Fla. L. Rev. F., Volume 67

Number 1 January 2015
Number 2 March 2015
Number 3 May 2015
Number 4 July 2015
Number 5 September 2015
Number 6 November 2015

Dmitry Karshtedt
Divided Infringement, Economics, and the Common Law
Response to W. Keith Robinson, Economic Theory, Divided Infringement, and Enforcing Interactive Patents

This essay responds to and builds on Economic Theory, Divided Infringement, and Enforcing Interactive Patents, an article published by Professor Keith Robinson. In his article, Professor Robinson analyzed liability under various tests courts have developed to address the so-called “divided infringement” problem, which arises when multiple entities perform the steps of a method patent claim, under the three leading economic theories of patent law  — reward theory, prospect theory, and rent-dissipation theory. In particular, Professor Robinson concluded that imposition of liability for divided infringement of method claims under joint enterprise principles is consistent with all three of these theories.
This essay surveys recent developments in the law of divided infringement and shows how they have complicated the liability landscape that Professor Robinson described in his article. Furthermore, the essay applies Professor Robinson’s approach to imposition of liability for divided infringement under the principles of causal responsibility, which I described in an earlier article, Causal Responsibility, and Patent Infringement. The essay concludes that liability based on causal responsibility — which, like joint enterprise, has deep roots in the common law — is also consistent with reward theory, prospect theory, and rent-dissipation theory. In addition, the essay considers broader implications of relying on common-law attribution principles in patent cases.
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Minch Minchin
The Content-Neutrality Doctrine Still Works
Response to R. George Wright, Content-Neutral and Content-Based Regulations of Speech: A Distinction That Is No Longer Worth the Fuss

In a recent piece in the Florida Law Review, however, Indiana University of Law Professor R. George Wright calls for a more drastic approach: that courts should completely abandon content-neutrality. In responding to Professor Wright’s quintet of contentions, this response proceeds as follows: Part I provides context by briefly describing the content-neutrality doctrine and the judicial standards of intermediate and strict scrutiny. Part II analyzes each of Professor Wright’s arguments and suggests that, although they individually are technically accurate, taken together, they lack sufficient justification to jettison content-neutrality. Part III concludes by conceding that although the doctrine is certainly flawed, the most prudent course is to carefully mend it, not cast it into the constitutional dustbin.
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Jake Linford
Private Ordering Under Threat of Regulation
Response to Annemarie Bridy, Internet Payment Blockades

In Internet Payment Blockades, Professor Annemarie Bridy describes how administrators in charge of IP policy have successfully pressured payment intermediaries to “voluntarily” shut off payments to websites that are loci of copyright or other intellectual property infringement. As Professor Bridy recounts, the White House Office of the Intellectual Property Enforcement Coordinator (IPEC) persuaded payment processors (including American Express, Discover, MasterCard, PayPal, and Visa) to enter an ostensibly voluntary best practices agreement with corporate intellectual property owners. Professor Bridy argues that adoption of the best practices agreement was effectively coerced by an unscrupulous threat to regulate if payment processors didn’t sign on. Professor Bridy’s analysis is mostly persuasive. In particular, her advice to beware administrators threatening regulation is well-taken. But there is some room for optimism, even when facing cajoled payment processors.
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Karen E. Woody
Voluntary Disclosure Fostering Overenforcement and Overcriminalization of the FCPA
Response to Peter R. Reilly, Incentivizing Corporate America to Eradicate Transnational Bribery Worldwide: Federal Transparency and Voluntary Disclosure Under the Foreign Corrupt Practices Act

