All Online Essays

In the essay, Mr. Pierce discusses what, exactly, the government must prove before it can, consistent with the First Amendment, prosecute someone who posts threatening messages on Facebook. Last Term, a divided Court wrestled with this issue in Elonis v. United States, reversing the defendant’s conviction but leaving an important question unanswered: does the government need to prove that a speaker was reckless with his words or, alternatively, that he specifically intended them to be interpreted as threats? The essay suggests that instead of deciding which standard is best for all online threats, lower courts should adopt libel law’s distinction between public and private targets, and similarly apply a heightened mens rea standard only when the speech at issue targets public figures. A Facebook post containing violent language about one’s elected representative implicates free speech values in a way that an otherwise similarly threatening post targeting one’s ex-wife (like Elonis’s) does not.

In the review, Kovvali discusses and critiques certain philosophical underpinnings of “nudges.” Nudges are small interventions that change the context in which decisions are made, thus encouraging individuals to make specific choices. Using an analogy to voting paradoxes, Kovvali shows that nudges exploit a type of irrationality that results when citizens attempt to reconcile inconsistent objectives, and concludes that while insights about irrationality are useful when government officials ask how to design an intervention, they often do not provide a convincing justification for why an intervention is needed.

In this essay, Professor Wilson reflects on the manner in which the law treats adolescents who are faced with end-of-life decisions. She begins by surveying the legal framework underlying end-of-life choices at the state and federal levels. She then discusses two decisionmakers – adolescents and adults – and the behavioral traits and biases that animate each when end-of-life decisions arise. In doing so, Wilson draws upon a rich body of empirical work on human decisionmaking. Wilson concludes that placing end-of-life decisions solely in the hands of adolescents or adults can result in suboptimal choices. She proposes the use of a bioethical mediator to counteract biases, reduce disagreement, and assist all parties in reaching the best possible outcome.

In the aftermath of the financial crisis, the federal courts have heard arguments in contract 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, we advance possible explanations for why parties to default disputes do not raise this possible jurisdictional defect.

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.

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.