Latest Scholarship

August 28, 2015

Professor Peter Lee on "The Supreme Assimilation of Patent Law"

Professor Peter Lee, a leading scholar of patent law, has a new article that will be published in the Michigan Law Review next year. The article is titled "The Supreme Assimilation of Patent Law," and it presents a descriptive theory of Supreme Court patent jurisprudence.

Here is the abstract:

Although tensions between universality and exceptionalism apply throughout law, they are particularly pronounced in patent law, a field that deals with highly technical subject matter. This Article explores these tensions by investigating an underappreciated descriptive theory of Supreme Court patent jurisprudence. Significantly extending previous scholarship, it argues that the Court's recent decisions reflect a project of eliminating "patent exceptionalism" and assimilating patent doctrine to general legal principles (or, more precisely, to what the Court frames as general legal principles). Among other motivations, this trend responds to rather exceptional patent doctrine emanating from the Federal Circuit in areas as varied as appellate review of lower courts, remedies, and the award of attorney's fees. The Supreme Court has consistently sought to eliminate patent exceptionalism in these and other areas, bringing patent law in conformity with general legal standards. Among other implications, this development reveals the Supreme Court's holistic outlook as a generalist court concerned with broad legal consistency, concerns which are less pertinent to the quasi-specialized Federal Circuit. Turning to normative considerations, this Article argues in favor of selective, refined exceptionalism for patent law. Although the Supreme Court should strive for broad consistency, certain unique features of patent law-particularly the role and expertise of the Federal Circuit-justify some departure from general legal norms. Finally, this Article turns to tensions between legal universality and exceptionalism more broadly, articulating principles to guide the deviation of specialized areas of law from transcendent principles.  

You can download Peter Lee's paper at SSRN.

 

August 24, 2015

Doubling Down on Racial Discrimination: The Racially Disparate Impacts of Crimmigration Law

I have a post on casetext.com based on a longer article. An excerpt:

In many parts of the country, state and local police target Latina/os for criminal law enforcement efforts.  Those efforts include racial profiling of Latina/os in ordinary traffic stops, a phenomenon that has been referred to as “driving while brown.”  Latinos are especially vulnerable to arrest for minor traffic violations, such as driving without a license.  (Until recently, few states permitted undocumented immigrants to obtain driver’s licenses.).  Consequently, it should not be surprising that, during the Obama presidency, the vast majority of the persons removed from the country consistently have been from Mexico and Central America, comprising a significantly higher percentage than those groups’ representation in the overall immigrant population in the United States.

The U.S. immigration removal system targets noncitizens who are involved in criminal activity. Relying on state and local police action, which many claim is racially biased due to such practices as racial profiling, the U.S. government removes nearly 400,000 noncitizens a year, with more than 95 percent from Mexico and Latin America (even though the overall immigrant population is much more diverse). State and local governments have resisted some of the federal government’s aggressive removal efforts through “sanctuary laws,” which are designed to build the trust in immigrant communities necessary for effective law enforcement by local police. Reforms in the immigration laws are necessary to reduce the racially disparate impacts of reliance on the criminal justice system for immigration removals.

View the full piece here on casetext.

August 20, 2015

America Has Freaked Out Over Birthright Citizenship For Centuries

Professor Gabriel "Jack" Chin has penned an essay for Talking Points Memo on birthright citizenship, pointing out that the heated rhetoric over the citizenship of children of undocumented immigrants is far from new. "The citizenship status of every non-white racial group has been challenged for literally centuries," he writes.

An excerpt from his piece titled, "America Has Freaked Out Over Birthright Citizenship For Centuries":

The original Constitution said nothing about who was a U.S. citizen. It gave Congress the power, exclusive of the states, to grant citizenship by naturalization, but it neither addressed the requirements for naturalization nor described the legal status of those obtaining naturalized citizenship. In 1790, Congress linked race to citizenship by allowing only “free white persons” to naturalize; racial restrictions of one kind or another were in effect continuously until 1952. The Constitution also provided that only a “natural-born citizen” could be elected president, but here too, the document failed to explain who was a natural-born citizen, leading to repeated controversies about the eligibility of candidates born out of the United States, such as John McCain, George Romney and Ted Cruz.

