Professor David Schwartz’s new article, recently uploaded to SSRN and mentioned here last week, was featured in two law blogs today. Analyzing the Role of Non-Practicing Entities in the Patent System, co-authored with Jay P. Kesan of the University of Illinois College of Law, was given a comprehensive review in both Patentology and Gametime IP. Follow the links to read more.
Vinay Harpalani, one of Chicago-Kent's new Visiting Assistant Professors, was recently mentioned in Lawrence Solum's Legal Theory Blog for a piece of current scholarship titled "Diversity within Racial Groups and the Constitutionality of Race Conscious Admissions." The article, which will appear in the forthcoming fall issue of the University of Pennsylvania Journal of Constitutional Law, addresses key issues in the upcoming Fisher v. University of Texas at Austin Supreme Court case. The Court will hear this case on Wednesday, October 10. Here is the abstract for the article:
"This Article offers a novel doctrinal resolution of the key issues in Fisher v. Texas, the impending Supreme Court case which involves race conscious admissions policies at the University of Texas at Austin (UT). The resolution proposed here addresses Justice Anthony Kennedy’s concerns about race conscious policies, but also preserves most of the Court’s 2003 Grutter v. Bollinger ruling, in spite of the fact that Justice Kennedy dissented in Grutter. Substantively, the Article clarifies the key issues in Fisher (the meaning of “critical mass” and the scope of deference that courts give to universities) by focusing on a simple idea that permeates Grutter and Fisher but has not been explicated to date: the significance of diversity within racial groups. It argues that under Grutter, a race conscious policy can aim not only to increase minority representation overall, but also to increase diversity within racial groups — a point which has not been discussed in the Fisher litigation or in scholarly discourse.
Professor Sungjoon Cho has posted a new article to SSRN titled "Reconstructing World Politics: Norms, Discourse, and Community." Here is the abstract:
"This Article argues that the conventional (rationalist) approach to world politics characterized by political bargain cannot fully capture the new social reality under the contemporary global ambience where ideational factors such as ideas, values, culture, and norms have become more salient and influential not only in explaining but also in prescribing state behaviors. After bringing rationalism’s paradigmatic limitations into relief, the Article offers a sociological framework that highlights a reflective, intersubjective communication among states and consequent norm-building process. Under this new paradigm, one can understand an international organization as a “community” (Gemeinschaft), not as a mere contractual instrument of its contracting parties (Gesellschaft). The Article applies the new paradigm to the World Trade Organization (WTO) as it describes the WTO’s institutional evolution from a power-oriented, tariff-reducing contract to a norm-oriented world trade community."
Download the paper here.
Professor Sheldon Nahmod has posted a new article to SSRN titled "The Long and Winding Road from Monroe to Connick." The article appeared in the spring issue of this year's Loyola University New Orleans Journal of Public Interest Law. Here is the abstract:
"In this article, I address the historical and doctrinal development of § 1983 local government liability, beginning with Monroe v. Pape in 1961 and culminating in the Supreme Court’s controversial 2011 failure to train decision in Connick v. Thompson. Connick has made it exceptionally difficult for § 1983 plaintiffs to prevail against local governments in failure to train cases. In the course of my analysis, I also consider the oral argument and opinions in Connick as well as various aspects of § 1983 doctrine. I ultimately situate Connick in the Court’s federalism jurisprudence which doubles back to Justice Frankfurter’s view of federalism as set out in in his dissent in Monroe."
Download the paper here.
As always, read more of Professor Nahmod's expert law commentary at his blog, Nahmod Law.
Professor David Schwartz has posted a new article, co-authored with Jay P. Kesan of the University of Illinois College of Law, to SSRN. Analyzing the Role of Non-Practicing Entities in the Patent System contributes new data to the debate about the role of non-practicing entities in patent litigation. Here is the abstract:
“Currently, there is an important debate about the role of non-practicing entities in patent litigation. People are asking: what are the costs and benefits associated with NPE litigation? Are they too high, too low, or just right? This paper makes two contributions to the discussion. First, we review a recent study, “The Direct Costs of NPE Disputes,” by James Bessen and Michael J. Meurer. The study presents new data on the litigation costs and settlement expenses incurred by a subset of defendants in NPE cases. Some of their findings are provocative, but we find their methodology to be deficient in several respects, which limits the usefulness of the data and thus the implications that can be drawn from them. We also offer suggestions for future research on NPEs, including data collection and analysis. Second, we argue that the study asks the wrong question. The debate should be reframed to focus on the merits of the lawsuits, including patent system changes focusing on reducing transaction costs (e.g., lawyers’ fees) in patent litigation, instead of focusing solely on whether the patent holder is a non-practicing entity.”
Download the paper here.
Joan Steinman has recently posted "Appellate Courts as First Responders: The Constitutionality and Propriety of Appellate Courts' Resolving Issues in the First Instance" to SSRN. The article appeared in the most recent issue of the Notre Dame Law Review. Here is the abstract:
"Is there any place in our system for appellate courts to rule on issues that no inferior court has ruled upon? In fact, there are a surprising number of occasions on which courts of appeals, including the United States Supreme Court, address and decide questions that a trial court judge did not decide. On those occasions, they are not reviewing the decision of another tribunal. The Supreme Court has declared that intermediate federal courts of appeals (“IFACs”) have discretion to decide when they will address such issues.