Professor Peter Reilly’s article challenges the notion that voluntary disclosure of potential Foreign Corrupt Practices Act (FCPA) violations to the government is always the best course of action for a company. In a world where whistleblowers can receive a bounty for information provided to the Securities and Exchange Commission (SEC), self-reporting is a critical, high-pressure decision that each company must undertake when faced with potential FCPA liability. This Article takes a broader look at the FCPA landscape, focusing on SEC enforcement, in parallel to the Department of Justice (DOJ) focus that Professor Reilly undertakes in his Article. Specifically, this Article buttresses Professor Reilly’s argument by pointing out that the SEC has become an increasingly prosecutorial agency that uses disgorgement as a punitive measure, and enjoys the ability to be both prosecutor and judge in a settlement-driven landscape. In practicality, this means the scales are tipped in the government’s favor, making the decision whether to voluntarily disclose even murkier.
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Stacey Steinberg
Where Did All the Social Workers Go? The Need to Prepare Families for Adoption, Assist Post-Adoptive Families in Crisis, and End Re-Homing
Response to S. Megan Testerman, A World Wide Web of Unwanted Children: The Practice, the Problem, and the Solution to Private Re-Homing

S. Megan Testerman’s Note, A World Wide Web of Unwanted Children: The Practice, the Problem, and the Solution to Private Re-Homing, offers a detailed overview of private re-homing, provides an analysis into the root causes, and offers child-centered solutions to the practice. Private re-homing is the process of engaging in the transfer of children from one adoptive home to a non-licensed caregiver for the purposes of permanently altering the child’s family make-up. In many instances, this treats children as commodities. Testerman explains that parents eager to relinquish custody of their children often advertise their children online, offering them to individuals who would likely not be able to adopt through legal means. Many of these children face repeated physical, sexual, and emotional trauma. While some states have taken steps to curb this practice, private re-homing remains largely unregulated, and endangers children who fail to thrive in adoptive placements. Testerman proposes legal solutions and calls for better pre- and post-adoption state support. My response expounds on the key issues raised in Testerman’s Note and offers additional insights into pre-adoption practices and post-adoption concerns.
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Justin Sevier
On Hearsay Dragon-Slaying
Response to Liesa L. Richter, Posnerian Hearsay: Slaying the Discretionary Dragon

Professor Liesa L. Richter evokes dragon imagery in her important debate with Judge Richard Posner over the future of Article VIII of the Federal Rules of Evidence, which governs the use of hearsay evidence at trial. In her article, titled Posnerian Hearsay: Slaying the Discretion Dragon, Professor Richter critiques Judge Posner’s latest proposal for analyzing hearsay, which appears in his concurrence in the Seventh Circuit case, United States v. Boyce. As I discuss in more detail below, there is actually much agreement between Professor Richter and Judge Posner with respect to the policy and doctrinal intricacies surrounding the rule barring hearsay evidence. However, they disagree strongly regarding the role of judicial discretion in determining whether certain types of hearsay are “reliable enough” to overcome Article VIII’s general bar on the use of second-hand information as evidence at trial. This Article briefly (1) analyzes Judge Posner’s proposed approach to hearsay, (2) examines Professor Richter’s critique, and (3) discusses other paradigms—supported by experimental psychology research—by which to evaluate out-of-court statements used as evidence at trial.
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David DePianto
The Costs and Benefits of a Categorical Approach to Hearsay
Response to Liesa L. Richter, Posnerian Hearsay: Slaying the Discretionary Dragon

Recent remarks by Judge Richard Posner of the Seventh Circuit Court of Appeals have breathed new life into the old debate about hearsay. In a concurrence in United States v. Boyce Judge Posner suggests that judges should examine the reliability of hearsay evidence directly. Seeking to engage Judge Posner on terrain that he would appreciate, Professor Richter performs a cost-benefit analysis of his proposed rule. Her conclusion is that the flexible, three-pronged approach provided by Judge Posner is a “bad bargain” for several reasons. In this brief response, I hope to unpack and complicate Professor Richter’s claims a bit. My primary conclusion is that, while Professor Richter’s proffered solution—stay the course; make incremental improvements to the current patchwork of categorical hearsay rules—is eminently sensible, her analysis glides somewhat easily over several assumptions about how Judge Posner’s rule might operate in practice and, in turn, how the rule would impact the litigation process.
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Charles Duan
Internet Freedom with Teeth
Response to Sapna Kumar, Regulating Digital Trade

