Stanford Law Review最新文献

{"title":"The ghost that slayed the mandate.","authors":"Kevin C. Walsh","doi":"10.31228/osf.io/9hxay","DOIUrl":"https://doi.org/10.31228/osf.io/9hxay","url":null,"abstract":"Virginia v. Sebelius is a federal lawsuit in which Virginia has challenged President Obama's signature legislative initiative of health care reform. Virginia has sought declaratory and injunctive relief to vindicate a state statute declaring that no Virginia resident shall be required to buy health insurance. To defend this state law from the preemptive effect of federal law, Virginia has contended that the federal legislation's individual mandate to buy health insurance is unconstitutional. Virginia's lawsuit has been one of the most closely followed and politically salient federal cases in recent times. Yet the very features of the case that have contributed to its political salience also require its dismissal for lack of statutory subject matter jurisdiction. The Supreme Court has placed limits on statutory subject matter jurisdiction over declaratory judgment actions in which a state seeks a declaration that a state statute is not preempted by federal law--precisely the relief sought in Virginia v. Sebelius. These statutory limits are a sea wall; they keep out, on statutory grounds, some suits that should otherwise be kept out on Article III grounds. The statutory and constitutional limits on federal jurisdiction over suits like Virginia v. Sebelius insulate federal courts from the strong political forces surrounding lawsuits that follow from state statutes designed to create federal jurisdiction over constitutional challenges by states to federal law. This Article identifies previously neglected jurisdictional limits, shows why they demand dismissal of Virginia v. Sebelius, and explains why it is appropriate for federal courts to be closed to suits of this type.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"64 1 1","pages":"55-88"},"PeriodicalIF":4.9,"publicationDate":"2011-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69640047","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"From Bilski back to Benson: preemption, inventing around, and the case of genetic diagnostics.","authors":"Rochelle Dreyfuss,&nbsp;James P Evans","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The long-anticipated decision in Bilski v. Kappos was supposed to end uncertainty regarding the patentability of process claims (or, at the least, business method claims). Instead, the opinion featured a series of anomalies: The Court emphasized strict construction of the Patent Act, but acknowledged three judge-made exceptions to patentability. It disapproved State Street, the Federal Circuit case that had upheld business method patents, but could muster only four votes for the proposition that business methods are in fact unpatentable. But even though the Court upheld business method patents, it invalidated all of Bilski's hedging claims. And while the Justices agreed on one thing - a patent that \"preempts\" something (a mathematical formula, an approach, a commonly used idea, a wide swath of technological developments, the public's access) is bad - they failed to operationalize the concept. That problem had plagued the law prior to State Street; in the interest of preventing the same set of problems from recurring, this Article uses recent empirical studies on gene patents to tease out indicia (\"clues\") to supplement the machine-or-transformation test for determining when a claim is preemptive and therefore invalid. Chief among these clues is the inability to invent around claims that cover broad prospects.</p>","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"63 6","pages":"1349-76"},"PeriodicalIF":4.9,"publicationDate":"2011-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"30019583","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Whose body is it anyway? Human cells and the strange effects of property and intellectual property law.","authors":"Robin Feldman","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Whatever else I might own in this world, it would seem intuitively obvious that I own the cells of my body. Where else could the notion of ownership begin, other than with the components of the tangible corpus that all would recognize as \"me\"? The law, however, does not view the issue so neatly and clearly, particularly when cells are no longer in my body. As so often happens in law, we have reached this point, not by design, but by the piecemeal development of disparate notions that, when gathered together, form a strange and disconcerting picture. This Article examines both property and intellectual property doctrines in relation to human cells that are no longer within the body. In particular, the Article discusses the Bilski decision, in the context of life science process patents, and the Molecular Pathology case, in the context of gene patents. For patent law, the Article concludes that the problem lies not with the fact that genes constitute patentable subject matter, but rather with the extent of the rights that are granted. For both property and intellectual property law, the Article concludes that a more careful application of basic legal principles would better reflect the interests of society as a whole and the interests of individual human subjects, as well as the interests of those who innovate.