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Author: Stanford Law Review

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Stanford Law Review Online: Schuette v. Coalition to Defend Affirmative Action and the Forgotten Oath

Stanford Law Review

The Stanford Law Review Online has just published an Note by David R. Friedman entitled Schuette v. Coalition to Defend Affirmative Action and the Forgotten Oath. Mr. Friedman argues that:

[M]any of the Justices, especially Justices Sotomayor and Ginsburg, seemed troubled by the implications of Michigan’s amendment for traditionally disadvantaged minorities. At the same time, several Justices seemed perplexed by the potentially wide scope of a doctrine that, in its most expansive form, subjects every law that moves a decision from one level of government to another to strict scrutiny. For instance, if Michigan’s constitutional amendment is subject to strict scrutiny, is Title VII subject to strict scrutiny? Is the Fair Housing Act? Is 42 U.S.C. § 1983? All three of these laws similarly move a decision involving race—the decision of how much governmental protection to provide against racial discrimination—from one level of government (the states) to another (the federal government). These types of potential consequences led to a great deal of time being consumed by questions looking to answer that classic legal question: where do we draw the line?!

He concludes:

The Michigan electorate should be required to pay now or pay later to prove that the laws of its state do not violate the Constitution. If it chooses to pursue a state constitutional amendment through direct initiative, it will trade the scrutiny of the legislative process, mediated by those who have taken an Article VI oath to uphold the Federal Constitution, for the burden of affirmatively proving that its measure is constitutional.!footnote_21 If it chooses instead to lobby its state legislature to propose a state constitutional amendment, it will face no such burden later in the process. Only by requiring this choice can we really be sure that “equal treatment” is actually the same as “equal protection” in this case.

Read the full article, Schuette v. Coalition to Defend Affirmative Action and the Forgotten Oath at the Stanford Law Review Online.

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Stanford Law Review Online: Biomedical Patents at the Supreme Court: A Path Forward

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Professor Arti K. Rai entitled Biomedical Patents at the Supreme Court: A Path Forward. Professor Rai argues that:

While the Supreme Court’s opinions rightly focus on innovation, they fall short in their efforts to prescribe how patent eligibility can be used to promote innovation goals. Critics have bemoaned the uncertainty created by the Court’s decisions. The Mayo case in particular has prompted justifiable concern that its resuscitation of old, and long-criticized, approaches to subject matter eligibility will undermine the promise of personalized medicine.

She concludes:

Without a doubt, the Court’s recent spate of activity in the area of patent eligibility and diagnostic patenting has caused considerable anxiety for those concerned about innovation. Ideally, the question of subject matter eligibility would have been addressed more fully decades earlier. At least on the reading advanced here, however, the Court’s opinions may not pose the barrier to innovation that some fear.

Read the full article, Biomedical Patents at the Supreme Court: A Path Forward at the Stanford Law Review Online.

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Stanford Law Review Online: Privacy and Big Data

Stanford Law Review

The Stanford Law Review Online has just published a Symposium of articles entitled Privacy and Big Data.

Although the solutions to many modern economic and societal challenges may be found in better understanding data, the dramatic increase in the amount and variety of data collection poses serious concerns about infringements on privacy. In our 2013 Symposium Issue, experts weigh in on these important questions at the intersection of big data and privacy.

Read the full articles, Privacy and Big Data at the Stanford Law Review Online.

 

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Stanford Law Review Online: Kirtsaeng and the First-Sale Doctrine’s Digital Problem

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Professor Clark D. Asay entitled Kirtsaeng and the First-Sale Doctrine’s Digital Problem. Professor Asay argues that:

[T]he history and purpose of the first-sale doctrine provide good reasons to abandon the licensee/owner dichotomy as well as the formalistic approach to interpreting the doctrine’s applicability to digital transfers. Doing so, furthermore, is unlikely to undermine markets for copyrighted works, but instead will help preserve the appropriate balance between the rights of copyright holders and consumers that first-sale rights have historically helped maintain.

