Court Changes Research Articles

Answers to Written Questions for the Record of David O. Taylor before the United States Senate Judiciary Committee, Subcommittee on Intellectual Property: The State of Patent Eligibility in America

Here I provide answers to written questions received from Senators Tillis, Blumenthal, and Hirono as part of their consideration of proposed amendments to the patent statute to address current problems with patent eligibility law. I explain why patent eligibility law is in a state of crisis, and in particular how my research has demonstrated risks of under investment in research and development as a result of the Supreme Court's changes to patent eligibility law. I analyze the impact of returning patent eligibility law to its historical scope, focusing on the impact on industry, consumers, and prices. I explain why congressional intervention is necessary, but why the proposed field of technology test is suboptimal. I highlight the role of Congress in addressing moral and ethical concerns with patenting some technologies. I discuss how the proposed change to the disclosure requirement is unnecessary, over-broad, and problematic. I also discuss the lack of a need to codify the double-patenting doctrine. Finally, I analyze potential due process and takings arguments related to the proposed amendments.

Supreme Court's Changing Makeup Worries Disability Advocates

Supreme Court's Changing Makeup Worries Disability Advocates

Clearing the legal barriers – Danish court upholds ‘deep linking’ in Home v. Ofir

The issue of deep linking in Denmark has hopefully been put to rest in the recent landmark decision by the Danish Maritime and Commercial Court which has ruled that deep linking, systematic crawling and indexing by portal site Ofir of real estate agent Home's database are legal and do not violate either Danish Copyright law or the Marketing Act. The court also said that the use of search engines which make available deep links, allows the user to access the required information in an effective manner. Furthermore, search engines are desirable for the functioning of the Internet of today. The decision, which went against the prior ruling in the Newsbooster case, signalled the court's changing attitude towards deep linking and will have serious profound implications for news links.

The History of the Countermajoritarian Difficulty, Part Four: Law?s Politics

This paper takes a somewhat novel approach to problems regarding the separation of law and politics raised by Roosevelt's Court-packing plan. Most scholarship about the New Deal focuses on the Court's response to the threat of political retribution that the plan represented. This article argues that if one is concerned about questions regarding the separation of law and politics raised by the Court's doctrinal change following the defeat of the Court-packing plan, it is more profitable to examine public reaction to the Court, rather than the more common scholarly approach of examining the Court's reaction to political pressure. Thus, this paper is a study of popular understandings about democracy, judicial supremacy, constitutional interpretation and the role of judicial review in the 1930's. The thesis of the article is that these deeper strains in public thought at the time of the New Deal can explain why the Court-packing plan was a logical proposal, as well as why it was defeated. Public understandings about the proper role of judicial review also mirror the doctrinal direction taken by the Court beginning in 1937, suggesting at the least that there is some empirical legitimacy to the Court's change in direction.

Gender Equality and the Supreme Court: Taking Another Look

A review of 107 gender equality claims reaching the Supreme Court since Reed v. Reed (1971) indicates that the Court's treatment of abortion rights claims differed greatly from non-abortion claims. The Court's changing makeup was strongly related to its support for abortion rights, but not to its support for non-abortion gender equality claims. Litigants and legal facts strongly affected the Court’s support for non-abortion gender equality claims, but not abortion claims. Public opinion indicators were either unrelated (to non-abortion gender equality claims) or showed an unexpected, negative linkage (to abortion rights claims).

Shifting Sands and Shifting Doctrines: The Supreme Court's Changing Takings Doctrine and South Carolina's Coastal Zone Statute

Shifting Sands and Shifting Doctrines: The Supreme Court's Changing Takings Doctrine and South Carolina's Coastal Zone Statute

The good faith exception to the exclusionary rule: Some implications for the police

Since 1961, when the United States Supreme Court ruled that evidence obtained by unreasonable search and seizure would not be admissible as evidence in state courts, police officers have had to work within the constraints imposed by the so-called “exclusionary rule.” This article traces the history of the exclusionary rule, reviews the Supreme Court's changing rationale for its existence, and examines a variety of proposed alternatives. Law enforcement officials need to be aware of the alternatives, for virtually all of them would remove the burden of the results from the prosecutors and the courts and place them on the officer and/or the agency. This article concludes that the implications of a good faith exception have ramifications for both the officer and the agency, ramifications that would fall most heavily, however, on agency policies and resources.