</p>","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"63 6","pages":"1377-402"},"PeriodicalIF":4.9,"publicationDate":"2011-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"30019582","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Life after Bilski","authors":"Mark A. Lemley, M. Risch, Ted Sichelman, R. P. Wagner","doi":"10.31235/osf.io/cr2zh","DOIUrl":"https://doi.org/10.31235/osf.io/cr2zh","url":null,"abstract":"In Bilski v. Kappos, the Supreme Court declined calls to categorically exclude business methods - or any technology - from the patent law. It also rejected as the sole test of subject matter eligibility the Federal Circuit’s deeply-flawed \"machine or transformation\" test, under which no process is patentable unless it is tied to a particular machine or transforms an article to another state or thing. Subsequent developments threaten to undo that holding, however. Relying on the Court’s description of the Federal Circuit test as a \"useful and important clue', the U.S. Patent and Trademark Office, patent litigants, and district courts have all continued to rely on the machine-or-transformation test in the wake of Bilski: no longer as the sole rule, but as a presumptive starting point that threatens to effectively become mandatory. In this Article, we suggest a new way to understand the exclusion of abstract ideas from patentable subject matter. No class of invention is inherently too abstract for patenting. Rather, the rule against patenting abstract ideas is an effort to prevent inventors from claiming their ideas too broadly. By requiring that patent claims be limited to a specific set of practical applications of an idea, the abstract ideas doctrine both makes the scope of the resulting patent clearer and leaves room for subsequent inventors to improve upon - and patent new applications of - the same basic principle. Recasting the abstract ideas doctrine as an overclaiming test eliminates the constraints of the artificial machine-or-transformation test, as well as the pointless effort to fit inventions into permissible or impermissible categories. It also helps understand some otherwise-inexplicable distinctions in the case law. Testing for overclaiming allows courts to focus on what really matters: whether the scope of the patentee's claims are commensurate with the invention’s practical, real-world contribution. This inquiry, we suggest, is the touchstone of the abstract ideas analysis, and the way out of the post-Bilski confusion.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"63 1","pages":"1315"},"PeriodicalIF":4.9,"publicationDate":"2010-12-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69652448","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Inter-Judge Sentencing Disparity After Booker: A First Look","authors":"R. Scott","doi":"10.2139/SSRN.1446744","DOIUrl":"https://doi.org/10.2139/SSRN.1446744","url":null,"abstract":"A central purpose of the Sentencing Reform Act was to reduce inter-judge sentencing disparity, driven not by legitimate differences between offenders and offense conduct, but by the philosophy, politics, or biases of the sentencing judge. The federal Sentencing Guidelines, despite their well-recognized deficiencies, succeeded in reducing that form of unwarranted disparity. But in a series of decisions from 2005 to 2007, the Supreme Court rendered the Guidelines advisory (Booker), set a highly deferential standard for appellate review (Gall), and explicitly authorized judges to reject the policy judgments of the Sentencing Commission (Kimbrough). Since then, the Commission has received extensive anecdotal reports of a surge in inter-judge disparity at sentencing.This Article provides the first empirical evidence of inter-judge sentencing disparity since the Supreme Court upended federal sentencing, drawing on an original new dataset of sentences from the District of Massachusetts — the only district court that makes key sentencing documents available to the public. The data indicate a clear increase in inter-judge sentencing disparity, both in sentence length and in guideline sentencing patterns. Since Booker, Kimbrough, and Gall, the effect of the judge on sentence length has more than doubled in strength. In cases not subject to a mandatory minimum, the difference between the court’s more lenient and more severe judges translates into an average of more than two years in prison. The decisions also have altered guideline sentencing patterns. Some “business as usual” judges continue to sentence below the guideline range at essentially the same rate as before Booker, while other “free at last” judges now sentence below the guideline range at triple or quadruple their pre-Booker levels.In explaining the spike in inter-judge sentencing disparity, the Article casts doubt on the conventional theories that persistent within-guideline sentencing is the product of inertia, fear of reversal, anchoring effects, strategic behavior, or simple laziness. Instead, it proposes that some judges actually agree with the Guidelines or consciously choose to impose within-range sentences for institutional reasons.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"63 1","pages":"1"},"PeriodicalIF":4.9,"publicationDate":"2010-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68182741","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Through a scanner darkly: functional neuroimaging as evidence of a criminal defendant's past mental states.","authors":"Teneille Brown,&nbsp;Emily Murphy","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>As with phrenology and the polygraph, society is again confronted with a device that the media claims is capable of reading our minds. Functional magnetic resonance imaging (\"fMRI\"), along with other types of functional brain imaging technologies, is currently being introduced at various stages of a criminal trial as evidence of a defendant's past mental state. This Article demonstrates that functional brain images should not currently be admitted as evidence into courts for this purpose. Using the analytical framework provided by Federal Rule of Evidence 403 as a threshold to a Daubert/Frye analysis, we demonstrate that, when fMRI methodology is properly understood, brain images are only minimally probative of a defendant's past mental states and are almost certainly more unfairly prejudicial than probative on balance. Careful and detailed explanation of the underlying science separates this Article from others, which have tended to paint fMRI with a gloss of credibility and certainty for all courtroom-relevant applications. Instead, we argue that this technology may present a particularly strong form of unfair prejudice in addition to its potential to mislead jurors and waste the court's resources. Finally, since fMRI methodology may one day improve such that its probative value is no longer eclipsed by its extreme potential for unfair prejudice, we offer a nonexhaustive checklist that judges and counsel can use to authenticate functional brain images and assess the weight these images are to be accorded by fact finders.