He concludes:

The Kirtsaeng decision helped further cement the first-sale doctrine as an important limitation on the rights of copyright holders. But more cement is needed. Specifically, as the digitization of copyrighted works increases, first-sale rights face increasing peril as copyright holders subject consumers to click-through agreements that eviscerate first-sale rights in effect if not in theory. Furthermore, some courts have recently employed a formalistic ap-proach to the statutory text that renders first-sale rights simply inapplicable to digital transfers. If Kirtsaeng is to avoid becoming the first-sale doc-trine’s “swan song,” courts and Congress must respond to save it.

Read the full article, Kirtsaeng and the First-Sale Doctrine’s Digital Problem at the Stanford Law Review Online.

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Stanford Law Review Online: Dodd-Frank Regulators, Cost-Benefit Analysis, and Agency Capture

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Professors Paul Rose & Christopher J. Walker entitled Dodd-Frank Regulators, Cost-Benefit Analysis, and Agency Capture. Professors Rose and Walker argue that Dodd-Frank regulators should consider more
seriously the democratic accountability concerns at play when regulating the financial markets.

The lack of attention to accountability is particularly troubling in the Dodd-Frank con-text, where most regulators are independent agencies and thus less demo-cratically accountable via presidential oversight. In particular, independent agencies are not required to submit proposed rules and accompanying eco-nomic analyses for presidential review. Nor are their high-ranking officials subject to plenary presidential removal authority. Without another means of accountability—e.g., a robust cost-benefit analysis embedded in notice-and-comment rulemaking—independent agencies are more vulnerable to agency capture.

They conclude:

Despite decades-long bipartisan support for cost-benefit analysis, regu-lators of financial markets (whose rulemaking is not subject to presidential review) have been slower and more haphazard in adopting this method than their executive agency counterparts. Especially now that Dodd-Frank has exponentially increased the amount of financial rulemaking and considera-bly raised the stakes for regulating the financial markets, financial regula-tors can and should ground their rulemaking in a proper cost-benefit analy-sis to arrive at more rational decisionmaking and more efficient regulation. Conducting a rigorous cost-benefit analysis via notice-and-comment rule-making also makes for good governance. Without such public transpar-ency—especially in the context of independent agencies—democratic accountability suffers, and agency capture becomes a greater threat.

Read the full article, Dodd-Frank Regulators, Cost-Benefit Analysis, and Agency Capture at the Stanford Law Review Online.

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Stanford Law Review Online: Of Arms and Aliens

Stanford Law Review

The Stanford Law Review Online has just published a Note by Anjali Motgi entitled Of Arms and Aliens. Ms. Motgi examines, in light of the Newtown tragedy in December, how the Second Amendment has continued to fuel debate over a topic of national importance: the rights of illegal immigrants.

Still, the questions that compelled the Tenth Circuit not to touch the Second Amendment issue—including whether gun ownership is a “private right[] not generally denied aliens, like printing newspapers or tending a farm,” or is, like voting, limited to citizens—must one day be answered. Meanwhile, district courts have offered their own analyses of the meaning of “the people.” And this issue is one that could potentially align normally opposed constituencies: conservatives who seek to prevent government abuse by supporting the fundamentality (and therefore the expansive scope) of the Second Amendment as an individual right, and progressives who seek to expand our notion of community by increasing the panoply of rights to which immigrants have access.

She concludes:

Behind all of this dwells the idea that we are a “people,” a notion that undergirds not just diverse areas of American jurisprudence but also our public imagination. Bracketing the controversy over what the Second Amendment protects—possession of semiautomatic assault rifles and large stores of ammunition or something less—to consider the co-occurrence of the Fourth Circuit ruling in Carpio-Leon and the Sandy Hook tragedy raises a peculiar juxtaposition around the “who” of this right: is a father who keeps a rifle at home to protect his wife and three children, or a ranch hand who carries a gun to guard farm animals against predators, less a member of “the people” than a suburban divorcée with a passion for trips to the shooting range? Whatever the Founders meant in drafting the Second Amendment, it seems improbable that they foresaw that it would become a locus for public dialogue about the boundaries of the national community.

Read the full article, Of Arms and Aliens at the Stanford Law Review Online.

