Article

Defining Patent Scope by the Novelty of the Idea

Patent law defines novelty by the creation of a new embodiment, not an idea. For example, the Wright brothers are deemed to have invented the airplane because nobody made an airplane before, not because they were the first to think of flying. Patent law then defines monopoly scope through a theory of disclosure of embodiments: despite the airplane being new, the Wright brothers could not patent every airplane, ostensibly because…
Article

Rebellious State Crimmigration Enforcement and the Foreign Affairs Power

The propriety of a new breed of state laws interfering in immigration enforcement is pending before the Supreme Court and the lower courts. These laws typically incorporate federal standards related to the criminalization of immigration (“crimmigration”), but diverge aggressively from federal enforcement policy. Enacting states argue that the legislation is merely a species of “cooperative federalism” that does not trespass upon the federal power over foreign affairs, foreign commerce, and…
Article

Linking the Questions: Judicial Supremacy As a Matter of Constitutional Interpretation

This Article explains that what has been missing from the debate between advocates of popular constitutionalism and defenders of judicial supremacy is any account of the practice of constitutional interpretation. Without a clear sense of what constitutional interpretation involves, one cannot assess the prevailing assumption that the Supreme Court is uniquely positioned to interpret the Constitution or explore an expertise-based justification for its claim to finality. This Article, therefore, revisits…
Panel Discussion on "Engaging Liberty's Refuge"

Introduction—Entering Liberty’s Refuge (Some Assembly Required)

Gregory P. Magarian
This brief discussion of a book I greatly admire, by an author I am fortunate to know as a colleague and a friend, cannot hope to capture all of the book’s important and interesting contributions. I will simply describe three of the book’s primary facets. Liberty’s Refuge is, first, a work of intellectual history: Inazu seeks to recover from history’s tall grass a legally respected Anglo-American tradition of assembly. The…
Panel Discussion on "Engaging Liberty's Refuge"

Commentary—Liberty’s Refuge, or the Refuge of Scoundrels?: The Limits of the Right of Assembly

Liberty’s Refuge is an important book with a lot of original and interesting things to say about the First Amendment. In many ways, however, the best thing about this book is not just what it says, but how it says it. Impressively, while advancing strong and controversial positions, Professor Inazu somehow avoids the trap into which so much constitutional scholarship falls of purporting to provide a final and complete theory…
Panel Discussion on "Engaging Liberty's Refuge"

Commentary—How Necessary Is the Right of Assembly?

Robert K. Vischer
As a political culture seemingly hard-wired for the full-throated championing of individual rights, we are not quite sure what to do with liberty claims by groups. Whether we are talking about corporate speech rights, the treatment of religious student groups at public universities, the limits of the ministerial exception, the Boy Scouts‘ right to discriminate, or churches‘ access to public schools, we have seen a recent spate of conflicts involving…
Panel Discussion on "Engaging Liberty's Refuge"

Commentary—Liberty’s Forgotten Refugees? Engendering Assembly

This paper addresses three specific issues: Professor Inazu‘s treatment of the always-contested divide between public and private, his overly narrow reading of the Supreme Court‘s intimate association doctrine, and his failure to distinguish exclusion from subordination. Although asking the woman question illuminates some of what is absent from Professor Inazu‘s analysis, the paper offers these comments with both collegial enthusiasm for his scholarship and commitment to ―engaging with the ideas…
Panel Discussion on "Engaging Liberty's Refuge"

Response—Factions for the Rest of Us

This response paper highlights the author’s three objectives in writing Liberty‟s Refuge: one diagnostic, one historical, and one normative. The diagnosis highlights difficulties with the current doctrine of intimate and expressive association. The history excavates the prominent role that the right of assembly occupies in our constitutional and popular past. The normative theory contends that we ought to protect dissenting private groups even at the cost of stability and uniformity.…
Commentary

Sell’s Conundrums: The Right of Incompetent Defendants to Refuse Anti-Psychotic Medication

Christopher Slobogin
The Supreme Court’s 2003 decision in Sell v. United States declared that situations in which the state is authorized to forcibly medicate a criminal defendant to restore competency to stand trial “may be rare.” Experience since Sell indicates that this prediction was wrong. In fact, wittingly or not, Sell created three exceptions to its holding (the dangerousness, treatment incompetency, and serious crime exceptions) that virtually swallow the right to refuse.…