Petition For Writ Of Certiorari Research Articles

Amicus Brief in Support of Petition for Writ of Certiorari in Columbia House of Brokers v. Designworks Homes (2022)

Amicus Brief in Support of Petition for Writ of Certiorari in Columbia House of Brokers v. Designworks Homes (2022)

Brief of Amici Curiae 56 Professors of Law and Economics in Support of Petition for Writ of Certiorari in TC Heartland LLC v. Kraft Foods Group Brands LLC, No. 16-341

28 U.S.C. § 1400(b) provides that a defendant in a patent case may be sued where the defendant is incorporated or has a regular and established place of business and has infringed the patent. This Court made clear in Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 223 (1957), that those were the only permissible venues for a patent case. But the Federal Circuit has rejected Fourco and the plain meaning of § 1400(b), instead permitting a patent plaintiff to file suit against a defendant anywhere there is personal jurisdiction over that defendant. The result has been rampant forum shopping, particularly by patent trolls. 44% of 2015 patent lawsuits were filed in a single district: the Eastern District of Texas, a forum with plaintiff-friendly rules and practices, and where few of the defendants are incorporated or have established places of business. And an estimated 86% of 2015 patent cases were filed somewhere other than the jurisdictions specified in the statute. Colleen V. Chien & Michael Risch, Recalibrating Patent Venue, Santa Clara Univ. Legal Studies Research Paper No. 10-1 (Sept. 1, 2016), Table 3. This Court should grant certiorari to review the meaning of 28 U.S.C. § 1400(b) because the Federal Circuit’s dubious interpretation of the statute plays an outsized and detrimental role, both legally and economically, in the patent system.

Supreme Court Brief of Amici Curiae on Petition for Writ of Certiorari in Support of Petitioner, Ortiz v. U.S. ex rel. Evans Army Community Hospital, No. 15-488 (Nov. 17, 2015)

This is an amicus brief urging the Supreme Court to hear the case of U.S. Air Force Major Heather Ortiz and her baby, who were denied legal remedies for obstetric malpractice by military doctors that left the baby with severe brain damage. The case is No. 15-488, Ortiz v. U.S. ex rel. Evans Army Community Hospital. Professors Fox and Stein urge the Court to overturn the Tenth Circuit’s holding that the federal government’s immunity against liability for intramilitary torts extends to wrongful injuries like those sustained by Major Ortiz’s baby. They argue that this holding misinterprets the immunity, misapplies the Federal Tort Claims Act (FTCA), and constitutes no less than unconstitutional sex discrimination. Fox and Stein explain:"When a civilian spouse of a serviceman receives negligent prenatal care from military doctors and delivers an injured baby as a result of that malpractice, there is no question that Feres immunity does not apply and that the baby can sue the United States under the FTCA. When military medical malpractice injures the baby of a servicewoman, this baby should be equally able to obtain redress under the FTCA. A system that would single out the civilian children of servicewomen for adverse treatment discriminates against women who serve in the armed forces.... To interpret the FTCA as the Tenth Circuit did permits discrimination between these two classes of similarly situated victims of military malpractice and violates fundamental principles of equal protection."

Petition for Writ of Certiorari, Kosilek v. O'Brien

Jennifer Levi, on behalf of Gay & Lesbian Advocates & Defenders, was one of the Authors of the Petition for Writ of Certiorari, filed in the Supreme Court of the United States on behalf of the Petitioner, Michelle Kosilek, in Kosilek v. O'Brien. Questions presented to the Court by the Petitioner were 1.) whether appellate courts must parse “ques­tions that present elements both factual and legal” into their factual and legal components, so that all factual findings can be reviewed for clear error, or whether, as the First Circuit ruled, they may review such questions as a whole along a “continuum” of deference, where the degree of deference given to the district court is of “variable exactitude,” and 2.) whether the Eighth Amendment prohibits prison officials from denying necessary medical treatment to a prisoner for non-medical reasons, such as security concerns.

