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Number 1 January 2013
Number 2 April 2013
Number 3 May 2013
Number 4 July 2013
Number 5 September 2013
Number 6 December 2013

Chad Flanders
Further Reflections on the Pardoning Power: Reply to Hoskins and Drinan
Response to Zachary Hoskins, Problematic Pardoning Patterns and Cara H. Drinan, Where Pardons are Concerned, Second Best Might Not Be So Bad After All: A Response to Chad Flanders

First, let me express my gratitude to the incisive comments of Zach Hoskins and Cara Drinan. I have long been a fan of Hoskins’s work, and his forthcoming book on the collateral consequences of punishment promises to be pathbreaking. The influence of Drinan’s scholarship on the pardoning power is evident in my original essay and her newer work on the Graham case has again inspired me in new directions in my research. Their comments on my essay are important in their own right, and importantly for me, they have helped to clarify my own thinking. In my brief reply, I begin by restating the main points of the article. I then try to expand on them, building off points made in both responses.
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Camilla A. Hrdy & Ben Picozzi
The Trespass Fallacy’s Limits-A Response to Adam Mossoff
Response to Adam Mossoff, The Trespass Fallacy in Patent Law 

In his engaging new essay, The Trespass Fallacy in Patent Law, Professor Adam Mossoff challenges the reasoning of prominent commentators who criticize the patent system on the basis that patent claims are not as clear and determinate as real property boundaries. Professor Mossoff’s essay reminds us that whether uncertainty in patent law is grounds for concern, let alone systematic reform, depends on our baseline for comparison, and astutely identifies an important weakness in the writings of critics who rely on inaccurate conceptual analogies between patents and land, and an unproven assumption that real property disputes over estate boundaries are rare and efficiently resolved. However, we worry that Professor Mossoff’s conclusion that patent reform should be postponed until all empirical uncertainty is resolved overestimates the significance of the trespass fallacy critique.
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Ryan T. Holte
The Trespass Fallacy in the “Software Patent” Debate
Response to Adam Mossoff, The Trespass Fallacy in Patent Law

In The Trespass Fallacy in Patent Law, Professor Adam Mossoff details how patent law jurisprudence and scholarship is dominated by an indeterminacy critique or “trespass fallacy” in two respects. First, describing conceptual error, Professor Mossoff details how judges and academics have improperly conflated the entire legal rights of patent title to the single legal doctrine of property law trespass. Second, focusing on empirical error, Professor Mossoff describes how the indeterminacy critiques of patents utilize only an idealized theory of how trespass is thought to function, without formal empirical data regarding how trespass or other real property boundaries actually function within litigation. Professor Mossoff’s essay makes an important contribution to patent law scholarship by breaking through this improper rhetoric and exposing the misleading and unverified indeterminacy critiques of patents for what they are—trespass fallacies.
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Shine Tu
The Indeterminacy Critique and the Trespass Fallacy
Response to Adam MossoffThe Trespass Fallacy in Patent Law

One of the key functions of patents is to put the public on notice as to what they are allowed to use, sell, or manufacture without a patentholder’s consent. Determining patent scope, however, is one of the most contentious and difficult tasks in modern patent law. In fact, many argue that the patent system is broken because patents are too vague and indeterminate to function as property rights. Many commentators note that patents lack the clear and stable boundaries provided by property law fences. In The Trespass Fallacy in Patent Law, Professor Adam Mossoff takes on this idea and shows why property law cannot currently be used as an analogy for patent law principles.
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Saurabh Vishnubhakat
Cognitive Economy and the Trespass Fallacy: A Response to Professor Mossoff
Response to Adam Mossoff, The Trespass Fallacy in Patent Law

In his recent essay The Trespass Fallacy in Patent Law, Professor Adam Mossoff argues cogently that the metaphor of trespass has become a misused basis for patent indeterminacy critiques that it cannot conceptually or empirically support. While sharing his caution that metaphors are not to be trifled with, this reply suggests that trespass has both a smaller role and a larger potential benefit in the debate on patent indeterminacy, and advances an opposite solution.
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Wulf A. Kaal
Dampening Financial Regulatory Cycles Via Dynamic Regulation—A Comment on Professor McDonnell
Response to Brett McDonnell, Dampening Financial Regulatory Cycles

A key assumption underlying most of the proposals Professor McDonnell analyzes is that rules could and should be optimally tailored to address a perceived regulatory problem. In fact, the assumption that stable and optimal rules are an adequate remedy in many ways supports and perpetuates financial regulatory cycles. A key role for scholarship in this context could be the evaluation of supplemental governance mechanisms that help the main regulatory framework adapt to constantly changing market environments, financial innovation, and the regulatory environment.
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Cara H. Drinan
Where Pardons Are Concerned, Second Best Might Not Be So Bad After All: A Response to Chad Flanders
Response to Chad Flanders, Pardons and the Theory of the “Second Best”

