","authors":"Joanna C. Schwartz","doi":"10.2139/SSRN.2383605","DOIUrl":"https://doi.org/10.2139/SSRN.2383605","url":null,"abstract":"This Article contends that there is a bright side to being sued: organizational defendants can learn valuable information about their own behavior from lawsuits brought against them. Complaints describe allegations of wrongdoing. The discovery process unearths documents and testimony regarding plaintiffs’ allegations. And in summary judgment briefs, expert reports, pre-trial orders, and trial, parties marshal the evidence to support their claims. Each of these aspects of civil litigation can bring to the surface information that an organization does not have or has not previously identified, collected, or recognized as valuable. This information, placed in the hands of an organization’s leaders as the result of litigation, can be used to improve systems and personnel.This Article considers the information generated by litigation, the gaps lawsuit data can fill in the information otherwise available to organizations, and possible reasons some organizations may gather and analyze litigation data more frequently than others. To illustrate these concepts, I draw on original research of police departments and hospitals and evidence from other organizational settings.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"63 CN_suppl_1 1","pages":"1055-1104"},"PeriodicalIF":0.9,"publicationDate":"2014-12-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88064449","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Vonage Trilogy: A Case Study in 'Patent Bullying'","authors":"Ted Sichelman","doi":"10.2139/SSRN.1856703","DOIUrl":"https://doi.org/10.2139/SSRN.1856703","url":null,"abstract":"This Article presents an in-depth case study of a series of infringement suits filed by “patent bullies.” Unlike the oft-discussed “patent trolls” — which typically sell no products or services and perform no R & D — patent bullies are large, established operating companies that threaten or institute costly patent infringement actions of dubious merit against smaller companies, usually in order to suppress competition or garner licensing fees. In an ideal world of high-quality patents and optimal patent licensing and litigation, infringement suits by aggressive incumbents would have a cleansing, almost Darwinian effect. Yet, defects and distortions in patent examination, licensing, and litigation — the very problems that are raised constantly in the context of patent trolls — generally apply with equal and, often, greater force to patent bullies. Nonetheless, patent bullies have scarcely been discussed in the academic literature or popular press, especially in recent years.More specifically, this Article examines three patent infringement suits filed by incumbent telecommunications carriers — Sprint, Verizon, and AT&T — against Vonage, then an early-stage company providing consumer telephone services over the Internet. Based on a detailed analysis of the patents-at-issue, prior art, court documents, and news accounts, it shows that the incumbents were able to exploit defects in the patent system in order to prevent disruptive technologies from competing with their outmoded products and services. Because startups like Vonage typically lack the resources to vigorously defend against even weak patent suits, patent bullying can result in severe anti-competitive effects. The incumbents in the Vonage suits achieved their intended result — drastically reducing Vonage’s stock price, severely weakening its position in the market, and placing it at the brink of insolvency. This case study demonstrates that further theoretical and empirical study is warranted to assess the full extent of the patent bullying problem.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"27 1","pages":"543"},"PeriodicalIF":0.9,"publicationDate":"2014-12-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80441500","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Constitutional Limits on Surveillance: Associational Freedom in the Age of Data Hoarding","authors":"D. Desai","doi":"10.2139/SSRN.2404782","DOIUrl":"https://doi.org/10.2139/SSRN.2404782","url":null,"abstract":"Protecting associational freedom is a core, independent yet unappreciated part of the Fourth Amendment. New surveillance techniques threaten that freedom. Surveillance is no longer forward looking. Law enforcement can obtain the same, if not more, information about all of us by looking backward. Forward-looking surveillance has limits. Some limits are practical such as the cost to place a person in a car to follow a suspect. There are also procedural limits, such as the requirement that surveillance relate to criminal activity. In addition, surveillance such as wiretapping and using a GPS tracker often requires a warrant. Warrants involve review by a neutral magistrate. The warrant sets limits on what information may be collected, how it is collected, and how it can be used. The surveillance is also time limited and requires continual justification to a judge, or the surveillance will be shut down. With backward-looking surveillance all of these protections