Burnt Bridges: Retreat of the Federal Judiciary from Land Use Litigation

The decision by the Ninth Circuit Court of Appeals in Petaluma, despite its obvious and substantial reliance on the requirements of standing to sue, tempts the commentator to leap to a discussion of the merits. After the District Court's decision, many of us watched the case closely, either hoping or fearing that it would become the tock to the tick of Golden v. Planning Board of Town of Ramapo,¹ establishing some limitations to the license of communities to define themselves and their growth at the expense of excluded nonresidents. The unanimous opinion by the Ninth Circuit panel bristles with hostility to the right-to-travel rationale of the District Court and invites comment on this level.     

Is tobacco a drug? Administrative agencies as common law courts

Professor Cass Sunstein argues that the FDA has the authority to regulate tobacco products. He considers the text of the Federal Food, Drug, and Cosmetic Act, which supports the FDA assertion, and the context of its enactment, which argues against the FDA. He resolves the tension between text and context in favor of FDA jurisdiction by turning to the emerging role of administrative agencies. In modern government, he contends, administrative agencies have become America's common law courts, with the power to adapt statutory regimes to new facts and new values when the underlying statute is ambiguous. Professor Sunstein's Article, like the other pieces in this volume, was written after the United States District Court for the Middle District of North Carolina decided Coyne Beahm v. FDA, but before a three judge panel of the United States Court of Appeals for the Fourth Circuit reversed that decision in Brown & Williamson Tobacco Corp. v. FDA. In Coyne Beahm, the District Court held that the Federal Food, Drug, and Cosmetic Act authorized the FDA to regulate tobacco products, but not tobacco advertising. The Fourth Circuit rejected the District Court's jurisdictional ruling and invalidated the FDA's regulations in their entirety. The Clinton Administration has since requested an en banc rehearing before the Fourth Circuit.     

Google Image Search: the Ninth Circuit weighs in

On appeal from the Central District of California, the NinthCircuit reversed and vacated the district court's finding ofcopyright infringement and preliminary injunction order againstGoogle's use of thumbnail images for an image-based search engine.The Ninth Circuit also reversed the District Court's rejectionof Perfect 10’s secondary liability claim against Googlefor contributory copyright infringement.     

Mt. Laurel: A Note to Petaluma

Facilitated by the phenomenon of Xerox reproduction, though perhaps delayed by the United States Mails, the decision of the Supreme Court of New Jersey in Southern Burlington County NAACP, et al. V. Mt. Laurel arrived in California. As we await the decision of the United States Court of Appeals in Construction Industry Association v. Petaluma, mapy of US form a captive aubience. In the mail which brought a request for a commentary for this publication I also received a copy of a cover letter from the attorney for the Construction Industry Association, which letter directed a copy of Mt. Laurel opinion to the judges of the Federal Court of Appeals. My receipt of these diverse items was not accidental, for I participated in the oral argument in the Petaluma appeal as one of the amicus counsel in support of the city-appellant. The following are my impressions.     

The DC Court of Appeals resurrects Redskins dispute

Seven American Indians petitioned to cancel trade mark registrationsfor various REDSKINS trade marks; the district court's grantof summary judgment against them for laches (unreasonable delay)was remanded by the Court of Appeals for the DC Circuit fora rehearing in respect of one of the petitioners on the basisthat the district court ‘started the laches clock’in 1967, when he was only 1 year old, thus contravening theequitable principle that laches runs only from the time a partyhas reached the age of majority.     

US Appeals Court invalidates retroactive assignments of copyrights

A unanimous panel of the US Court of Appeals for the SecondCircuit held that a ‘retroactive’ assignment ofownership from a co-author of a copyright to an alleged infringercannot defeat the other co-author's accrued infringement claims.The court also held that a written agreement could not ‘ratify’an earlier oral agreement to transfer ownership.     

Copyright in Inanimate Characters: The Disturbing Proliferation of Microworks and the Negative Effects on Copyright and Free Expression

In its September 2015 decision in DC Comics v. Towle, the United States Court of Appeals for the Ninth Circuit recognized the existence of a copyright for inanimate characters. The court held that the Batmobile – a fictional car driven by a fictional superhero – was an independently copyrightable work. This article explores the problems with the Ninth Circuit's analysis and argues that increasing copyright protection for what the authors call “microworks” is misguided and harms First Amendment interests.     

