Category: Notes

Unreasonably Wrong: The Supreme Court’s Supremacy, the AEDPA Standard, and Carey v. Musladin – Note by Padraic Foran

From Volume 81, Number 3 (March 2008)
DOWNLOAD PDF

Plenty of injustices go judicially unresolved. On the Supreme Court’s docket, however, injustices in the criminal context have become alarmingly perfunctory, and the cause is a single procedural mechanism: a piece of legislation passed in 1996 called the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). Though in effect for more than ten years now, two representative cases serve to demonstrate the enormous power of the AEDPA.

 

81_571

 

Effecting the Impossible: An Argument Against Tax Strategy Patents – Note by Michael Moulton

From Volume 81, Number 3 (March 2008)
DOWNLOAD PDF

In 1998, in State Street Bank & Trust Co. v. Signature Financial Group, Inc., the U.S. Court of Appeals for the Federal Circuit rejected the contention that “business methods” are per se unpatentable, and stated that a business process patent can be granted on the same basis as any other patentable invention. The decision fostered a new awareness that business method claims could be patented, and in the wake of State Street Bank, the United States Patent and Trademark Office (“USPTO”) saw an almost six-fold increase from 1998 to 2001 in the number of patent applications for business methods. While some commentators applauded the State Street Bank decision, others maintained that methods of doing business should be an excluded category of invention, articulating that the traditional filters of patent law are not appropriately sized to sieve overly broad business practices from attaining patent protection. Despite those concerns, business methods remain patentable inventions.

 

81_631

 

Turbulence in the Airline Industry: Rethinking America’s Foreign Ownership Restrictions – Note by Josh Cavinato

From Volume 81, Number 2 (January 2008)
DOWNLOAD PDF

The dawn of the twenty-first century has proven to be one of the most tumultuous times for the U.S. airline industry. Industry losses have soared past a staggering $40 billion since 2001, sending four of the top seven airlines—United, Northwest, Delta, and USAirways—into bankruptcy protection with others, such as American, narrowly averting the same fate. One estimate put half of all seats on U.S. airlines as belonging to bankrupt carriers. At a time of relative economic growth for the economy as a whole, the airline industry has weathered massive layoffs and pension fund defaults, including United’s record $9.8 billion pension default in 2005. As several airlines are seeking new sources of capital as one way to help regain the posture of the aviation industry as a global leader, a law restricting foreign sources of capital continues to hamper their ability to do so. This law requires that U.S. airlines be controlled and owned by U.S. citizens and prohibits foreign investors from owning 25 percent or more of the voting stock of any such airline. Tracing its roots back to when Calvin Coolidge was president, and strengthened during the presidency of Franklin Delano Roosevelt, the law, which was originally designed to protect an infant industry, has now hamstrung an ailing industry from seeking vital sources of capital. A rethinking of this restriction seems particularly ripe for discussion.

 

81_311

Balancing the Scales: Expanding the Family Movie Act to Protect Consumers After Clean Flicks of Colorado, LLC v. Soderbergh – Note by Joel M. Purles

From Volume 81, Number 2 (January 2008)
DOWNLOAD PDF

In July 2006 the District Court of Colorado released its Memorandum Opinion and Order for the case Clean Flicks of Colorado, LLC v. Soderbergh. The decision stands as the culmination of events that included accusations, finger-pointing, judicial appeals, massive impleadings, academic debates, congressional hearings, and even statutory intervention. The specific issue that the court faced, which is still under discussion today, was whether companies that edit consumers’ personal copies of motion pictures for moral content infringed the movie studios’ copyrights. Although much of mainstream America was likely unaware of either the case’s existence or outcome, the court’s decision has the potential to affect many Americans because it directly impacts the broader question at issue: whether a proper balancing of copyright interests should recognize and protect consumers’ right to control the way that they experience movies in the privacy of their own homes.

 

81_351

Looking Behind the Curtain: Applying Title III of the Americans with Disabilities Act to Businesses Behind Commercial Websites – Note by Kenneth Kronstadt

From Volume 81, Number 1 (November 2007)
DOWNLOAD PDF

In 1990, Congress enacted the Americans with Disabilities Act (the “ADA” or the “Act”) with the goal of eliminating discrimination against disabled Americans by providing clear, strong, consistent, and enforceable standards to combat the type of discrimination people with disabilities face in their everyday lives. The ADA is the force behind the wheelchair ramps so common in American buildings, the wide doors and large bathroom stalls to accommodate the disabled, the talking ATMs to assist individuals who are blind, and the acceptance of service animals in restaurants and shops. Yet the ADA has provided little help to disabled Internet users.

