Vol. LIV No. 5

The Clough Distinguished Lecture in Jurisprudence: Constitutionalism and Coercion

Abstract: A common understanding of constitutionalism sees a constitution as a device for keeping self-serving, corrupt, misguided, incompetent, power-hungry, or otherwise bad officials from doing bad things. But an alternative vision of constitutionalism recognizes the role of a constitution in imposing second-order constraints on the well-intended and often wise policies and decisions of even good […]

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The Competitive Advantage of Weak Patents

Abstract: Does U.S. patent law increase the competitiveness of U.S. firms in global markets? This Article argues that, contrary to the beliefs of many U.S. lawmakers, U.S. patent law currently undermines the ability of U.S. firms to compete in global markets because strong U.S. patent rights actually weaken an overlooked but critical determinant of U.S. competitiveness: […]

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The Citizenship Line: Rethinking Immigration Exceptionalism

Abstract: It is not possible to police the movement of “aliens” without first determining who is and is not a citizen. Yet little scholarly attention has been devoted to the nature of citizenship determinations or their implication for our understanding of immigration enforcement as a whole. Thousands of U.S. citizens are caught up in immigration […]

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Social Enterprise: Who Needs It?

Abstract: State statutes authorizing firms to pursue mixtures of profitable and socially beneficial goals have proliferated in the past five years. In this invited response essay, I argue that for one large class of charitable goals, the so-called “social enterprise” firm is often privately wasteful. Although the hybrid form is a bit more sensible for […]

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Two Federally Subsidized Health Insurance Programs are One Too Many: Reconsidering the Federal Income Tax Exclusion for Employer-Provided Health Insurance in Light of the Patient Protection and Affordable Care Act

Abstract: Section 106 of the Internal Revenue Code (I.R.C.) provides a federal income tax exclusion for the value of employer-provided health insurance. This decades-old provision was enacted for the primary purpose of increasing the incidence of health insurance in the United States. Since its adoption, scholars have advanced a number of additional policy considerations in support […]

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Don’t Stop the Clock: Why Equitable Tolling Should Not Be Read into the Hague Convention on International Child Abduction

Abstract: Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction allows an abducting parent to avoid the return of the child if the parent can show that more than a year has passed since the wrongful removal or retention of the child, and that the child is well settled in […]

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Bridging the (Liability) Gap: The Shift Toward § 271(b) Inducement in Akamai Represents a Partial Solution to Divided Infringement

Abstract: In recent years, the U.S. Court of Appeals for the Federal Circuit made it increasingly difficult for patentees of method patents to hold any party liable for infringement in divided infringement cases. As such, the Federal Circuit failed to adequately protect method patentees, leaving a glaring liability loophole in patent infringement jurisprudence. In 2012, […]

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Coming Up for Air: The Constitutionality of Using Eminent Domain to Condemn Underwater Mortgages

Abstract: Following the Great Recession, home prices in many areas capsized, leaving many homeowners “underwater.” Today, home prices have not yet returned to pre-recession levels, leading many commentators to fear that these underwater mortgages will default and bring about a flood of new foreclosures. Local governments are now contemplating using the power of eminent domain […]

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Check Fraud and the Common Law: At the Intersection of Negligence and the Uniform Commercial Code

Abstract: Common law negligence claims persist in check fraud cases despite the Uniform Commercial Code’s loss allocation provisions in Articles 3 and 4. Absent an explicit preemption provision, courts disagree as to whether, when, and to what extent the Code preempts these common law claims. As a result, the courts’ varying analytical approaches to common […]

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