are gone. Law enforcement can now use low-cost technology to track us or need only ask a business for the record of where we went, whom we called, what we read, and more. Revelation of the NSA’s vast Prism surveillance project is but the most recent example of law enforcement engaging in this sort of over-reaching surveillance. The FBI has previously deployed similar programs to read mail, obtain lists of books read, demand member lists, and generate watch lists of people to round up in case of national emergency. The efforts vary; the harm is the same. Law enforcement has a perfect picture of our activities and associations regardless of whether they are criminal. With digital records these harms are more acute. Once the data about our activities is gathered, law enforcement may keep that data indefinitely. They have a data hoard. That hoard grows with each new data request. Once created, the hoard can be continually rifled to investigate us but without any oversight. In short, data hoards present new ways to harm associational freedom.Yet, our current understanding of associational freedom is thin. We over-focus on speech and miss the importance of the precursors to speech — the ability to share, explore, accept, and reject ideas and then choose whether to speak. Recent work has shown, however, that the Constitution protects many activities that are not speech, for example petition and assembly, because the activities enable self-governance and foster the potential for speech. That work has looked to the First Amendment. I show that these concerns also appear in Fourth Amendment jurisprudence and work to protect us from surveillance regardless of whether the acts are speech or whether they are private. Drawing on Fourth Amendment principles, I show how warrant procedures, especially the idea of return, which would require deletion of data after an investigation, must be in place for backward-looking surveillance. This shift will allow law enforcement to access data, but limit the ability to ","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"45 1","pages":"579"},"PeriodicalIF":0.9,"publicationDate":"2014-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85952220","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"In the Beginning There Was None: Supreme Court Review of State Criminal Prosecutions","authors":"Kevin C. Walsh","doi":"10.2139/SSRN.2487529","DOIUrl":"https://doi.org/10.2139/SSRN.2487529","url":null,"abstract":"It seems so obvious that the Supreme Court needs to have appellate jurisdiction to review state criminal prosecutions that involve questions of federal law that everybody assumes the Court has always possessed this jurisdiction. But it was not always so. This article challenges the unquestioned assumption of all contemporary scholars of federal jurisdiction that Section 25 of the Judiciary Act of 1789 authorized Supreme Court appellate review of state criminal prosecutions rejecting federal-law-based claims of right, immunities, or defenses. Section 25 is one of the most important provisions of the original judiciary act that gave enduring institutional shape to a federal court system incompletely constructed by Article III. In the landmark 1821 case of Cohens v. Virginia, the Supreme Court held, as a constitutional matter, that the Supreme Court could engage in appellate review of state criminal prosecutions that fit within Article III’s extension of the federal judicial power to cases arising under federal law. The claim that the Court categorically lacked statutory jurisdiction over state criminal prosecutions under Section 25 was neither raised nor decided. And for almost two centuries nobody has thought to examine the issue despite the obvious importance of correctly understanding this key provision of the foundational statute for federal jurisdiction. Building on commentaries by a contemporary critic of Cohens, the astute and once-eminent (but now obscure) Charles Hammond of Ohio, this article offers a combination of neglected arguments and newly discovered evidence tending to establish that Section 25 did not encompass Supreme Court appellate review of state criminal prosecutions. This article’s rediscovery of civil-only Section 25 and its recovery of Charles Hammond’s constitutional vision not only have immediate implications for ongoing scholarly debates over the extent of congressional control over federal jurisdiction, but also have potentially wide-ranging import for generating new insights into the liquidation of Article III and the constitutional construction of the federal judiciary.