Historically high levels of abusive patent enforcement fuel an ongoing debate on the need for legislative and judicial reforms designed to deter bad faith conduct by patent holders. To date, this debate has focused intently on the direct monetary costs and benefits of reform, most notably the impact on litigation costs and patent valuations. This Essay argues that this focus has led patent reformers and their opponents to overlook a significant indirect benefit of taking action against bad actors: namely, that strengthening courts’ ability to punish and prevent bad behavior will tend to make patent law more coherent and predictable in the long run. As the Essay explains, patent law’s lack of effective deterrents to bad faith conduct likely played a role to the creation of some of the most perennially confounding aspects of patent law. In the words of a familiar adage, patent law has seen its fair share of “bad facts” spawning “bad law.” In light of this history, there is good reason to believe that one benefit of raising the bar for acceptable conduct in patent litigation is that patent law will thereafter develop more logically for the simple reason that courts will be forced to grapple with bad facts (and thus tempted to make bad law) less often as a result.
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Famigration (Fam-Imm): The Next Frontier in Immigration Law
The recently published article, Immigration’s Family Values by Professor Kerry Abrams and R. Kent Piacenti, and the forthcoming Removing Citizens: Parenthood, Citizenship, and Immigration Courts by Kari Hong examine how, when, and why immigration law uses a different definition of family than the one used in state courts. Despite their differences, in conversation, these two pieces highlight how the Department of Homeland Security likely is either following misguided policies or pursuing improper objectives when creating a federal family law. Crimmigration (Crim Imm) scholarship successfully identified the ways in which the (purported) civil proceedings of immigration law needed the extra constitutional protections found in criminal law. In analogous ways, Famigration (Fam Imm) calls on scholars to engage in the similar project of scrutinizing existing immigration practices through the lens of family law. In doing so, a more systematized approach may introduce constitutional protections, resolve federal and state law conflicts, and formulate more universal, idealized concepts into the technocratic scheme of the Immigration and Nationality Act.
Noel Canning and Remedial Obligation Under the Constitution
There is a pervasive assumption that the Supreme Court’s ruling in NLRB v. Noel Canning has rendered void the decisions of the Board during the period when it lacked a quorum because a majority of its members held their posts through unconstitutional recess appointments. The assumption is unfounded. The question of remedy for the wrong identified in Noel Canning should not be decided in the air; it should be decided contextually, as one involving whether and how to provide relief to parties affected by a wholly concluded constitutional violation, in a manner that is akin to harmless- and plain-error review.