</p>","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"62 4","pages":"1119-208"},"PeriodicalIF":4.9,"publicationDate":"2010-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"28954565","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Just the Facts: The Case for Workplace Transparency","authors":"C. Estlund","doi":"10.2139/SSRN.1485535","DOIUrl":"https://doi.org/10.2139/SSRN.1485535","url":null,"abstract":"In many areas of regulation, mandating disclosure of information about a firm’s products, services, production processes, or governance is said to improve the efficiency and rationality of market decisions, avoid fraud, and advance public regulatory goals, all without intruding significantly upon the autonomy of market actors. Yet the idea of regulating through information disclosure has made barely a cameo appearance in the field of labor and employment law. This article begins to fill that void. Mandatory disclosure is no panacea; it may be an overused policy tool in many areas. But in the law of work, mandatory disclosure can play a supportive role both within the ambit of existing substantive mandates and among the many terms and conditions that are above or beyond the reach of substantive mandates. Within the domain of mandatory legal rights or minimum terms, mandatory disclosure may help to improve compliance. Within the large domain that is left to private ordering, mandatory disclosure can improve the operation of labor markets by better informing employees’ choices among and bar-gains with employers. And where neither mandates nor markets meet public aspirations for more socially responsible, fair, and egalitarian workplaces, mandatory disclosure may help to press firms to reach beyond compliance by strengthening and broadening the factual foundation for the reputational rewards and sanctions that are an increasingly significant driver in organizational behavior.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"63 1","pages":"351"},"PeriodicalIF":4.9,"publicationDate":"2009-10-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68186677","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Dispatch from the Supreme Court Archives: Vagrancy, Abortion, and What the Links Between Them Reveal About the History of Fundamental Rights","authors":"Risa Goluboff","doi":"10.2139/SSRN.1428965","DOIUrl":"https://doi.org/10.2139/SSRN.1428965","url":null,"abstract":"This Essay explores the implications for constitutional history of several documents I found in the archives of Supreme Court Justices William O. Douglas, William J. Brennan, Jr., Thurgood Marshall, Potter Stewart, and Harry Blackmun. In particular, I discuss (1) portions of an early draft of Justice Douglas’s opinion in the 1972 vagrancy case of Papachristou v. City of Jacksonville; (2) memoranda from Justices Brennan and Stewart about that opinion; and (3) memoranda between Justices Brennan and Douglas about Roe v. Wade. These documents - which I have reproduced in an appendix - shed new light on several apparently disparate issues in constitutional law: the Supreme Court’s use of void-for-vagueness doctrine; the social and constitutional history of vagrancy law; the possibility and contours of constitutional regulation of substantive criminal law; the relationship between Papachristou and Roe; and the development and conceptualization of substantive due process. These documents invite us to think both more deeply and more broadly about who was engaged in constructing the intellectual framework of modern fundamental rights, about where in the constitution such rights would be located, and about what the contours of such rights would be.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"62 1","pages":"1361"},"PeriodicalIF":4.9,"publicationDate":"2009-07-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68179956","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Did Liberal Justices Invent the Standing Doctrine? An Empirical Study of the Evolution of Standing, 1921-2006","authors":"Daniel E. Ho, Erica Ross","doi":"10.2139/SSRN.1393566","DOIUrl":"https://doi.org/10.2139/SSRN.1393566","url":null,"abstract":"While the standing doctrine is one of the most widely theorized and criticized doctrines in U.S. law, its origins remain controversial. One revisionist view espouses that New Deal progressive justices purposely invented the standing doctrine to insulate administrative agencies from judicial review. Yet existing support for this “insulation thesis” is weak. Our Article provides the first systematic empirical evidence of the historical evolution of standing. We synthesize the theory and claims underlying the insulation thesis and compile a new database of every standing issue decided, along with all contested merits votes, by the Supreme Court from 1921-2006. To overcome conventional problems of haphazard case selection, we amass, read, and classify over 1,500 cases cited in historical treatments of the doctrine, assembling a database of all standing issues contested. With modern statistical methods and this new dataset – comprised of 47,570 votes for 5,497 unique issues and 229 standing issues – we find compelling evidence for the insulation thesis. Before 1940, progressive justices disproportionately deny standing to plaintiffs in cases that largely involve challenges to administrative agencies. After 1940, the political valence of the standing doctrine reverses: progressives uniformly favor standing. Justices Douglas and Black, in particular, track this evolution (and valence reversal) of the standing doctrine. Our results challenge legal inquiries of what claims are traditionally amenable to judicial resolution and highlight the unintended consequences of judicial innovation.","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"62 1","pages":"591"},"PeriodicalIF":4.9,"publicationDate":"2009-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68175259","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Criminal madness: cultural iconography and insanity.","authors":"Russell D Covey","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":51386,"journal":{"name":"Stanford Law Review","volume":"61 6","pages":"1375-428"},"PeriodicalIF":4.9,"publicationDate":"2009-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"28288326","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}