One-off or a Sign of Things to Come? In Re Cuozzo and the Scope of the United States Patent and Trademark Office’s Rulemaking Authority
By: Allyson E. Mackavage
The America Invents Act (AIA) provided the first comprehensive reform of patent law since the modern patent act was passed in 1952. It was the product of many compromises, and its effect on the balance of power between the United States Patent and Trademark Office (USPTO) and the courts will be an issue for many years to come. The Federal Circuit is beginning to address the USPTO’s authority under the AIA, and In re Cuozzo Speed Technologies may be the first recognition of a shift in the balance.
By: Jordan M. Singer
In 2011, the federal district courts began a pilot program to record and post full-length videos from selected civil proceedings. The program was deliberately structured to preserve the quality and integrity of ongoing adjudication. Three-and-a-half years in, the program has revealed an equally important, and unanticipated, benefit: improving the quality and integrity of future adjudication. This Essay describes this second benefit and explains why the pilot program should be extended beyond its scheduled sunset in July 2015.
Residual Impact: Resentencing Implications of Johnson’s Potential Ruling on ACCA’s Constitutionality
By: Leah M. Litman
In January 2015, the Supreme Court directed the parties to brief and argue an additional question in Johnson v. United States: “Whether the residual clause in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague.” The order represents an unusual move because the defendant had not raised the vagueness issue and the Court issued the order after it had already heard argument on the question raised in the petition for certiorari. Commentators therefore view the order as a signal that the Court will likely invalidate the residual clause. This decision will have been several years in the making: The Supreme Court has had to resolve numerous circuit splits over whether various state criminal convictions qualify as prior convictions for violent felonies under the Armed Career Criminal Act (ACCA), and Justice Scalia has been calling for the Court to invalidate the residual clause for the last few years.
By: Stephen M. Bainbridge
When any Chief Justice of the Delaware Supreme Court speaks on a corporate law topic, lawyers and academics who toil in that doctrinal vineyard listen. When that Chief Justice is Leo Strine, they listen especially closely. The “well-respected” Chief Justice after all is the “[w]underkind of U.S. corporate law” and has been “recognized among academics, practitioners, and other judges” as an “intellectual leader” of the Delaware judiciary. Yet, even mighty Homer nods occasionally.
Negotiating Federalism and the Structural Constitution: Navigating the Separation of Powers Both Vertically and Horizontally
By: Erin Ryan
This Essay explores the emerging literature on the negotiation of structural constitutional governance, to which Professor Aziz Huq has made an important contribution in The Negotiated Structural Constitution. In the piece, Professor Huq reviews the negotiation of constitutional entitlements and challenges the conventional wisdom about the limits of political bargaining as a means of allocating authority among the three branches of government. Building on his previous structural-governance research, he argues that constitutional ambiguities in the horizontal allocation of power are best resolved through legislative–executive negotiation, just as uncertain grants of constitutional authority are already negotiated between state and federal actors in the vertical-federalism context.