Introduction In Boumediene v. Bush, the Supreme Court famously held that the writ of habeas corpus, guaranteed by the Suspension Clause, had “full effect” at Guantanamo Bay, Cuba. But Boumediene did not specify how other constitutional rights, such as the writ’s oftentimes-inextricable partner, the Due Process Clause, should influence the analysis. After Boumediene, the D.C. Circuit…
The Supreme Court has recently expressed increased interest in patent eligibility, or patentable subject matter, the doctrine that limits the types of inventions eligible for patenting. Its two decisions, Mayo Collaborative Services v. Prometheus Laboratories, Inc., in 2012, and Association for Molecular Pathology v. Myriad Genetics, Inc., in 2013, represented the first broad restrictions on…
In Business Roundtable v. SEC, the D.C. Circuit struck down Rule 14a-11, which granted certain shareholders the right to nominate directors on the corporate proxy. The decision is important not only because it halted the SEC’s efforts to regulate proxy access, but also because it imposes a new requirement of cost-benefit analysis for financial regulation.…
When Tarikuwa Lemma was thirteen, she was sold. She and her two sisters were adopted by an Arizona family who were told Tarikuwa’s parents died of AIDS. The truth was that her mother had died during childbirth, but her father and her large extended family were alive and well—and capable of taking care of the…
A striking feature of proceedings at the Foreign Intelligence Surveillance Court (FISC) is that the executive always wins. Between 1979 and 2012—the first thirty-three years of the FISC’s existence—federal agencies submitted 33,900 ex parte requests to the court. The judges denied eleven and granted the rest: a 99.97% rate of approval. This “win rate,” enviable…
Introduction Oral arguments were recently held in the controversial case of Schuette v. Coalition to Defend Affirmative Action. At issue is the constitutionality of a 2008 amendment to the Michigan Constitution that prohibits public universities from “discriminat[ing] against, or grant[ing] preferential treatment to, any individual on the basis of race, sex, color, ethnicity, or national…
While software patents and patent trolls dominate most patent discussions, the Supreme Court has focused on patents in the biotechnology and pharmaceutical space. In addition to deciding a number of antitrust cases involving such patents, the Court has in the last two Terms decided two cases involving the subject matter eligibility of biopharmaceutical patent claims.…
Introduction On March 19, 2013, the Supreme Court issued its highly anticipated decision in Kirtsaeng v. John Wiley & Sons, Inc. At issue was the geographic scope of copyright law’s first-sale doctrine. Historically, this doctrine has functioned as a significant limitation on the rights of copyright holders by allowing lawful owners of copyrighted works to…
Introduction The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) has raised the stakes for financial regulation by requiring more than twenty federal agencies to promulgate nearly 400 new rules. Scholars, regulated entities, Congress, courts, and the agencies themselves have all recognized—even before Dodd-Frank—the lack of rigorous cost-benefit analysis in the context of financial…
In December, the tragedy in Newtown, Connecticut, thrust the Second Amendment into the forefront of national media attention once again. The massacre of schoolchildren by assault rifle reignited a debate among pundits about the meaning of the right to bear arms, but it may surprise many Americans to learn that the Second Amendment continues to…
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…
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…
In one of the most closely watched litigation matters in recent years, the Supreme Court will soon consider Edith Windsor's challenge to the Defense of Marriage Act (DOMA). The Court surprised many observers by granting certiorari, not only on the merits of Windsor's equal protection and due process claims, but also on the question whether…
What are the implications of the Court’s decision to grant certiorari in Hollingsworth v. Perry? Advocates of marriage equality may worry that the Court granted certiorari to overturn the decision. But they should also worry that the Court accepted certiorari to affirm the decision on the same narrow legal and factual grounds relied upon by…
In 2001, two Irish scholars living in the United States set out to compile the recollections of men and women involved in the decades-long conflict in Northern Ireland. The result was the Belfast Project, an oral history project housed at Boston College that collected interviews from many who were personally involved in the violent Northern…
When is software speech for purposes of the First Amendment? This issue has taken on new life amid recent accusations that Google used its search rankings to harm its competitors. This spring, Eugene Volokh coauthored a white paper explaining why Google’s search results are fully protected speech that lies beyond the reach of the antitrust…
Over the past year, states have shown increasing angst about noncitizens registering to vote. Three states—Tennessee, Kansas, and Alabama—have passed new laws requiring documentary proof of U.S. citizenship in order to register. Arizona was the first state to pass such a requirement, but the Ninth Circuit struck it down in April 2012, finding it incompatible…
In December 2007, Angelo Dahlia, a detective for the City of Burbank, California, allegedly witnessed his fellow police officers using unlawful interrogation tactics. According to Dahlia, these officers beat multiple suspects, squeezed the throat of one suspect, and placed a gun directly under that suspect’s eye. The Burbank Chief of Police seemed to encourage this…
The reauthorization of the Violence Against Women Act (VAWA), set to expire this year, has elicited predictable partisan rancor. While there is little chance of the reauthorization being enacted by Congress so close to an election, the Senate draft includes a provision that raises interesting issues for the rights of students involved in sexual assault…
Most people probably figured that the debate over where to try alleged 9/11 mastermind Khalid Sheikh Mohammed (“KSM”) had ended. Indeed, it has been well over a year since Congress forced Attorney General Eric Holder to reluctantly announce that KSM’s prosecution would be referred to the Department of Defense for trial before a Guantanamo military…