Professor Kumar’s article identifies, at bottom, two types of errors with the Commission’s reasoning, and the important distinction between these two types of errors. First, she identifies textual or legal errors with the ITC’s analysis. But in stark contrast, the second category of errors is policy based. More brightly than the run-of-the-mill case, ClearCorrect Operating, LLC v. International Trade Commission, as elucidated by Professor Kumar’s article, illustrates this divide in judicial decision-making between the legal modes of analyses and underlying policy considerations. Full appreciation of the relevance of policy considerations to the ClearCorrect case requires an understanding of the history of the case outside the four corners of the Federal Circuit’s opinion. While Professor Kumar’s article touches upon many aspects of that history, there are numerous additional details and events that shed further light upon the case, details that the present author had the privilege to observe and participate in at times. This Article, then, seeks to offer that broader context of the case and the surrounding debate.
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Andy Spalding
On Maximizing Deterrence Per Dollar
Response to Peter R. Reilly, Incentivizing Corporate America to Eradicate Transnational Bribery Worldwide: Federal Transparency and Voluntary Disclosure Under the Foreign Corrupt Practices Act

Professor Peter Reilly argues that the government “must provide greater transparency regarding specific and calculable benefits that can be achieved through self-reporting and cooperation” in FCPA settlements. And indeed, it may be powerful evidence of his argument’s force that very recently, the government has taken measures to do that very thing. Put another way, Professor Reilly’s is an idea whose time has come. This Essay provides both background and foreground to Professor Reilly’s article. It first explains the role of self-reporting and cooperation in anti-bribery enforcement, suggesting that the government is essentially seeking to adjust both the numerator and denominator of a ratio that might be called Deterrence Per Dollar. This Essay will then describe and endorse Professor Reilly’s critique of FCPA enforcement, and show how the government seems to have recently responded to that critique with a flurry of important reforms. Finally, I briefly discuss the prospects of adopting additional reforms, and conclude by sounding a hopeful note that these would likewise command Professor Reilly’s support.
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Danah Boyd
Undoing the Neutrality of Big Data
Response to Margaret Hu, Big Data Blacklisting

The legal analysis that Margaret Hu sets forth in Big Data Blacklisting focuses on how due process—both procedural and substantive—fails to address the harms produced by big data blacklists. To make her case, she describes three types of contemporary blacklists and outlines how these blacklists have wrongfully classified and harmed numerous individuals, further noting the challenges that these people have faced in navigating a Kafka-esque system. She argues that the data-driven technologies that government agencies have access to allow them to have unprecedented power, producing new dynamics that are both legally and morally challenging. As a hybrid social scientist with a computer science foundation, I not only agree with her claims and conclusions, but also believe that what she’s seeing has deeper roots and implications than she identifies. I want to take up a few of those in response to her article, not to undermine her claims, but to buoy them with additional perspectives.
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Joshua P. Fershee
Natural Gas is Changing the Clean Energy Game, But the Game is Not Over
Response to Felix Mormann, Clean Energy Federalism

In his article, Clean Energy Federalism, Professor Felix Mormann analyzes the keys facets of how energy law and environmental law intersect, as he considers how to implement a program to “decarbonize America’s energy economy.” In this forward-thinking piece, Professor Mormann considers the potential role of renewable portfolio (RPSs) and feed-in tariffs (FITs) and how concurrent implementation at the federal and state level could support a lower-carbon energy future. His conclusion—“that one clean energy policy (RPS) be implemented at the federal and another (FIT) at the state level”—is likely correct from a policy-optimization perspective. Still, as Professor Mormann acknowledges, such policies can face enormous political hurdles.
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Jeffrey R. Boles
The Dilemma of FCPA Self-Reporting
Response to Peter R. Reilly, Incentivizing Corporate America to Eradicate Transnational Bribery Worldwide: Federal Transparency and Voluntary Disclosure Under the Foreign Corrupt Practices Act