 

81_111

No More Playing Favorites: Reconsidering the Conclusive Congressional Presumption that Intercollegiate Athletics are Substantially Related to Educational Purposes – Note by Gabriel Morgan

From Volume 81, Number 1 (November 2007)
DOWNLOAD PDF

Athletic competition strengthens not only athletes’ bodies, but also their minds by training them in the values of self-discipline, self-sacrifice, hard work, and the pursuit of excellence. In addition, athletes learn important lessons on social values, such as leadership, cooperation, camaraderie, and collective responsibility through participation in competitive events. The ability of athletic competitions to instill such desirable values in their participants potentially enables intercollegiate athletics to further traditional educational goals by supplementing and enriching the academic experience of student-athletes with valuable life lessons.

 

81_149

Inkblots: How the Ninth Amendment and the Privileges or Immunities Clause Protect Unenumerated Constitutional Rights – Note by Kyle Alexander Casazza

From Volume 80, Number 6 (September 2007)
DOWNLOAD PDF

One commentator has rightly noted that “principles of natural justice are summoned to highlight moral requirements of the legal and political order, to defend individual rights against the utilitarian interests of a political majority, or to guide the adjudication of hard cases which fall into textual gaps or open ended clauses of the Constitution.” Despite the presence of these open-ended clauses, our Framers “understood and observed a distinction between ‘natural’ rights and…‘positive’ rights.” The former are comprised of “Lockean notions concerning the ‘unalienable’ rights of the people,” while the latter look to “common, constitutional, and statutory law.”

The Framers’ enumeration of some rights did not distinguish between the two – the Bill of Rights enumerated traditionally natural and positive rights because both are “essential to secure the liberty of the people.” The Ninth Amendment and the Privileges or Immunities Clause can be read to protect distinct classes of unenumerated rights across these two categories. Under such an approach, the Ninth protects unenumerated rights inherent in all persons, while the Privileges or Immunities Clause protects a unique class of unenumerated rights born in both civil government and the Constitution itself.

General attitudes toward the Ninth Amendment are perhaps best exemplified by the statement of then-Judge Robert Bork during his 1987 confirmation hearings, in which he stated that the Ninth Amendment should be viewed as “‘an amendment that says “Congress shall make no” and then there is an inkblot, and you can’t read the rest of it, and that is the only copy you have.’” Interestingly enough, Robert Bork has referred to both the Ninth Amendment and the Privileges or Immunities Clause as inkblots.

 

80_1383

Policing State Testing Under No Child Left Behind: Encouraging Students with Disabilities to Blow the Whistle on Unscrupulous Educators – Note by Richard C. Herrera

From Volume 80, Number 6 (September 2007)
DOWNLOAD PDF

With these words, U.S. Secretary of Education Margaret Spellings expressed her belief that the progress of state public educational systems can only be trusted when supported by objective data. While the age-old adage, “numbers do not lie,” may hold true in other contexts, the results of recent investigations along with teacher and student allegations suggest that in the educational context, sometimes they do. In an effort to feign educational progress on state assessment tests in reading and mathematics, educators at state and local levels are targeting low performing students by excluding these students from state testing, providing them with the correct answers to test questions during their exams, and doctoring their answer sheets before submitting them for scoring.

What is driving educators to cheat? The answer: federal legislation known by four words that are striking fear into educators throughout the nation – “No Child Left Behind.” Few can argue with the Act’s admirable goals: (1) ensuring that all children, including those historically left behind, are held to the same academic achievement standards; (2) narrowing the achievement gap between our nation’s highest and lowest performing students; and (3) ensuring that all students reach grade-level proficiency by 2014. However, under No Child Left Behind (“NCLB”), states, school districts, and public schools are exposed to an escalating series of harsh sanctions when student test scores on state assessment tests in reading and mathematics do not reflect “adequate yearly progress.” Since NCLB’s inception, many of our nation’s school districts and public elementary and secondary schools have failed to make adequate yearly progress. These failures have coincided with reports indicating that teachers and administrators, whose jobs and professional reputations are at risk, are doing whatever it takes to portray progress.

 

80_1433