In his article, Pardons and the Theory of the “Second Best,” Professor Flanders asserts that pardons are “second best” in two ways. First, they tend to be granted when the criminal justice system has failed in some way. Second, pardons “en masse” can reflect racial bias, favoritism, and arbitrariness, all of which undermine the integrity of our criminal justice system. The heart of his article theorizes how pardons should be granted in order to avoid such undermining outcomes. Specifically, Flanders contends that pardons cannot be examined exclusively at the individual level; rather, executives should consider the patterns that emerge when looking at pardons as a whole.
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Christopher B. Seaman
American Innovation and the Limits of Patent Law: A Response to William Hubbard, Competitive Patent Law
Response to William Hubbard, Competitive Patent Law

Although it has recently come under fire from both theoretical and empirical perspectives, the promotion of innovation remains the predominant justification for U.S. patent law. In Competitive Patent Law, Professor William Hubbard makes a valuable contribution regarding an underexplored aspect of patent law’s ability to encourage innovation—namely, “whether U.S. patent law can be tailored to provide U.S. innovators with enhanced incentives to invent” compared to foreign rivals, and thus by extension make American firms more competitive in the global marketplace.
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Michael C. Macchiarola
Swimming Upstream
Response to Brett McDonnell, Dampening Financial Regulatory Cycles

While more a diagnosis than a prescription, Professor Brett McDonnell’s Dampening Financial Regulatory Cycles makes a noteworthy contribution in defense of the aspiration that “[f]inancial regulation should be countercyclical.” The Article offers a refined examination of the procyclical nature of our financial regulation and introduces three competing explanatory models. More frustrating, however, is the Article’s consideration of the administrative mechanisms available to dampen financial regulatory cycles. While able to identify several “intelligent roadblocks” available to regulators looking to “block bad new rules but not beneficial ones,” the Article offers little hope that any such mechanism will be applied skillfully to reverse the procyclical regulatory bias and its attendant consequences.
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Zachary Hoskins
Problematic Pardoning Patterns 
Response to Chad Flanders, Pardons and the Theory of the “Second Best

In his engaging article, Chad Flanders examines the justification of executive pardons. The article’s key contribution is its contention that we cannot determine whether pardons are justified solely by considering them individually.  It is not enough, that is, to ask in each case whether there exist what Kathleen Moore calls “good and sufficient reasons” for the pardon (basically, whether the pardon will remedy a miscarriage of justice of one form or another). To assess whether pardons are justified, Flanders argues that we must also examine them holistically. Pardons that are justifiable individually (because there are, we may agree, good and sufficient reasons for them) may nevertheless be unjustified if they are part of a pattern of pardoning that is racist, favoritist, or otherwise problematic.
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Susan Bisom-Rapp
Context Matters: A Reply to Professor Eisenberg
Response to Deborah Eisenberg, Regulation by Amicus

Professor Deborah Eisenberg has produced a fine and important work, Regulation by Amicus, which assesses U.S. Department of Labor (DOL) efforts to influence statutory interpretation and effectuate public policy through the use of friend of the court briefs in private litigation. Most notably, she focuses on the unconventional deployment of this strategy by the two most recent presidential administrations in the service of their interpretations of the Fair Labor Standards Act (FLSA), the federal statute governing wage and hour law. Through the often aggressive submission of amicus curiae briefs, the administration of George W. Bush aimed to use the Supreme Court’s agency deference doctrine to eviscerate worker protections,while Barack Obama’s administration has employed the same tool to revive and expand interpretations protective of employees.
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Margit Livingston
Piggybacking on Glory
Response to Marc Edelman, Closing the “Free Speech” Loophole

In his recent Article on the right of publicity for college athletes, Professor Marc Edelman proves prescient in his arguments that a video game manufacturer using likenesses of college athletes violated their publicity rights and could not reasonably shelter itself behind the First Amendment. Since the publication of Edelman’s Article, two Federal Courts of Appeal have decided cases in favor of the athletes, recognizing the validity of their rights of publicity while holding that the game manufacturer did not sufficiently transform the athletes’ likenesses so as to qualify for a free speech defense. As a result, the manufacturer announced that it will not publish a new college football game in 2014.
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Corey Brettschneider
Response to Steve Calabresi and Abe Salander
Response to Steve Calabresi and Abe Salander, Religion and the Equal Protection Clause: Why the Constitution Requires School Vouchers

I am pleased to respond to the astute and provocative essay by Steven Calabresi and Abe Salander. We agree that some violations of religious freedom are best understood as violations of equality. We also share the view that the Fourteenth Amendment should protect citizens against religious discrimination. However, I argue that it is important to narrow the kinds of claims that can be brought under an equal protection framework. There is a free speech right of religions to express discriminatory views  free from government bans or coercion. But discriminatory practices, even if religious in nature, should not be entitled to exemption from general laws as a matter of equal protection.
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James J. Park
Securities Enforcement in Extraordinary Times
Response to Amanda M. Rose and Larry J. LeBlanc, Policing Public Companies

In Policing Public Companies, Professors Amanda M. Rose and Larry J. LeBlanc compile and analyze an impressive dataset of securities litigation against public companies from 2004 through 2006, a period soon after the collapse of the internet bubble, the Enron and WorldCom accounting frauds, and the rise of New York Attorney General Eliot Spitzer. Their results provide evidence that public companies are at significant risk of litigation brought pursuant to the securities laws. However, because the period of the study reflects the aftermath of unprecedented securities enforcement activity, its results are likely not representative of enforcement activity in normal times.
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