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"70 1","pages":"1867"},"PeriodicalIF":0.9,"publicationDate":"2014-08-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83411501","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Curious Incident of the Supreme Court in Myriad Genetics","authors":"D. Burk","doi":"10.31235/osf.io/tyvcm","DOIUrl":"https://doi.org/10.31235/osf.io/tyvcm","url":null,"abstract":"Often what is not said is as significant as what is said. In its recent Myriad Genetics decision, the United States Supreme Court is curiously silent about the relationship between its holding in that case and the holding in its immediately previous patent subject matter case, Mayo v. Prometheus. This reticence is all the more puzzling given that the Court initially remanded Myriad to the lower courts for reconsideration in light of the Mayo holding. The Court’s silence regarding Mayo leaves uncertain the relationship between the “products of nature” doctrine that serves as the basis for the Myriad decision, and the “laws of nature” doctrine that has been the basis of nearly all of its other subject matter cases. In this paper I assemble the clues in the laws of nature cases to suggest what the Court might have said or might still say regarding products of nature.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"148 1","pages":"505-542"},"PeriodicalIF":0.9,"publicationDate":"2014-03-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74532170","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Gift of Language","authors":"Joseph Vining","doi":"10.5040/9781472546579","DOIUrl":"https://doi.org/10.5040/9781472546579","url":null,"abstract":"Why is home language important? The language you speak with your children is the first language they will learn. It is their first connection to you, to the rest of their family, and to their culture and community. It is the language they first use to learn about the world around them. It is the language that helps them get “set for life”—and you are a central part of that process! This is one of the many ways parents are their children’s first teachers.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"1 1","pages":"1581"},"PeriodicalIF":0.9,"publicationDate":"2014-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80129797","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory","authors":"Marc O Degirolami, Kevin C. Walsh","doi":"10.2139/SSRN.2399487","DOIUrl":"https://doi.org/10.2139/SSRN.2399487","url":null,"abstract":"Judge Richard Posner’s well-known view is that constitutional theory is useless. And Judge J. Harvie Wilkinson III has lambasted constitutional theory for the way in which its “cosmic” aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson — in the popular press, in law review articles, and in books — have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson also deny that they are offering a theory at all. This is puzzling. How do these judges simultaneously reject constitutional theory yet seemingly replace it with theories of their own? This Article answers that question — a question that must be answered in order to understand the present-day relationship between constitutional theory and constitutional adjudication. The perspectives of Judge Posner and Judge Wilkinson are particularly valuable because they have not only decided hundreds of constitutional cases but have also written extensively about constitutional theory. Drawing on a close reading of revealing slices of both their extrajudicial writing and their judicial opinions in constitutional cases, this Article makes three contributions. First, it brings to light agreements between Posner and Wilkinson that run far deeper than the heralded differences between them and that stem from their situated understanding of their judicial role. Second, it exposes the limited influence of judicial pragmatism and judicial restraint on these judges’ own constitutional jurisprudence even in those cases where one might expect constitutional theory to exert maximal influence. Third, it explains how judicial pragmatism and judicial restraint are best understood not as constitutional theories but as descriptions of judicial dispositions — character traits that pertain to judicial excellence — that can and should be criticized on their own terms.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"328 1","pages":"633"},"PeriodicalIF":0.9,"publicationDate":"2014-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80939474","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Immigration Separation of Powers and the President's Power to Preempt","authors":"Catherine Y. Kim","doi":"10.2139/SSRN.2397402","DOIUrl":"https://doi.org/10.2139/SSRN.2397402","url":null,"abstract":"This article explores the unique separation-of-powers issues raised in the immigration context, focusing on the respective powers of Congress and the President to preempt State law. Pursuant to traditional understanding, Congress and only Congress is constitutionally vested with the authority to displace conflicting State laws. Outside of the immigration context, the Supreme Court nonetheless has invoked competing theories of executive power to justify extending preemptive effect to executive decisions, while at the same time imposing significant doctrinal restrictions on its exercise. In its recent decision in Arizona v. United States, however, the Court departed from these existing doctrinal restrictions to hold that a conflict with the potential exercise of executive prosecutorial discretion suffices to displace State law. In doing so, it signaled an unprecedented expansion of the executive’s power to preempt, one without apparent limit. This article argues that considerations unique to immigration law undermine the utility of existing doctrinal frameworks for limiting executive preemption. Nonetheless, some restriction remains warranted. Given the limitations of the existing doctrines, it proposes a new approach to cabining executive authority in this context.