Ableman v. Booth occupies a significant place in constitutional history for upholding the Fugitive Slave Act of 1850 and presenting the antebellum Supreme Court’s theory of federalism. This Note presents a new interpretation of the states’ rights movement in Wisconsin that necessitated the Supreme Court’s ruling in Ableman and argues that, viewed in this historical context, the decision was a complete failure. When a fugitive slave was captured in Milwaukee, Wisconsonites wished to reject the principles of the Fugitive Slave Act in response to the Kansas-Nebraska Act but were not yet willing to violate the law. The Supreme Court of Wisconsin enabled social change by providing the people with states’ rights as a legal basis to reject the Fugitive Slave Act. Federal attempts to vindicate the Fugitive Slave Act, culminating in Ableman, created a backlash that transformed states’ rights into a popular movement. Party politics exacerbated this backlash, as Republicans opportunistically used states’ rights against the more moderate Democrats. As a result, states’ rights controlled every major election in Wisconsin and nearly precipitated a civil war. Moreover, Ableman nearly pushed other states to use states’ rights to challenge the federal government, as national antislavery leaders hoped to use the theory for their own goals. Conflict was averted only because the theory became inconvenient for Republicans in the 1860 presidential election, not because of federal coercion resulting from Ableman.
Extraterritorial Patent Enforcement and Multinational Patent Litigation: Proposed Guidelines for U.S. Courts
Patent law is traditionally territorial in scope. With recent additions to the Patent Act, Congress, however, has taken action to expand the effective territorial scope of U.S. patents. Moreover, courts, in interpreting this recent legislation, have exhibited a willingness to expand further the reach of U.S. patent law. Concurrent with Congress’s and the judiciary’s struggle to resolve these questions regarding the territoriality of U.S. patents, the United States Court of Appeals for the Federal Circuit recently faced the question of whether U.S. courts should adjudicate claims based on foreign patents. The reluctance of U.S. courts to adjudicate foreign patent claims is inconsistent with recent decisions that seek to stretch U.S. patent law even further and with foreign courts that have adjudicated foreign patent claims. Given that an increasing number of entities hold patents on the same inventions in multiple jurisdictions, multinational patent litigation inevitably will continue to be a crucial issue in international patent law. This Note fills a gap in the academic literature by undertaking an examination of both extraterritorial patent enforcement and multinational patent litigation. This Note brings together divergent strands of research by examining both extraterritorial patent enforcement and multinational patent litigation. Ultimately, this Note suggests that courts should consider enforcing foreign patents in certain situations instead of trying to apply U.S. patents extraterritorially.
Mediating Rules in Criminal Law
This article challenges the conventional divide between substantive criminal law theory, on the one hand, and evidence law, on the other, by exposing an important and unrecognized function of evidence rules in criminal law. Throughout the criminal law, special rules of evidence work to mediate conflicts between criminal law’s deterrence and retributivist goals. They do this by skewing errors in the actual application of the substantive criminal law to favor whichever theory has been disfavored by the substantive rule itself. The mediating potential of evidentiary rules is particularly strong in criminal law because the substantive law’s dominant animating theories – deterrence and retributivism – respond asymmetrically to the workings of those rules. We analyze the features of “mediating rules,” explore their effects across a range of substantive areas, and offer a tentative normative assessment of their role in the criminal law system.