Print Volume 91, Issue 3
The third issue of Volume 91 of the Notre Dame Law Review is headlined by Chief Justice Leo E. Strine, Jr. of the Delaware Supreme Court and Nicholas Walter, an associate at Wachtell, Lipton, Rosen & Katz. In their article, Originalist or Original: The Difficulties of Reconciling Citizens United With Corporate Law History, they argue that the Supreme Court’s Citizens United decision cannot be justified solely on the originalist method of constitutional interpretation. In fact, they argue that the Citizens United result is at odds both with the historical understanding of business corporations’ legal subordination to the decisions made by elected legislators and the lengthy history of federal and state legislation restricting the involvement of for-profit corporations in the political process.
Next, Professor Andrew Guthrie Ferguson of the David A. Clark School of Law at the University of the District of Columbia has written an article titled The Big Data Jury. The Article addresses the disruptive impact and potential benefits of big data on jury selection and the dilemma it presents to courts, lawyers, and citizens.
Then, in The Supreme Court’s Quiet Revolution in Induced Patent Infringement, Professor Timothy R. Holbrook of Emory University critiques certain aspects of Commil USA, LLC v. Cisco Systems, Inc., where the Supreme Court held that good-faith belief by an accused infringer that the patent was invalid cannot negate the mental state required for inducement. The Article suggests that a good-faith belief that the induced acts are not infringing, which remains as a defense, should only act as a shield against past damages and not against prospective relief such as injunctions or ongoing royalties. Professor Holbrook argues that the courts have failed to appreciate this important temporal dynamic.
In Patent “Trolls” and Claim Construction, Professor Greg Reilly of the California Western School of Law explores the largely overlooked relationship between claim construction and patent assertion entities (or “trolls”), finding that claim construction problems and trends benefit patent assertion entities in ways not previously considered.
Our next article, Unilateral Invasions of Privacy, is by Professor Roger Allan Ford of the University of New Hampshire School of Law. Professor Ford develops a theory of unilateral invasions of privacy rooted in the incentives of potential outside privacy invaders. It then turns to privacy regulation, arguing that this unilateral invasion theory sheds light on how effective privacy regulations should be designed.
Then in The Meaning of the “Privileges and Immunities of Citizens” on the Eve of the Civil War, Dr. David R. Upham of the University of Dallas explores antebellum evidence to illuminate the original understanding of the “privileges and immunities of citizens of the United States.”
Finally, the third issue showcases a book review of Professor Robert P. George’s Conscience and its Enemies: Confronting the Dogmas of Liberal Secularism. The review is entitled: The Unconscionable War on Moral Conscience and is written by Professor Michael Stokes Paulsen of the University of St. Thomas.