Professor Peter Reilly examines the difficult strategic decision a company faces of whether to disclose voluntarily to the government a potential violation of the Foreign Corrupt Practices Act (FCPA), amidst the backdrop of the government’s heightened focus on FCPA enforcement. His excellent article demonstrates how the government enjoys wide flexibility and discretion in carrying out its enforcement activities while providing insufficient direction to companies regarding how to stay within the bounds of the complex statute. The article justifiably criticizes from a business perspective the widely held belief that self-reporting to the government a potential FCPA violation is always in a company’s best interests, and it makes a significant contribution to the literature by exploring the interconnected relationships among self-disclosure, accountability, and deterrence under the FCPA. The following responsive essay discusses new developments that change the contours of the company’s decision-making calculus of whether to self-report. It illuminates how a recent policy change adopted by the U.S. Securities and Exchange Commission (SEC) and a policy proposal under consideration within the U.S. Department of Justice (DOJ) may alter the self-report decision-making process in the private sector. It also provides additional insight into how other dynamic factors, such as the SEC whistleblower program, are growing in influence and may sway a company’s willingness to self-disclose a violation.
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Katheryn Russell-Brown
Body Cameras, Police Violence, and Racial Credibility
Response to Iesha S. Nunes, “Hands up, Don’t Shoot”: Police Misconduct and the Need for Body Cameras

Iesha Nunes’s thoughtful and thorough Note, “Hands Up, Don’t Shoot”: Police Misconduct and the Need for Body Cameras, asks us to consider how to address the problem of police violence tied to racial profiling. Using the rallying cry at the heart of the 2014 police shooting death of Michael Brown in Ferguson, Missouri—“Hands up. Don’t shoot.”—Nunes’s piece focuses on the difficulty of holding police criminally accountable for assault. The legal critique focuses on the fact that eyewitness testimony is notoriously unreliable. Nunes’s solution? Arm all law enforcement officers with body cameras. Requiring police to wear body cameras may do some good. However, we must address why Black claims of state violence have historically been dismissed as incredible, non-critical, and rare. We cannot look to cameras (or other technologies), to solve a problem that has historical roots in racial discrimination.
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Alex B. Long
Retaliation and the Unreasonable Judge
Response to Sandra Sperino, Retaliation and the Reasonable Person

In one sense, Sperino’s article is somewhat reassuring. But the results were also somewhat horrifying in that they laid bare the reality that too many courts seem to take a view of these matters that I would argue is completely at odds with common sense and the reasons why the law prohibits retaliation in the first place. I think the article does a remarkable job of identifying a serious problem with retaliation law as it has developed since the Supreme Court’s 2006 decision in Burlington Northern & Santa Fe Railway v. White. What’s more, for reasons I will explain in slightly more detail later, I think Professor Sperino’s proposed solution—that courts define actionable retaliation in terms of an action that is more than de minimis in nature—is not only workable, but one that I can actually envision a court adopting. Ultimately, the article raised two issues for me: (1) why are so many courts so apparently misguided when it comes to determining what might dissuade a reasonable employee from complaining about discrimination and (2) how might a court actually go about adopting Professor Sperino’s proposed solution?
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Daniel Greene
The Right to “Cure” a Child’s Homosexuality?: A Constitutional Analysis of State Laws Banning Sexual Orientation Change Efforts on Minors

In an effort to protect LGBT youth, in 2012 and 2013 respectively, California and New Jersey became the first two states to pass laws banning medical providers from practicing sexual orientation change efforts (SOCE) on minors. Parents and practitioners alike immediately challenged both laws as violative of a myriad of constitutional doctrines. As of this writing, every court to hear challenges to anti-SOCE laws has upheld them as valid. Furthermore, since 2013, four additional jurisdictions have enacted anti-SOCE laws, and at least six more states are currently proposing similar legislation.