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Stanford Law Review, 65.2 (2013)

Stanford Law Review

Volume 65 • Issue 2 • February 2013

Articles
Modeling Uncertainty in Tax Law
Sarah B. Lawsky
65 Stan. L. Rev. 241

Double Immunity
Aaron Tang
65 Stan. L. Rev. 279

Torts & Estates: Remedying Wrongful Interference with Inheritance
John C.P. Goldberg & Robert H. Sitkoff
65 Stan. L. Rev. 335

Woman Lawyer: The Trials of Clara Foltz
Barbara Babcock
65 Stan. L. Rev. 399

For more articles and recent analysis of legal issues, visit our website: http://www.stanfordlawreview.org.

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Stanford Law Review Online: Anticipating Patentable Subject Matter

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Dan L. Burk entitled Anticipating Patentable Subject Matter. Professor Burk argues that the fact that something might be found in nature should not necessarily preclude its patentability:

The Supreme Court has added to its upcoming docket Association for Molecular Pathology v. Myriad Genetics, Inc., to consider the question: “Are human genes patentable?” This question implicates patent law’s “products of nature” doctrine, which excludes from patentability naturally occurring materials. The Supreme Court has previously recognized that “anything under the sun that is made by man” falls within patentable subject matter, implying that things under the sun not made by man do not fall within patentable subject matter.

One of the recurring arguments for classifying genes as products of nature has been that these materials, even if created in the laboratory, could sometimes instead have been located by scouring the contents of human cells. But virtually the same argument has been advanced and rejected in another area of patent law: the novelty of patented inventions. The rule in that context has been that we reward the inventor who provides us with access to the materials, even if in hindsight they might have already been present in the prior art. As a matter of doctrine and policy, the rule for patentable subject matter should be the same.

He concludes:

“I can find the invention somewhere in nature once an inventor has shown it to me” is clearly the wrong standard for a patent system that hopes to promote progress in the useful arts. The fact that a version of the invention may have previously existed, unrecognized, unavailable, and unappreciated, should be irrelevant to patentability under either novelty or subject matter. The proper question is: did the inventor make available to humankind something we didn’t have available before? On this standard, the reverse transcribed molecules created by the inventors in Myriad are clearly patentable subject matter.

Read the full article, Anticipating Patentable Subject Matter at the Stanford Law Review Online.

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The Stanford Law Review Online: School Security Considerations After Newtown

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Jason P. Nance entitled School Security Considerations After Newtown. Professor Nance writes that strict school security measures may be ineffective but have a balkanizing effect:

On December 14, 2012, and in the weeks thereafter, our country mourned the deaths of twenty children and six educators who were brutally shot and killed at Sandy Hook Elementary School in Newtown, Connecticut. Since that horrific event, parents, educators, and lawmakers have understandably turned their attention to implementing stronger school security measures to prevent such atrocities from happening again. In fact, many states have enacted or proposed legislation to provide additional funds to schools for metal detectors, surveillance cameras, bulletproof glass, locked gates, and law enforcement officers. Because increased security measures are unlikely to prevent someone determined to commit a violent act at school from succeeding, funding currently dedicated to school security can be put to better use by implementing alternative programs in schools that promote peaceful resolution of conflict.

He concludes:

The events at Newtown have caused all of us to deeply consider how to keep students safe at school. A natural response to this atrocity is to demand that lawmakers and school administrators invest our limited public funds into strict security measures. But this strategy is misguided. Empirical evidence suggests that these additional investments in security equipment and law enforcement officers may lead to further disparities along racial and economic lines. Further, it is imperative that all constituencies understand that there are more effective ways to address violence than resorting to coercive measures that harm the educational environment. Indeed, schools can make a tremendous impact in the lives of students by teaching students appropriate ways to resolve conflict and making them feel respected, trusted, and cared for. These are the types of schools that can make a real difference in the lives of students.

Read the full article, School Security Considerations After Newtown at the Stanford Law Review Online.

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Stanford Law Review, 65.1 (2013)

Stanford Law Review

Volume 65 • Issue 1 • January 2013

Articles
Removal as a Political Question
Aziz Z. Huq
65 Stan. L. Rev. 1

Putting Desert in its Place
Christopher Slobogin & Lauren Brinkley-Rubinstein
65 Stan. L. Rev. 77

A Clinic’s Place in the Supreme Court Bar
Jeffrey L. Fisher
65 Stan. L. Rev. 137

Notes
Counterfactual Contradictions: Interpretive Error in the Analysis of AEDPA
Amy Knight Burns
65 Stan. L. Rev. 203