In the Shadow of Gratz and Grutter: Grieving Diversity at the University of Michigan

At the same time the affirmative action cases of Gratz and Grutter were winding their way to the Supreme Court, an internal grievance alleging discrimination and the failure to consider the value of diversity in the tenure process was being considered inside the University of Michigan Law School. This article explores the interconnected histories of Gratz, Grutter and the grievance, examining the internal difficulties and contradictions universities face in living up to their public commitments to fight discrimination and cultivate meaningful forms of diversity. The year following the Supreme Court decision, the University celebrated its accomplishments in 'Defending Diversity: Affirmative Action at the University of Michigan', co-authored by Patricia Gurin, the University’s lead expert witness on the effects of diversity in higher education and Jeffrey S. Lehman, Dean of the Law School through most of the litigation. In the internal grievance, Jeff Lehman advocated an interpretation of the Law School Grievance Policy that prohibited the grievance of any matter relating to tenure, including the crassest forms of discrimination or the failure of the faculty to consider the virtues of diversity. The Grievance Review Board, chaired by Patricia Gurin, adopted Dean Lehman’s position and categorically barred all grievances. Ironically, the hearing took place the very same day the University filed its response to plaintiff’s petition for writ of certiorari, where the University actively maintained that diversity in higher education constituted a compelling state interest. Meaningful progress on civil rights requires deep institutional change. It is often difficult to get even good people to do the right thing. The interconnected stories of Gratz, Grutter and the grievance – the same institution, with the same actors, at the same time the cases were being litigated – illustrate broader lessons about the challenges often preventing universities from making progressive change.

Clarifying State Action Immunity under the Antitrust Laws: FTC v. Phoebe Putney Health System, Inc.

The tension between federalism and national competition policy has come to a head. The state action doctrine finds its basis in principles of federalism, permitting states to replace free competition with alternative regulatory regimes they believe better serve the public interest. Public restraints have a unique ability to undermine the regime of free competition that provides the basis of U.S.- and state-commerce policies. Nevertheless, preservation of federalism remains an important rationale for protecting such restraints. The doctrine has elusive contours, however, which have given rise to circuit splits and overbroad application that threatens to subvert the state action doctrine’s dual goals of federalism and competition. The recent Eleventh Circuit decision in FTC v. Phoebe Putney Health System, Inc. epitomizes the concerns associated with misapplication of state action immunity. The U.S. Supreme Court recently granted the FTC’s petition for certiorari and now has the opportunity to more clearly define the contours of the doctrine. In Phoebe Putney, the FTC has challenged a merger it claims is the product of a sham transaction, an allegation certain to test the boundaries of the state action doctrine and implicate the interpretation of a two-pronged test designed to determine whether consumer welfare-reducing conduct taken pursuant to purported state authorization is immune from antitrust challenge. The FTC’s petition for writ of certiorari raises two issues for review. First, it presents the question concerning the appropriate interpretation of foreseeability of anticompetitive conduct. Second, the FTC presents the question whether a passive supervisory role on the state’s part can be construed as state action or whether its approval of the merger was a sham. In this paper, I seek to explicate the areas in which the state action doctrine needs clarification and to predict how the Court will decide the case in light of precedent and the principles underlying the doctrine.

Brief of Amicus Curiae Knowledge Ecology International, in Support of Petitioners' Petition for Writ of Certiorari (Ninestar Technology Co., Ltd, et. al. v. Int'l. Trade Comm'n, et. al.)

The patent exhaustion doctrine is a common law tradition that has existed in the United States for over 150 years. This doctrine, analogous to the statutorily codified “first sale” doctrine of Copyright Law, limits the patent owner’s control to the first sale of the technology. Once the first authorized sale occurs, the patent owner’s right to the invention are considered exhausted. This Court’s precedent has long found that the first authorized sale, regardless of the place of manufacture or location of sale, exhausts the patent owner’s rights to control future downstream sales. The Federal Circuit’s recent decisions run contrary to this Court’s longstanding history. As a general rule, KEI favors international patent exhaustion, a rule that stood in the United States until the Federal Circuit’s decision in 2001. Where desirable public policy favors limitations on international exhaustion, Congress is capable of providing such limitations through other laws or regulatory processes.

Petition for Writ of Certiorari: Re; Constitutional Challenge to the 'Taylor Law' Cert. Denied.

Petition for Writ of Certiorari: Re; Constitutional challenge to the Taylor Law Cert. Denied.