This Note is the first to review anti-SOCE laws under the Free Exercise, Establishment, and Due Process Clauses. After concluding that anti-SOCE laws likely stand up to such challenges, this Note compares anti-SOCE laws to compulsory vaccination laws. While vaccination laws have also been deemed constitutional under the Free Exercise, Establishment, and Due Process Clauses, most state legislatures have nonetheless provided religious exemptions for parents who wish to forgo vaccination for their children. This Note explores whether similar exemptions would be appropriate for anti-SOCE laws, and concludes that such exemptions are inapplicable. Accordingly, state legislatures should continue to enact anti-SOCE laws as modeled after California and New Jersey.
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Wentong Zheng
Self-Reporting and the Uncertain Enforcement of the Foreign Corrupt Practices Act
Response to Peter R. Reilly, Incentivizing Corporate America to Eradicate Transnational Bribery Worldwide: Federal Transparency and Voluntary Disclosure Under the Foreign Corrupt Practices Act

Professor Reilly’s thesis, while straightforward, is predicated on an implicit assumption that uncertainty in FCPA enforcement is undesirable. Professor Reilly makes a compelling argument that when the misconduct has already taken place, the defendant company may choose not to self-report the misconduct if the benefits of self-reporting are unclear. But from an ex ante point of view, the uncertainty surrounding the benefits of self-reporting, along with uncertainty in FCPA enforcement in general, may indeed induce potential defendant companies to comply with the FCPA in the first place.
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Stephen Rose, Vivek Bhandari, and Kimberley Mullins
A Response to Professor Mormann’s Clean Energy Federalism
Response to Felix Mormann, Clean Energy Federalism

Professor Felix Mormann’s work to differentiate clean energy federalism from environmental federalism in his paper, “Clean Energy Federalism,” is important. These two theoretical frameworks are similar, but clean energy federalism incorporates a nuanced understanding of the energy system and renewable resources. Professor Mormann illustrates the difference by analyzing a proposed subsidy scheme that aims to reduce the cost of renewable electricity by reducing risk to investors. He offers two ways to allocate these risks between utilities and ratepayers. We agree with Professor Mormann’s assessment that utilities “have substantial experience with these types of markets and possess the resources and expertise to navigate them successfully.” However, utilities may not always be able to use REC markets to compensate for overly-generous FITs.
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Hannah J. Wiseman
Clean Energy Incentives: Risk, Capture, and Federalism
Response to Felix Mormann, Clean Energy Federalism

Professor Felix Mormann’s article Clean Energy Federalism provides a compelling framework for effectively incentivizing clean energy development in the United States and for theorizing this field. The article tackles two primary questions that arise in the incentives and innovation debate, including what types of incentives work best—such as renewable portfolio standards (RPSs) or feed-in tariffs (FITs)—and what level of government should formulate and administer these incentives. My only quibble with the piece, which is a very minor one, is Professor Mormann’s conclusion that FITs should be state-based endeavors. This response begins in Part I by focusing on the importance of pluralism in clean energy innovation that Professor Mormann so cogently captures. Part II then explores why both FITs and RPSs—not just RPSs—seem well-suited to local, state, or federal control, thus perhaps not requiring FITs to become mired in the federalism debate over which level of government should control a particular policy area.
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Vincent Pulignano
A Known Unknown: The Call for an Article V Convention

Article V of the United States Constitution seems to provide Congress and the states a straightforward way to amend the Constitution. The process of calling a convention of states under Article V, however, is uncharted territory in American history. This article will attempt to answer and provide guidance on key questions regarding whether utilizing the convention method would be a prudent decision.
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Mark Tunick
Regulating Public Access to Body Camera Footage: Response to Iesha S. Nunes, “Hands Up, Don’t Shoot”
Response to Iesha S. Nunes, “Hands Up, Don’t Shoot”: Police Misconduct and the Need for Body Cameras