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"38 1","pages":"691"},"PeriodicalIF":0.9,"publicationDate":"2014-02-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89204992","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Putting Paradise in the Parking Lot: Using Zoning to Promote Urban Agriculture","authors":"S. Maloney","doi":"10.2139/SSRN.2352915","DOIUrl":"https://doi.org/10.2139/SSRN.2352915","url":null,"abstract":"This Note explores municipal zoning regulations related to urban agriculture and evaluates specific zoning mechanisms that can be implemented to efficiently promote the accommodation of urban agriculture and access to locally grown food. Consideration of the benefits and costs of urban agriculture, alongside the zoning practices of leading cities, will assist in developing zoning laws that meet the needs of American cities and citizens. Part I of this Note introduces the concept and history of urban agriculture, providing an overview of its benefits and challenges. Part II examines municipal zoning and the principle zoning restrictions that impact farming and gardening in a city. Part III reviews the varied efforts of municipalities to support urban agriculture by incorporating it into local zoning codes. Part IV concludes by offering recommendations for the municipal integration of agriculture into the urban fabric, with particular attentiveness to participatory policy-making in the form of food policy councils.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"83 1","pages":"2551"},"PeriodicalIF":0.9,"publicationDate":"2013-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88503209","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Appointment and Removal of William J. Marbury and When an Office Vests","authors":"S. Prakash","doi":"10.2139/SSRN.2857299","DOIUrl":"https://doi.org/10.2139/SSRN.2857299","url":null,"abstract":"Scholars have ignored the most important question in one of the most famousconstitutional law cases, obscuring the machinations that spawned the dispute. ThisArticle sheds light on the events that precipitated Marbury v. Madison and alsoexplains when an appointment vests. Thomas Jefferson famously refused to deliver acommission to William J. Marbury, causing the latter to seek a writ of mandamus fromthe Supreme Court. The received wisdom supposes that Jefferson’s refusal rested on thegrounds that Marbury had not been appointed a justice of the peace precisely because henever had received a commission. In fact, Jefferson’s delivery argument was a post-hocrationalization, having nothing to do with his actions in March of 1801. JohnAdams’s midnight appointments incensed Jefferson, leading the new President to treatall of the justice of the peace appointments as nullities. To Jefferson, the failure todeliver commissions to some of those appointees mattered not a whit. What seems tohave been far more significant is his sense that the justices of the peace served at hispleasure. Acting on this belief, he simultaneously removed them all and recess appointedmost of them, save for more than a dozen, including William J. Marbury.This Article also addresses whether William J. Marbury and the other midnight appointeeswho never received their commissions were nonetheless appointed, considering fivetheories of when an appointment vests: when the Senate consents; after consent butbefore commissioning; when commissioning occurs; with the delivery of a commission;and with acceptance of the office. In the course of considering these theories, the Articlediscloses the surprising fact that Thomas Jefferson, as Secretary of State, endorsed thesecond theory, namely that appointments vest before the act of commissioning. Moreover,well before Marbury v. Madison, the Adams Administration likewise concludedthat appointments could vest prior to any commission being issued or delivered. Despitethis convergence, the Article contends that none of the five theories is correct becauseeach reads the Constitution as enshrining a single answer regarding when an appointmentvests. There is no single answer. Rather an appointment vests whenever thePresident determines that it shall. The Constitution grants power to the President toappoint, never precisely specifying when or how an appointment vests. By not specifyingwhen or how appointment is made, the Constitution leaves it to the President todecide the manner in which he appoints. This conclusion derives from a general principleof constitutional law: When the Constitution grants power to an entity but doesnot specify the precise means by which it will be exercised, the grantee may decide themeans of exercising it.","PeriodicalId":47176,"journal":{"name":"Notre Dame Law Review","volume":"26 1","pages":"199"},"PeriodicalIF":0.9,"publicationDate":"2013-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82283557","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}