The FDA may not regulate tobacco products as "drugs" or as "medical devices"

Professor Richard Merrill contends that the Federal Food, Drug, and Cosmetic Act does not grant the FDA regulatory authority over cigarettes and smokeless tobacco products. The fact that Congress did not expressly deny the FDA regulatory authority over tobacco cannot, Professor Merrill argues, be used to infer such authority. This inference is particularly inappropriate in the case of tobacco regulation, he maintains, because there is compelling evidence that Congress had no intention of delegating this authority to the FDA. He is unpersuaded that presidential approval legally sanctions the FDA's claim of authority by granting it a superficial political legitimacy. Finally, he reminds us of the FDA's own repeated denials of jurisdiction over tobacco products, and he recalls the numerous times that Congress passed legislation directed at tobacco without granting the FDA any role in its regulation. Professor Merrill's Essay, like the other pieces in this volume, was written after the United States District Court for the Middle District of North Carolina decided Coyne Beahm v. FDA, but before a three judge panel of the United States Court of Appeals for the Fourth Circuit reversed that decision in Brown & Williamson Tobacco Corp. v. FDA. In Coyne Beahm, the District Court held that the Federal Food, Drug, and Cosmetic Act authorized the FDA to regulate tobacco products, but not tobacco advertising. The Fourth Circuit rejected the District Court's jurisdictional ruling and invalidated the FDA's regulations in their entirety. The Clinton Administration has since requested an en banc rehearing before the Fourth Circuit.     

US Appeals Court reminder: threats of litigation made during TTAB settlement discussions may support jurisdiction for declaratory judgment

The Court of Appeals for the Ninth Circuit held that jurisdictionwas proper in a declaratory judgment action brought to establishtrade mark non-infringement, when the plaintiff had a reasonableapprehension of litigation based on threatening statements madeduring the course of discussions to settle disputes pendingbefore the Trademark Trial and Appeal Board (TTAB) that wereotherwise subject to Federal Rule of Evidence 408, which typicallymakes statements made during settlement inadmissible for establishingliability but not for other purposes.     

The Impact of Transformations in National Cultural Identity upon Competing Constitutional Narratives in the United States of America

Shifts in the national cultural identity of the US have been reflected in shifts in the US?? dominant constitutional narratives. For the United States, ??inter-legality?? has been less a matter of dealing with alternative non-state legal narratives than of contending with constantly arising and competing narratives about the ??correct?? nature of the ??official?? legal order of the state. The US Supreme Court has claimed to have the ??last word?? in resolving these arguments but because that Court is so often sharply divided and because the Court membership and the nature of its ??last words?? changes so often, where a significant element of the society seeks to advance its ideas and interests, it will often do so in legal and constitutional terms. As the national culture undergoes changes, a competing constitutional narrative may gain ground and even ultimately prevail, at least for a time, and achieve Supreme Court ??endorsement?? for its claims.     

在政治与法律之间——气候变化诉讼中的政治问题理论

气候变化问题越来越引起全球关注,与此相应,气候变化诉讼案件在世界各国法院大量涌现。无论在美国还是在其他国家,气候变化诉讼都面临一个法律障碍:法院是否有权进行裁决。这取决于各个国家是否将气候变化问题视为法律问题。在美国,气候变化诉讼从产生之日起就面临所谓的"政治理论问题"的困扰。根据美国最高法院判例,政治性的问题或者那些被宪法和法律授予行政部门负责的问题,决不能由本法院来处理。气候问题是不是政治问题,引起了法律界的广泛关注。美国法院的判决在双方面也没有一个明确的答案。随着跨国气候变化诉讼的增加,联合国也开始关注这一问题。中国作为世界最大的碳排放国,应该及早在法律上作出应对。     

论民事诉讼申请再审期间制度之重构——以《民事诉讼法》修改为背景

《民事诉讼法》的修订在即,再审制度的完善仍然是本次修法的焦点。申请再审期间制度是再审制度的重要内容,也是考量再审制度设置合理化、规范化的重要问题。目前,我国现有申请再审期间的规定被学者们广为诟病,在实践中也不利于申诉滥情形的治理,故在本次《民事诉讼法》修订时,对该制度进行重构势在必行。     

