Category: 91:4

Click to access 91.4.6.pdf

Click to access 91.4.5.pdf

Now in our second decade after 9/11, we are firmly in the prevention era of law enforcement. Faced with the unacceptable consequences of identifying threats too late, government agents are moving aggressively to identify potential terrorists before they strike. Undercover agents and confidential informants necessarily play a large role in such efforts. As a result of such operations, we have seen a number of cases brought to trial in the federal courts in which defendants have asserted the entrapment defense. To date, the defense has not succeeded. However, as a consequence of these cases, the United States Supreme Court may be required to reconsider the defense for the first time in over twenty years. Thus, now is a good time to re-examine the entrapment defense that the Supreme Court first recognized eighty years ago. This Article argues that the federal entrapment defense represents a doctrinal anomaly that straddles the line between criminal procedure and criminal substance. Understanding how and why the entrapment defense evolved as it did may engender greater sympathy for this much-maligned corner of the criminal law. It could also lead to reforms in the way the defense is administered that would better serve the interests that animate the defense—some sounding in the traditional concerns of substantive criminal law (culpability and dangerousness) and others in the traditional concerns of criminal procedure (deterring overzealous and unwarranted intrusions by government agents).

Click to access 91.4.4.pdf

In many patent infringement cases, the only practical way that the plaintiff can obtain relief is on a theory of secondary liability, which is generally referred to as indirect infringement. The remedy in patent cases frequently includes damages for past infringement. Because jury verdicts in patent cases can amount to hundreds of millions of dollars, patent damages have become a hotly litigated issue. Nevertheless, much to the frustration of the litigants in these high-stakes lawsuits, the courts continue to struggle to clarify how damages for indirect infringement should be determined.

The Court of Appeals for the Federal Circuit, which has exclusive appellate jurisdiction over patent cases, has deepened the confusion over calculating damages. Two opinions from the Federal Circuit have made contradictory pronouncements on the issue of accounting for proven acts of primary (i.e., direct) infringement in determining damages for indirect infringement. Lucent Technologies, Inc. v. Gateway, Inc. held that the extent of directly infringing use of the patent should be viewed as one of many pieces of evidence for measuring the extent of damages (“the evidentiary approach”). In contrast, Cardiac Pacemakers, Inc. v. St. Jude Medical, Inc. endorsed a rule that enables trial judges to limit damages as a matter of law to proven, enumerated acts of direct infringement of the asserted patents (“the atomistic approach”).

The conflict between the two approaches raises fundamental, unanswered questions concerning the relationship between patent infringement and ordinary torts. This Article fills a gap in the literature by identifying, and working toward unraveling, one of the puzzles of indirect infringement. Specifically, it examines what the legal fiction of formally imputing an act of one entity to another—an important tenet of secondary liability in tort—means for patent damages. The answer is surprising: the atomistic approach is consistent with the principles of tort law, but is at odds with well-established, general rules for determining patent damages. Conversely, the evidentiary approach seems to ignore tort law’s imputation principle and embodies the pragmatic, patent-specific damages rules that the atomistic approach eschews. This Article resolves the tension in favor of the evidentiary approach and explains that considerations of policy, logic, and precedent support a damages analysis that reflects fundamental differences between patent law and tort law.

Click to access 91.4.3.pdf

The filibuster in the United States Senate effectively imposes a supermajority vote requirement to pass any legislation. Both supporters and critics of the filibuster agree that any filibuster reform would require extraordinary measures. In contrast to this consensus, this Article describes a method we call the “conventional option,” which allows the filibuster to be reformed by a simple majority of senators at any time using ordinary Senate procedures. As we show below, a majority of senators using the conventional option (1) cannot be filibustered; (2) can act on any day the Senate is in session (not just at the beginning of a new Congress); and (3) does not need to invoke the Constitution. In fact, this Article shows that both the U.S. House of Representatives and the Senate have limited filibustering in the past by using the conventional option described here.

Click to access 91.4.2.pdf

By tradition, gifts, wills, and contracts are formalized according to protocols established within each legal category. This Article examines the policies that underlie these “formalizing rules” and concludes that the utility of those rules depends fundamentally on the background conditions under which a gift, will, or contract occurs. Those background conditions, rather than the category into which the transfer falls, dictate the optimal formalizing rule for a transfer. In light of this observation, this Article proposes an integrated approach to formalizing rules that varies the required formalities for a transfer on the basis of situational criteria rather than the prevailing categorical ones.

Click to access 91.4.1.pdf