And yet, even in the earliest days of the Republic, there must have been U.S. citizens. As the Supreme Court and other courts recognized, U.S. citizenship was granted by unwritten law. As a “common law” legal principle, in general, children born in the United States were citizens. However, because the rule was unwritten, its precise contours were debatable. The Supreme Court’s notorious Dred Scott case, decided in 1857, turned on the majority’s conclusion that a person of African ancestry was not a U.S. citizen, even though born here. The Court essentially found an unwritten exception to the unwritten law—namely, that it benefited only whites.

Read the full piece at Talking Points Memo.

August 18, 2015

The “sock removal” case continues: Mellouli v. Lynch and compliance with the Court’s mandate

Cross-posted from SCOTUSblog.

Last June, the U.S. Supreme Court provided Moones Mellouli, a lawful permanent resident who had been ordered removed from the United States, with a victory in his efforts to reverse a removal order.  The Court held that "[f]ederal law ([8 U.S.C.] 1227(a)(2)(B)(i)  . . . did not authorize Mellouli's removal." It did not remand the case to the court of appeals or the Board of Immigration Appeals for further proceedings, thereby suggesting that the case had come to an end.  Nonetheless, there now is a squabble between Mellouli and the U.S. government over just how big Mellouli's victory was.

The Court ruled that Mellouli's removal order based on a single conviction under Kansas law for possession of drug paraphernalia - in this instance, a sock used to conceal a few tablets of a prescription drug - was not authorized by federal immigration law.  The case was returned to the U.S. Court of Appeals for the Eighth Circuit, which, without notice or briefing, remanded the case to the Board of Immigration Appeals (BIA) for further proceedings consistent with the Court's opinion.  A close reading of the order suggests that the court of appeals thought that, despite the seeming finality of the Supreme Court ruling, there still might be a way to remove Mellouli under the drug provisions of the immigration statute.

After the Court's decision, the parties discussed possible resolution of the case.  The U.S. government ultimately announced that it planned to dismiss the removal proceedings without prejudice, thereby leaving open the possibility of reinstituting the proceedings against Mellouli at some point.  In contrast, Mellouli wants to ensure that the proceedings are dismissed with prejudice.

In the Supreme Court, Mellouli now seeks Justice Alito, who disagreed with the majority's rejection of the removal order in Mellouli v. Lynch, to issue a stay to allow Mellouli to pursue efforts, including possible mandamus, to require the U.S. government to dismiss the removal proceedings with prejudice.

One might guess that Justice Alito, as well as the entire Court, would not want to tinker with the intricacies of the implementation of the Court's decision.  However, Mellouli claims that the court of appeals is violating the Court's ruling by remanding for the BIA to come up with a way for justifying removal under the drug provisions of the removal statute when the Court has already ruled that Mellouli is not removable under its provisions.  Efforts to circumvent the Court's ruling just might get Justice Alito's attention.  Indeed, something in Mellouli's stay motion apparently did get his attention and persuaded Justice Alito to request a response by the Department of Justice by 4 p.m. EST on August 20.

In addition, the matter of the finality of the Court's ruling is no small matter to Moones Mellouli.  Mellouli wants certainty that the minor drug paraphernalia conviction does not possibly lead to further removal proceedings and possible detention if he returns to the United States.  He already experienced threatened removal once, having been forced to leave the United States and his fiancé.  (Mellouli remains living outside the country.).  The nature of Mellouli's concerns, and the great potential harms he faces, offers insights into why removal matters differ from the ordinary civil matters handled by the courts.

All in all, the struggle between the Justice Department and Moones Mellouli might seem like small potatoes.  One might legitimately ask, however - as many did as the United States pressed a minor drug paraphernalia involving a sock all the way to the Supreme Court - why the U.S. government is taking such tough litigation positions to no apparent greater end.