Iesha Nunes argues that police should be required to wear body cameras. Use of body cameras would provide judges or juries proof of abusive police practices, and may even deter police misconduct from occurring. For many criminal cases the only available evidence is eyewitness testimony, which can be unreliable. Nunes proposes that in order for states to receive certain federal funds, police use of body cameras should be required, and recommends that an unbiased group create uniform guidelines for their use. There is no denying that police use of body cameras could substantially strengthen our ability to protect civil rights and avoid abuses of police power. But as Nunes acknowledges, the widespread use of body cameras must be regulated. In developing policies regarding their use, not only must we keep in mind the obvious advantages they would have in the sorts of cases that have made the national news, but we must consider the implications of their widespread use to record the vast majority of police-citizen encounters.
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Robert J. Rhee
A Response to Professor Reilly’s Incentivizing Corporate America to Eradicate Transnational Bribery Worldwide: What is the Role of Uncertainty in Disclosure of Non-Compliance?
Response to Peter Reilly, Incentivizing Corporate America to Eradicate Transnational Bribery Worldwide

Professor Peter Reilly’s article makes a significant contribution to the literature on the Federal Corrupt Practices Act. Corrupt business practices are immoral and, albeit potentially profit maximizing for a firm that escapes detection, have no social utility. Ideally, there should be complete compliance; realistically, we know that the world is not perfect. Professor Reilly’s article deals with an important question: Upon discovery of a violation, how is voluntary disclosure maximized? In this response, for the purpose of stimulating thought and debate, I play the devil’s advocate and explore how uncertainty of outcome can possibly affect disclosure.
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Danaya C. Wright
A Response to Keith Cunningham-Parmeter
Response to Keith Cunningham-Parmeter, Marriage Equality, Workplace Inequality: The Next Gay Rights Battle

Professor Keith Cunningham-Parmeter’s article on the next gay rights battle tackles one of those intractable civil rights problems: Where do we go next after a victory sets the movement going in a particular direction that might be counter-productive for other battles in the overall war?
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Nancy E. Dowd
Bridging the Work/Family Divide: Implications of a Broader Sex Discrimination Analysis for Men’s Work/Family Issues 
Response to Keith Cunningham-Parmeter, Marriage Equality, Workplace Inequality: The Next Gay Rights Battle

Anthony J. Palermo
Doctors as Debt Collectors? Healthcare Providers and the Florida Consumer Collection Practices Act
Practice Guide

Beginning in the 1960s, state legislatures across the country enacted consumer protection acts that “were originally designed to supplement the Federal Trade Commission’s (FTC) mission of protecting consumers from ‘unfair or deceptive acts or practices’ and are referred to as ‘Little-FTC Acts.’” As the area of consumer collection continues to grow in Florida, various healthcare providers are finding themselves subject to or threatened with a lawsuit for alleged violations of the FCCPA and its federal counterpart. Communications with patients—often sent in accordance with collection policies and procedures, patient agreements, form patient statements, dunning messages, and collection agency contracts—are becoming vehicles for consumer collection claims and exposing healthcare providers to liability. Healthcare providers should become familiar with Florida’s consumer collection laws and implement strategies to increase compliance with and decrease exposure under the FCCPA, FDCPA, and the TCPA.
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Daniel B. Kelly
Trust Term Extension: An Economic Analysis
Response to Reid Kress Weisbord, Trust Term Extension

To compete for trust assets following a change in the federal tax code, many states repealed or abrogated the Rule Against Perpetuities (RAP). By repealing the RAP, these states allow a settlor to create a trust that lasts forever: a “dynasty trust” or “perpetual trust.” The motivation for creating such trusts varies. Some settlors may have dynastic desires. More often, settlors use perpetual trusts to minimize taxes. Regardless, settlors have embraced perpetual trusts, with an estimated $100 billion in trust assets moving into the seventeen states that abolished the RAP as of 2003. In his thoughtful article, Trust Term Extension, Reid Kress Weisbord asks a related question that may arise as a result of these recent developments: “[C]ould the duration of a trust settled in a jurisdiction governed by the Rule Against Perpetuities be extended indefinitely after the jurisdiction’s repeal of the Rule Against Perpetuities?”
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John F. Preis
A Further Note on Federal Causes of Action
Response to Lumen Mulligan, We Should Use ‘Cause of Action’ More Carefully: A Review of John F. Preis, How the Federal Cause of Action Relates to Rights, Remedies and Jurisdiction

