Current Issue

  • Volume 15,
  • 2020


Patents and State Constitutionally Protected Speech
Dan L. Burk

Recent American patent scholarship has begun to explore the intersection of the patent system and guarantees of expressive freedom, noting that patents may impinge on the First Amendment to the Federal Constitution and chill or prohibit protected speech. But guarantees of expressive freedom are not limited to the Federal Constitution; they are also found in state constitutional provisions, some of which offer broader protection than that guaranteed in the First Amendment. In this essay I examine the relationship between federally issued patents and the guarantees of expressive freedom found in state constitutions. State constitutions vary in their wording and interpretation, so my primary focus will be on those states that have viewed their state constitutional provisions as extending beyond the protections offered by the federal First Amendment. While the Supremacy Clause prevents states from overriding federal patent law, I argue here that state constitutional provisions can alter, shape, or even prohibit certain types of patent assertions, just as state law may moderate other uses of personal property. The discussion of this interaction highlights several previously unexplored aspects of the vertical relationship between federal patent policy and state law, and offers an alternative route to vindicating expressive rights encumbered by patents.

Goodbye to Concurring Opinions
Meg Penrose

Modern Supreme Court opinions are too long. They are too fractured. And they often lack clarity. Separate opinions, particularly concurring opinions, are largely to blame. Today’s justices are more inclined to publish separate opinions than their predecessors. The justices do not want to read lengthy briefs but appear willing to publish lengthy opinions. Yet the justices owe us clarity. They should want the law to be understandable—and understood. In hopes of achieving greater legal clarity, this article calls for an end to concurring opinions.

The modern Court writes more separate opinions than past courts. It is becoming far too common that in a given term there will be more separate opinions than majority opinions. This is causing problems for judges, lawyers, law students, and ordinary Americans. Surely most cases do not necessitate separate writing. Whether these separate opinions are driven by ego, politics, law clerks, celebrity, a desire to be a part of the legal “conversation,” or the refusal to accept that a particular justice’s approach failed to garner sufficient votes to serve as the majority opinion, they should stop. A return to seriatim opinions poses institutional risks. Rarely do concurring opinions become future law.

Little is gained through concurring opinions. It is time to discard the myth that an add-on opinion will one day become binding precedent. It rarely happens. And the regular costs are not worth the rare advantages.

This article seeks Supreme Court reform. The justices should voluntarily agree to stop writing concurring opinions. My thesis is simple: it is time to say goodbye to concurring opinions.

A Revised Revisionist Position in the Law of Nations Debate
David M. Howard

One of the most contentious debates in the legal field has continued for decades over the question: is customary international law incorporated into U.S. domestic law? This question has sparked controversy that has resulted in multiple positions but no definite answer—the modern position with Dean Harold Koh and Professor Carlos Vasquez to the revisionist position with Professors Curtis Bradley and Jack Goldsmith. The U.S. Supreme Court has declined to answer this question while acknowledging the importance of its impact on U.S. law. The latest case before the Supreme Court—Jesner v. Arab Bank —touched upon this debate once again, and while its decision implicitly supports the revisionist position, the Court did not resolve this debate.

This Article posits that the revisionist position put forth by Professors Curtis Bradley and Jack Goldsmith was ultimately correct—with a slight revision. This Article concludes that: (1) the traditional law of nations is exclusively within federal law, while modern CIL can be adopted by the states; and (2) the law of nations only becomes federal law if either (a) the Constitution permits or requires the law of nations in interpretation of its provisions; or (b) the political branches adopt CIL or give the judiciary jurisdiction to decide questions regarding the law of nations.

Marriage, Domicile and the Constitution
Mark Strasser

In three of the major right to marry cases in which the plaintiffs challenged their domicile’s refusal to permit them to marry, the couples had married in a sister state in accord with local law. In none of these cases did the Court address the conditions under which states, as a constitutional matter, must recognize marriages validly celebrated in another state. This article argues that the position reflected in the First and Second Restatements of the Conflicts of Law captures the United States Constitution’s approach. A marriage valid in the states of celebration and domicile at the time of its celebration must be recognized throughout the country, contrary policy of the forum state notwithstanding. In addition, the article discusses both the conditions under which states must permit the enjoyment of the incidents of marriage, and some of the changes in state law that would be necessary were the Court to expressly adopt the position advocated here.

Masterpiece Cakeshop and Tolerance as a Constitutional Mandate: Strategic Compromise in the Enactment of Civil Rights Laws
Samuel A. Marcosson

The Supreme Court’s 2018 decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission took up the question whether a state law barring discrimination on the basis of sexual orientation could be applied to a business whose owner had religious objections to participating in a same-sex wedding. The decision turned on the majority’s finding that the Commission’s ruling against Masterpiece Cakeshop was tainted by anti-religious animus, an impermissible basis for government action. The Court did not need to reach the broader question of whether a law like Colorado’s could constitutionally be applied if the agency acted without the impermissible animus. In this article I argue that the Court’s emphasis on animus was consistent with principles deeply embedded in constitutional jurisprudence, from several provisions of the First Amendment, to the Equal Protection Clause of the Fourteenth Amendment. For this reason, it is critical that government actors base their decisions on grounds other than animus. This includes legislators. While Masterpiece Cakeshop involved animus at the enforcement stage, a similar result is likely if hostility to religion played a substantial role in the legislature’s passage of the law. I examine the passage of a Utah law barring discrimination on the basis of sexual orientation and gender identity, and the consideration of a similar law in Kentucky, as models for demonstrating compromise with, and respect for, religious views. This process can insulate these laws from claims that they were the product of anti-gay animus.

