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

Wasserman, Howard M. | July 12, 2015

On June 26, 2015, the Supreme Court of the United States ruled in Obergefell v. Hodges that prohibitions on same-sex marriage violate the Fourteenth Amendment. In hindsight, the decision seems inevitable, the culmination of a precisely two-year race towards marriage equality that began with the Court’s 2013 invalidation of the federal Defense of Marriage Act on June 26, 2013. Federal trial and appellate courts were almost uniform in declaring state bans on same-sex marriage unconstitutional, and the Supreme Court denied certiorari or stays of judgment in all of those cases. Additionally, high-ranking public officials in several states gave up their opposition to marriage equality, ordering the issuance of licenses to same-sex couples even before all litigation had concluded. Alabama represented the glaring exception.

Restoring the Fact/Law Distinction in Patent Claim Construction

Anderson, J. Jonas,Menell, Peter S. | April 20, 2015

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.

Race Matters in Jury Selection

Joy, Peter A. | February 23, 2015

SOX on Fish: A New Harm of Overcriminalization

Haugh, Todd | January 29, 2015

How Not to Apply Actavis

Carrier, Michael A. | December 8, 2014

Patent Imperialism

Chao, Bernard | October 6, 2014

Inventing Around Copyright

Burk, Dan L. | September 19, 2014

Is Resistance to Foreign Law Rooted in Racism?

Lyke, Sheldon Bernard | August 13, 2014