For those who believe that legal rules are supposed to predictably map events onto outcomes, federal postconviction law is a frustrating mess. Most of those who try to make sense of it end up with some variant of a pretty cynical model: if the claimant is an inmate convicted in state court, then federal relief is unavailable. Some of us, however, remain cautiously receptive to theories that high-court habeas outcomes express a more complex function. In Habeas and the Roberts Court, Professor Aziz Huq establishes himself as the field’s foremost academic optimist.
81 U Chi L Rev Dialogue 108 [Essay PDF]
A response to 81 U Chi L Rev 519 [Article PDF]
Brian J. Love and Shawn Ambwani
In the roughly two years since inter partes review (IPR) replaced inter partes reexamination, petitioners have filed almost two thousand requests for the Patent Trial and Appeal Board (PTAB) to review the validity of issued US patents. As partial data on IPR has trickled out via the blogosphere, interest from patent practitioners and judges has grown to a fever (and sometimes fevered) pitch. To date, however, no commentator has collected a comprehensive set of statistics on IPR. Moreover, what little data currently exists focuses on overall institution and invalidation rates—data that, alone, gives us little idea whether IPR is thus far accomplishing its original goal of serving as an efficient alternative to defending patent suits filed in federal court, particularly those initiated by nonpracticing entities (NPEs).
81 U Chi L Rev Dialogue 93 [Essay PDF]
Todd E. Pettys
While promoting a new book this past spring, retired justice John Paul Stevens sat down for interviews with Jeffrey Toobin of the New Yorker and Adam Liptak of the New York Times. In both conversations, Stevens sharply criticized the ruling that the US Supreme Court had handed down a few weeks earlier in McCutcheon v Federal Election Commission ... Toobin recounted Stevens’s criticism:
“It’s a grossly incorrect decision,” Stevens said. “The very first sentence of the Chief Justice’s opinion lays out a basic error in this whole jurisprudence. He says that there is ‘no right more basic in our democracy’ than to pick our elected officials. But the case is not about whether individuals can pick their own congressmen. It’s about giving lots of campaign contributions, picking other people’s congressmen, not your own.”
Was Shaun McCutcheon trying to pick “other people’s congressmen,” as Justice Stevens charged, or was he trying to pick his own? Under the vision of federalism that Stevens endorsed on behalf of a majority of the Court nearly twenty years ago, McCutcheon was trying to choose his own leaders.... Even if one takes the contrary view of our federal system and posits that senators and representatives represent only the states and districts from which they come, the First Amendment stands as an obstacle to concluding that long-armed donors’ campaign activities may be uniquely restricted. Absent a dramatic shift, Citizens United and other increasingly entrenched features of our political culture strongly suggest that cross-border campaign spending is here to stay.
81 U Chi L Rev Dialogue 77 [Essay PDF]