It’s hard to disagree with someone who mostly agrees with you, but I will try my best. In his review of my article addressing the relationship between the federal cause of action and rights, remedies, and jurisdiction, Professor Lumen Mulligan pays my article several compliments. In this, I fully agree with him. But the wise Professor Mulligan also attempts to point out some errors in my analysis. On these points, I must mostly voice my disagreement.
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Timothy M. Mulvaney
On Bargaining For Development
Response to Sean Nolon, Bargaining for Development Post-Koontz

In his recent article, Bargaining for Development Post-Koontz, Professor Sean Nolon builds off the pioneering work of Carol Rose, Tony Arnold, and select other property scholars to highlight the role of negotiation in land use law. This responsive essay proceeds in two parts. First, it illuminates the chilling effect Professor Nolon perceives by explaining Koontz’s grounding in the retroactive takings compensation principle adopted by the Supreme Court nearly thirty years ago in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles. Second, it suggests that Professor Nolon’s list of potential government responses to Koontz can be expanded to include at least five additional (if admittedly more radical) courses, several of which may hold slightly more promise for the public than those advanced in Professor Nolon’s insightful critique.
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Bradley A. Smith
Why Buckley?; Why a First Amendment? A Response to Professor Alschuler
Response to Albert Alschuler, Limiting Political Contributions After McCutcheon, Citizens United, and SpeechNow

Calvin H. Johnson
Organizational Capital: A Comment to Professor Kahng
Response to Lily Kahng, Taxation of Intellectual Capital

Michael Risch
Nothing is Patentable
Response to Jeffrey Lefstin, Inventive Application: A History

Lumen N. Mulligan
We Should Use ‘Cause of Action’ More Carefully: A Review of John F. Preis, How the Federal Cause of Action Relates to Rights, Remedies and Jurisdiction
Response to John F. Preis, How Federal Causes of Action Relate to Rights, Remedies and Jurisdiction

If you are a litigator or a scholar of American civil litigation, I bet you used the phrase “cause of action” in the past week. Despite its ubiquity, few of us know, precisely, what cause of action means. And equally important, few of us know how causes of action interact with the concepts of rights, jurisdiction, and remedies. Professor John Preis takes up these important questions in his latest article.
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Laurie R. Blank
In Response to Professor Oren Gross’ The New Way of War: Is There a Duty to Use Drones?
Response to Oren Gross, The New Way of War: Is There a Duty to Use Drones?

For the past decade, drones—the remotely piloted aircraft the United States has used to launch missiles in conflicts and counterterrorism operations from Afghanistan to Libya and points in between—have taken center stage in a moral, legal, strategic, and political debate about the use of force against terrorists and insurgents. This debate has focused predominantly on the potential negative consequences of drones, such as the reduced accountability for the use of force, the geography of conflict, or civilian casualties, for example. In his thought-provoking and forward- looking article, The New Way of War: Is There a Duty to Use Drones?, Oren Gross flips this debate on its head and explores whether countries must use drones in the course of armed hostilities.
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Robert W. Gomulkiewicz
In the Stewardship of Business Model Innovation
Response to Xuan-Thao Nguyen, In the Name of Patent Stewardship: The Federal Circuit’s Overreach into Commercial Law

Patent law scholars often criticize the Federal Circuit because they think it favors patentees. The Supreme Court has reinforced this scholarly critique by taking an usually large number of patent cases in recent years, often reversing the Federal Circuit and admonishing it to avoid patent law exceptionalism. The Federal Circuit’s perceived patent law exceptionalism motivated Professor Xuan-Thao Nguyen to write her article In the Name of Patent Stewardship: The Federal Circuit’s Overreach Into Commercial Law. Professor Nguyen’s concerns about damage to commercial law are not trifles. When it comes to the stewardship of our information economy, the laws that support the commercialization of inventions are just as important as the laws that govern the creation of inventions. Thus, commercial law needs tending just as much as patent law.
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Alexander A. Boni-Saenz
Baselines in Trust Term Extension
Response to Reid Kress Weisbord, Trust Term Extension