W(h)ither Glucksberg?
Ronald Turner

This article is a tale of two significant United States Supreme Court decisions interpreting and applying the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In Washington v. Glucksberg , the Court held that an asserted right to physician-assisted suicide is not a fundamental liberty interest protected by the clause because it is not a right deeply rooted in this nation's history and tradition. More recently, in Obergefell v. Hodges , the Court held that state laws prohibiting same-sex marriage violated the Due Process Clause. In so holding, the Obergefell Court departed from Glucksberg ’s history-and-tradition analysis and instead applied an evolving, generational approach in deciding the substantive due process issue before it. Dissenting in Obergefell, Chief Justice John G. Roberts, Jr. argued that the majority had effectively overruled Glucksberg . A different view was expressed in a 2017 speech by then-Judge and now-Justice Brett M. Kavanaugh in which he argued that Glucksberg stands today as an important precedent insuring that the Court operates as a court of law and not as an institution of social policy. This article examines these differing views and several post-Obergefell decisions shedding helpful but not dispositive light on this important aspect of substantive due process jurisprudence and doctrine. As concluded herein, and contrary to declarations and predictions of its demise, Glucksberg was not overruled, effectively or otherwise, by Obergefell .

Federal Prosecutorial Independence
Todd David Peterson

Of all the controversial presidential actions during President Trump’s first three years in office, few challenged the norms of presidential behavior more than his constant barrage of attacks on his own Department of Justice. President Trump violated traditional norms governing the relationship between the White House and the Department of Justice in two distinct ways. First, on Twitter and in other public statements, he repeatedly called upon the Department to investigate political opponents. Second, the President repeatedly attacked the Department’s investigation of Russian interference with the 2016 presidential election (“the Mueller investigation”) and other investigations relating to the misconduct of the President and his associates. White House interference in cases where the President has a personal or political stake raises obvious conflict-of-interest problems that threaten the impartiality of the criminal justice system. Not since Richard Nixon has a president been so heedless of these potential conflicts of interest. President Trump’s efforts to influence individual investigations raised serious concerns within and outside of the Department of Justice.

Thus far, the academic treatments of President Trump’s DOJ interactions have focused solely on the rules that have traditionally governed the relationship between the White House and the Department of Justice. These articles have made persuasive cases that President Trump’s actions violate these informal norms and constitutionally based policies. Although the President properly must be concerned with the general policies that govern the allocation of prosecutorial resources and the focus of government law enforcement at the Department of Justice, it is a different matter when the White House becomes involved with individual investigations and prosecutions. White House influence over individual cases creates at least the appearance of improper political influence designed to punish opponents and shield the friends of the incumbent President.

The case against White House involvement in individual cases becomes much stronger, however, when placed in the context of constitutional limitations on the involvement of both the judicial and legislative branches in individual prosecutorial decision making. These rules prevent federal judges and the Congress from ordering federal prosecutors to initiate criminal cases or investigations. Moreover, the rules are sufficiently strict to prevent the other branches from influencing prosecutorial decisions through indirect methods such as congressional oversight of open criminal investigations.

The constitutional rules governing federal prosecutorial independence derive from the fundamental constitutional principle that all three branches must act independently before the federal government may punish someone for violating federal criminal law. Congress must act by passing a criminal statute of general applicability; the executive branch must independently investigate potential violations of that law and select individuals for prosecution; and the federal courts must determine individual guilt in a trial where the right to a jury is guaranteed. Thus, judicial and legislative involvement in individual prosecutorial decisions is constitutionally forbidden not because the involvement infringes on the President’s authority, but rather because such involvement would impermissibly aggrandize the other branches by giving them power over more than one stage of the three-stage federal criminal justice process.

These constitutional restrictions on judicial and legislative involvement in prosecutorial decisions strongly reinforce the case for prosecutorial independence from White House involvement in individual cases and investigations. The integrity of the process depends upon prosecutorial decisions that are free from political influence and based solely on the merits of the individual case. Each branch must play its part independently of the others, and the role of the executive branch is compromised if political influence taints the process of independent prosecutorial decision-making.

How then might we might respond to these challenges to federal prosecutorial independence? The first response is conceptual. We can reinforce the norm of prosecutorial independence within the executive branch by placing it in the context of the separation-of-powers principles that mandate prosecutorial independence from the judicial and legislative branches. These principles explain why the norm of prosecutorial independence from the White House in individual cases is so important. Second, Congress has several informal mechanisms to strengthen and preserve this norm, including oversight hearings and the Senatorial confirmation process. Third, we should consider potential statutory or regulatory changes that would protect prosecutorial independence in individual cases while respecting the President’s constitutional power to direct the general policies and management of the Department of Justice.

Intratextual and Intradoctrinal Dimensions of the Constitutional Home
Gerald S. Dickinson

The home has been lifted to a special pantheon of rights and protections in American constitutional law. Until recently, a conception of special protections for the home in the Fifth Amendment Takings Clause was under-addressed by scholars. However, a contemporary and robust academic treatment of a home-centric takings doctrine merits a different approach to construction and interpretation: the intratextual and intradoctrinal implications of a coherent set of homebound protections across the Bill of Rights, including the Takings Clause.

Intratextualism and intradoctrinalism are interpretive methods of juxtaposing non-adjoining and adjoining clauses in the Constitution and Supreme Court doctrines to find patterns of meaning in words and jurisprudence. Applying these methodological exercises to the first five amendments in the Bill of Rights reveals deeper thematic connections among the textual and doctrinal protections to the home. This cross-pollination of constitutional clauses and doctrines also offers scholars and jurists normative doctrines to provide greater protections to homes beyond the traditional protections that have existed for decades under Supreme Court jurisprudence.