Could Wild Horses Drag Access Away From Courtrooms? Expanding First Amendment Rights to New Pastures

More than thirty years ago, the Supreme Court of the United States created a First Amendment right of access to criminal trials in Richmond Newspapers, Inc. v. Virginia. At the time—and in the Supreme Court cases that immediately followed Richmond Newspapers—the assumption was that such a right of access would apply only to judicial proceedings. This article examines a small but significant body of case law that extends the First Amendment right of access to criminal proceedings to new venues far removed from courtrooms. Using the 2012 opinion of the United States Court of Appeals for the Ninth Circuit in Leigh v. Salazar as an analytical springboard, this article analyzes how the so-called experience-and-logic test fashioned by the high Court in Press-Enterprise Co. v. Superior Court in 1986 is being applied in such cases. Cases like Leigh also provide an excellent opportunity for courts to clarify precisely the nature and extent of the history required to find qualified rights of access given the relatively recent government program to which the plaintiff in that case now seeks access.     

论美国联邦最高法院宪法解释的创造性

美国联邦最高法院的宪法解释具有创造性,其主要表现在司法审查权、三重审查标准、选择性吸收理论、推翻先例和创造新的公民权利等五个方面。原旨主义和非原旨主义都会达至具有创造性的宪法解释,原旨主义具有天然的民主合法性,有时美国联邦最高法院会以原旨主义来掩饰它们具有创造性的宪法解释。宪法解释的创造性是一把双刃剑,有积极性的一面也有消极性的一面。美国联邦最高法院的宪法解释曾经也将永远具有创造性,只有如此它才能为宪法提供与时俱进的新意义。     

A home run for fantasy baseball leagues

The US Circuit Court of Appeals for the Eighth Circuit upheldthe ruling of the District Court that CBC's use of baseballplayers' names and statistics in its fantasy baseball leaguedid not violate the players' rights of publicity because itwas protected speech under the First Amendment of the US Constitution,and that an earlier contractual provision between the partiescould not be enforced against CBC to preclude its use of theplayers' names and statistics.     

Claim construction and the doctrine of equivalents in Amgen v Transkaryotic Therapies, Inc

The US Court of Appeals for the Federal Circuit has affirmeda District Court decision that Transkaryotic Therapies Inc andAventis Pharmaceuticals Inc infringed Amgen's erythropoietin(EPO) patents; this decision upheld the validity of two of Amgen'sEPO patents and the infringement by Transkaryotic of three patents,including a patent that does not expire until 2015.     

LinkedLegal: Investigating social media as evidence in courtrooms

The pervasive nature of social media suggests it would increasingly appear as evidence in the courtroom as it has increasingly documented daily life. This research examines the use of such evidence through the review of appellate judgments. It has identified 5,189 appeal cases in federal and state jurisdictions for the period from 1 October 2000 to 30 September 2017. California was used for the state jurisdictional analysis and the Ninth Circuit Court of Appeals, which includes California, was used for the federal. In 2017, there was a 350% increase in Ninth Circuit cases using social media evidence as compared to the first cases in 2010. There was a 3933% increase in the California state cases from the first cases in 2007. Photos/images evidence were used the most in State criminal cases and all Federal cases, while posts evidence was used the most in State civil cases.     

Non-obviousness standard under fire: flexible application of TSM test may result in validity challenges against many US patents

The US Supreme Court has reversed a judgment of the FederalCircuit, holding that a flexible application of the TSM testmay result in validity challenges against many US patents.     

Setting the stage: Arnold Schwarzenegger and video games prepare for battle in the United States Supreme Court

Video games often feature a character that evolves into an iconic superhero. In a strange twist of fate, the video game medium will have the opportunity to become a superhero itself. The recording, comic book, and movie industries have rallied around video games as the case of Arnold Schwarzenegger vs. Entertainment Merchants Association and Entertainment Software Association reaches the Supreme Court of the United States. The case concerns a 2005 California ban on the sale of violent video games to minors. The law was later overturned by the District Court and the 9th Circuit Court on appeal. At issue is whether the law violates the First Amendment of the Constitution. Do video games deserve the full protection of the Constitution as a legitimate form of speech, or should it be limited due to its alleged effects on the psychological well-being of minors? This Article will look at the impact this case may have when it reaches the Supreme Court, an analysis of the issues that will be argued, and the history of legislation involving violent video games.