Professor Reid Kress Weisbord’s article insightfully identifies what may be the next battleground in the rancorous war over the Rule Against Perpetuities: trust term extension. Seeking to take advantage of the abolition of the Rule in many states, trustees of irrevocable trusts settled before such a change in law might petition the court to extend the term of the trusts they administer, perhaps indefinitely. Professor Weisbord is rightly skeptical of this move, and he recommends a simple but elegant solution: prohibiting the use of modification doctrines to add beneficiaries not identified in the original trust document.
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Mark Fenster
Regulating in the Post-Koontz World
Response to Sean Nolon, Bargaining for Development Post-Koontz: How the Supreme Court Invaded Local Government

Professor Nolon’s consequential focus in his article is the source of its strength, even though his predictive claims are difficult to assess because they are inherently speculative. The one thing we can know for sure is that neither the Court nor advocates on either side of the issue can predict with certainty what will happen—indeed, given the incredibly, wonderfully variable nature of local governments as sub-sub-national regulatory entities, we can only say with certainty that Koontz’s consequences will be complex, often unanticipated, and, literally, all over the map.
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Winston P. Nagan
An Essay and Comment on Oren Gross’, The New Way of War: Is There a Duty to Use Drones?
Response to Oren Gross, The New Way of War: Is There a Duty to Use Drones?

Professor Oren Gross has written a remarkably strong article in defense of the use of drones in the current national security challenge. This article is to be published just after the Obama administration has revealed that two hostages of the al-Qaeda terrorist group have been inadvertently killed in CIA-led drone strikes. These tragedies have made headline news and, at least, implicitly raise important questions about the strategy and tactics for fighting terrorism and the morality and basic ethics of the strategic use of drones to eliminate terrorist operatives. Professor Gross has written an important defense of the U.S. drone strategy. His paper provides much clarification on important questions regarding law and morality. The essential thrust of his paper is that the use of the drone replaces the earlier technology connected with pinpoint bombing of enemy targets. There is a vast difference between the two. No matter how much effort is put into the pinpoint bombing strategy, such use of force has extensive spatial consequences and additionally, will reproduce casualties as an incident of such application.
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B.J. Jones
A Response to Professor Berger’s In the Name of the Child: Race, Gender, and Economics in Adoptive Couple v. Baby Girl
Response to Bethany R. Berger, In the Name of the Child: Race, Gender, and Economics in Adoptive Couple v. Baby Girl

David O. Taylor 
Patent Stewardship, Choice of Law, and Weighing Competing Interests
Response to Xuan-Thao Nguyen, In the Name of Patent Stewardship: The Federal Circuit’s Overreach into Commercial Law

Christopher Serkin
The Winners and Losers in Negotiating Exactions: A Response to Sean Nolon
Response to Sean Nolon, Bargaining for Development Post-Koontz: How the Supreme Court Invaded Local Government

Shelley Ross Saxer
To Bargain or Not to Bargain? A Response to Bargaining for Development Post-Koontz
Response to Sean F. Nolon, Bargaining for Development Post-Koontz: How the Supreme Court Invaded Local Government

Barbara A. Atwood
A Response to Professor Berger’s In the Name of the Child: Race, Gender, and Economics in Adoptive Couple v. Baby Girl
Response to Bethany R. Berger, In the Name of the Child: Race, Gender, and Economics in Adoptive Couple v. Baby Girl

In her intriguing article about Adoptive Couple v. Baby Girl, Professor Bethany R. Berger argues that the Supreme Court “participated in a long-standing trend of using children to forward racial, gender, and economic agendas that violate the rights of their birth parents and, ultimately the interests of the children themselves.” On the one hand, she delivers an astute critique of the holdings and reasoning of Adoptive Couple, pointing out the Court’s missteps in interpreting the Indian Child Welfare Act of 1978 (ICWA). While I might have approached the analysis slightly differently, I agree with her core arguments and share her concern that the Court’s decision will undermine enforcement of ICWA.
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