Brief of Amicus Curiae Wesley MacNeil Oliver in Support of the Petition for Writ of Certiorari in John Ashcroft v. Abdullah Al-Kidd

The United States Court of Appeals for the Ninth Circuit recently held that a lawsuit could proceed against John Ashcroft in his individual capacity for the way he detained material witnesses after the Terror of September 11, 2001. Ashcroft allegedly used those he believed to be terrorist suspects as material witnesses when he lacked adequate suspicion to bring formal charges. All of these “witnesses” otherwise qualified for detention under the federal material witness detention statute. The Ninth Circuit concluded that this “pretextual” use of the material witness detention statute clearly violated the Fourth Amendment as it circumvented the probable cause threshold required to hold suspects. The court reasoned that no court had previous held this pretextual use of the statute to be unlawful because Ashcroft’s use of the statute was “novel” and “unprecedented.”This historical claim is false. From 1850 to 1930, material witness detentions were used quite frequently – most often to hold those whom law enforcement officials suspected of criminal activity. In fact, reformers during the era objected to the use of the detentions to hold innocent persons, but seemed to have little or no problem with the use of the power to temporarily hold those suspected of criminal activity. In New York, a law in 1883 forbid the detention of any “witness” whom law enforcement officials did not also suspect of criminal activity. In short, the public was tolerant of the way Ashcroft is alleged to have used the material witness detention statute in this case. The public was outraged when it was used in the only way the Ninth Circuit claims it can be used consistent with the Constitution. This brief in support of John Ashcroft’s petition for a writ of certiorari was filed on July 23, 2010.

Licensing Facially Religious Government Speech: Summum’s Impact on the Free Speech and Establishment Clauses

It is the rare case that is decided solely on Free Speech grounds yet directly impacts the Supreme Court’s Establishment Clause jurisprudence. Pleasant Grove City v. Summum is such a case. Although all nine Justices concurred in the judgment — that a privately donated monument in a public park is a form of “government speech” that is not subject to scrutiny under the Free Speech Clause — the case spawned five different opinions as the Justices attempted to explain the proper scope of the Court’s decision on the Free Speech and Establishment Clauses. This paper analyzes the interaction between Summum’s “recently minted” government speech doctrine and the Establishment Clause. In particular, with respect to the Free Speech Clause, I argue that Summum resolves an ongoing Circuit split regarding a common medium of expression — specialty license plates. Recently, six Circuits have reached at least three different conclusions with respect to the status of specialty license plates, and two other Circuits have addressed the First Amendment issue in passing. In addition, a petition for writ of certiorari has been submitted seeking Supreme Court review of a 2008 Seventh Circuit case dealing with this very issue. I maintain that Summum’s new test for government speech is inconsistent with the test that the majority of Circuits has applied to specialty plates. Whereas the majority considers whether a reasonable observer would identify the government as the speaker, Summum focuses on the level of control that the government has over the specialty plate program. Under Summum’s “control” test, many (and possibly all) specialty plate programs — as well as many other forms of speech that are subject to government control — are government speech and, therefore, are exempt from First Amendment scrutiny. Moreover, I contend that Summum’s control test necessarily alters the Court’s analysis of facially religious government speech under the Establishment Clause. Although the Establishment Clause still applies to government speech, the endorsement test does not. To understand why, the paper explores the effect of the government speech doctrine on an issue of first impression — a specialty license plate containing the phrase “I Believe” and a picture of a cross superimposed on a stained glass window. Although the lower court concluded that the plate violated the endorsement test, Summum changes the analysis. Under Summum, the government has the right to say what it wants even though the government’s intended message may differ significantly from the message that observers ascribe to the government. As a result, when dealing with government speech, Justice O’Connor’s “reasonable observer” test focuses on the wrong party — the reasonable observer instead of the government speaker. That is, when determining whether facially religious government speech violates the Establishment Clause post-Summum, the Court must determine whether the government actually has an improper religious motive, not whether a reasonable person interprets the message as impermissibly religious. I conclude that a majority of the current Court is apt to apply the control test and hold that the “I Believe” specialty plate is constitutional.

U.S. Supreme Court Review of Petition for Writ of Certiorari in First National City Bank v. Banco Nacional De Cuba

U.S. Supreme Court Review of Petition for Writ of Certiorari in First National City Bank v. Banco Nacional De Cuba

Third Parties in Litigation: A Systemic View of the Judicial Function

Third Parties in Litigation: A Systemic View of the Judicial Function