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August 17, 2015

The Value of Uncertainty

In the aftermath of the financial crisis, the federal courts have heard arguments in disputes involving billions of dollars worth of securitized financial products—yet it is not clear that the federal courts have subject matter jurisdiction over these cases. In this Essay, Cathy Hwang and Professor Benjamin P. Edwards advance possible explanations for why parties to these disputes do not raise this possible jurisdictional defect, which casts light on potential values of uncertainty in litigation more generally.

July 12, 2015

Crazy in Alabama: Judicial Process and the Last Stand Against Marriage Equality in the Land of George Wallace

In this essay, Professor Wasserman provides new insight into the procedural landscape of marriage-equality litigation in Alabama prior to the Supreme Court's recent decision in Obergefell v. Hodges. By drawing on the limited precedential force of lower federal courts' interpretations of the Constitution and the limited nature of injunctive relief, Wasserman argues that any description of the events in Alabama as "judicial defiance" - or as akin to Alabama's resistance to racial integration in the 1960s - is inaccurate. Wasserman concludes by analyzing Alabama officials' reactions to the Obergefell decision, taking the Obergefell aftermath to further illustrate that, as a matter of judicial procedure, the last stand against marriage equality in Alabama was not as crazy as some commentators have made it out to be.

May 11, 2015

Conversation with Patrick Brayer, Sarah Jane Forman, and Peter A. Joy on Racial Bias in Jury Selection (featuring Professor Destiny Peery)

In this podcast, Professor Destiny Peery moderates a panel of Patrick Brayer, Professor Sarah Jane Forman, and Professor Peter A. Joy, who recently published a three-part series on racial bias in jury selection following a series of high-profile, racially charged events occurring across the country during summer 2014.

April 20, 2015

Restoring the Fact/Law Distinction in Patent Claim Construction

Two decades ago, the Supreme Court sought to promote more effective, transparent patent litigation in Markman v. Westview Instruments by ruling that “the construction of a patent, including terms of art within its claim, is exclusively within the province of the court.” In so doing, the Court removed interpretation of patent claims from the black box of jury deliberations by holding that the Seventh Amendment right to a jury trial did not extend to patent claim construction. Failing to find clear historical evidence of how claim construction was handled in 1791, the Court turned to “the relative interpretive skills of judges and juries and the statutory policies that ought to be furthered by the allocation.” It concluded that federal district court judges were better equipped than juries to resolve the mixed fact/law controversies inherent in construing disputed patent claim terms, thereby leading to more effective and transparent patent litigation. Fully achieving the Court’s goal of more effective and transparent patent litigation, however, depends on district judges having the flexibility to learn pertinent facts, build a reviewable record, and explain the basis for their claim constructions.