Note

Courts as Diplomats: Encouraging an International Patent Enforcement Treaty Through Extraterritorial Constructions of the Patent Act

Although patent rights confer substantial market control within their territorial scope, globalization is increasingly threatening the value of patent protection. Under the current regime, innovators who enter the global marketplace must obtain patent protection in each jurisdiction where they hope to market their product, and they must litigate infringement claims separately in each of those states. The prohibitive cost of this regime has led many scholars and intellectual property law officials to call for a global patent enforcement treaty, but, despite years of negotiations, all efforts to draft such an agreement have failed.

This Note examines the role that U.S. courts may play in promoting a global patent enforcement treaty. Drawing on an emerging line of statutory interpretation scholarship that encourages courts to rely on default rules that will promote desirable political action, it examines the two primary sources of judicial power in international patent law: extraterritorial application of the Patent Act and supplemental jurisdiction over foreign patent infringement claims. After concluding that a treaty-eliciting interpretive rule is appropriate in the context of a global patent enforcement treaty, the Note contends that a presumption in favor of extraterritoriality for the Patent Act is the more efficient way to provoke discord among the major economic powers and prod the international community to address the needs of innovators in the global economy.

Disorder Certifying a Class: Misinterpretations of Rule 23(c)(1)(B) and a Proposed Alternative

Rule 23(c)(1)(B) was added to the Federal Rules of Civil Procedure in 2003 as one of several amendments to govern the mechanics of class-action litigation. Although the Rule generated almost no concern among practitioners or scholars at the time of its enactment, it has since become an unexpected fount of litigation. The Rule does not address the all-important question of whether to certify a particular class; it simply specifies the contents of the order that district courts must compose after deciding that certification is proper. In short, certification orders must “define the class claims, issues, or defenses.” The leading opinion construing the Rule holds that it requires courts to provide detailed lists of the claims, issues, and defenses that will be resolved in the class action. That opinion is wrong. The text, history, and purposes of Rule 23(c)(1)(B) reveal the Rule’s limited scope: In ordinary cases, a certification order that simply references counts from the plaintiffs’ complaint or certifies “all of plaintiffs’ claims” would easily satisfy the Rule. Because many courts misread the Rule as requiring extensive detail, litigants have incentives to pursue wasteful motion battles over the mere formatting of class-certification orders. By debunking misinterpretations of the Rule, this Note attempts to end such battles.

Yoder Revisited: Why the Landmark Amish Schooling Case Could—And Should—Be Overturned

Wisconsin v. Yoder is a case in which the United States Supreme Court held that Amish children could not be compelled by the state to attend school past eighth grade, as this would violate their parents’ Free Exercise rights. This Note asserts that Yoder is an obsolete opinion that is ripe for overturning. 

The Supreme Court takes into account four stare decisis factors when reconsidering a prior decision. It considers (1) whether the factual circumstances have evolved in such a manner “as to have robbed the old decision of significant application or justification,” (2) whether the decision is subject to reliance interests that would create “special hardships or inequities” if it were overruled, (3) whether “related principles of law have so far developed as to have left the old decision no more than a remnant of abandoned doctrine,” and (4) whether the decision has proven to be unworkable.

This Note holds that the Yoder decision does not hold up under these considerations. It contends that (1) the factual assumptions that underpin Yoder are no longer accurate and that recent changes have undermined the decision, (2) that the Yoder exemption is not subject to reliance interests that would create “special hardships or inequities” if it were overturned, (3) that the Court’s ruling in Employment Division v. Smith has leftYoder a relic of abandoned doctrine, and (4) that the “hybrid-rights” theory that Yoder’scontinued applicability rests on is unworkable. 

The Note concludes that because Yoder fails each of the four stare decisis tests, the decision should be overturned.

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