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The Least Dangerous Branch? Reflections on Bickel’s Classic

Professional Responsibilities & Legal Education Practice Group Teleforum Monday, July 11, 03:00 PMFederalist Society Teleforum Conference Call

The Federalist Society's Teleforum series, Legal Classics Revisited, will consider Professor Alexander Bickel's 1962 book, The Least Dangerous Branch. In a life cut short just before his 50th birthday, Professor Bickel contributed to our understanding of American constitutional law. Among his more provocative concepts was the "counter-majoritarian difficulty." It is not unique to observe that in a nation governed by elected representatives, an unelected Federal judiciary with lifetime tenure represents an anomaly. Alexander Hamilton penned Federalist No. 78 to explain and defend the idea. Professor Bickel takes Hamilton's idea and his title and spends his book exploring the questions: How can an unelected branch of government be a co-equal branch of government? How can society enjoy the benefits of an impartial judiciary without seismic jolting along the fault line between majoritarian and counter-majoritarian institutions? Professor Bickel's questions are still extremely relevant today.

Featuring:

  • Dean Erwin Chemerinsky, Dean and Distinguished Professor of Law, University of California, Irvine
  • James A. Haynes, Attorney and Alternate Judge, U.S. Dept of Labor, Employees Compensation Appeals Board
  • Prof. Ronald Rotunda, Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University Dale E. Fowler School of Law

Giveth & Taketh Away?

Litigation Practice Group Teleforum Friday, July 08, 02:00 PMFederalist Society Teleforum Conference Call

After a bailout that arguably helped keep them afloat, the United States government has effectively nationalized two of the nation's largest financial institutions, Fannie Mae and Freddie Mac. Attorney David Thompson, managing partner of Cooper and Kirk, will survey the legal landscape, which includes numerous suits across the United States advancing different challenges to the government's actions.

Featuring:

  • David H. Thompson, Managing Partner, Cooper & Kirk PLLC

Supreme Court Concludes 2015 Term - Podcast

Practice Groups Podcast
Gregory G. Katsas, Roger Severino June 27, 2016

On June 27, 2016, the United States Supreme Court concluded its October 2015 term by issuing decisions in Whole Woman’s Health v. Hellerstedt, McDonnell v. United States, and Voisine v. United States. Our experts discussed the opinions and the term.

Featuring:

  • Hon. Gregory G. Katsas, Partner, Jones Day
  • Roger Severino, Director, DeVos Center for Religion and Civil Society, The Heritage Foundation

America Invents Act Again at Issue: Cuozzo Speed Technologies, LLC v. Lee - Podcast

Intellectual Property Practice Group Podcast
Kristen Osenga June 21, 2016

On June 20, 2016, the Supreme Court decided Cuozzo Speed Technologies v. Lee. In this case, the Supreme Court examined two provisions of the inter partes review, a proceeding created to provide a cost-effective alternative to litigation for resolving certain challenges to patent validity.

Cuozzo Speed Technologies (Cuozzo) owns a speed limit indicator patent. Garmin International (Garmin) petitioned the US Patent and Trademark Office (PTO) for inter partes review of Cuozzo’s patent. The Patent Trial and Appeal Board of the PTO agreed to reexamine claim 17, as requested by Garmin, as well as claims 10 and 14. After the inter partes review proceeding, the Board concluded that all three claims (10, 14, and 17) were invalid. Cuozzo appealed to the U.S. Court of Appeals for the Federal Circuit, arguing that 1) the Board improperly instituted inter partes review of claims 10 and 14, because Garmin had not challenged these claims and 2) that the Board improperly used a claim construction standard set forth by PTO regulation calling for claim terms to be given their “broadest reasonable construction,” a standard that differs from that used in district court litigation (“ordinary meaning”). A divided Federal Circuit rejected both arguments, noting that 1) decisions to institute inter partes reviews are nonappealable by statute and 2) that the application of the broadest reasonable construction standard was a reasonable exercise of the PTO’s rulemaking authority. The Supreme Court granted certiorari to review both issues.

With respect to the appealability of decisions to institute inter partes review, the Supreme Court agreed with the Federal Circuit. 35 U.S.C. § 314(d) states “The determination by the Director [of the PTO] whether to institute an inter partes review under this section shall be final and non-appealable.” The statute means what it says. With respect to the claim construction standard, the Supreme Court also agreed with the Federal Circuit, holding that the PTO has the authority to issue and abide by its broadest reasonable construction regulation.

Our expert discussed the opinion of the Court, delivered by Justice Breyer, including the Supreme Court’s reasoning behind the holdings in Cuozzo Speed Technologies, as well as a concurrence authored by Justice Thomas and an opinion concurring-in-part and dissenting-in-part written by Justice Alito and joined by Justice Sotomayor.

Featuring:

  • Prof. Kristen Osenga, Professor of Law, University of Richmond School of Law

RICO's Reach: RJR Nabisco, Inc. v. The European Community Decided - Podcast

Litigation Practice Group Podcast
Cory L. Andrews June 20, 2016

On Monday, June 20, the United States Supreme Court released its decision in RJR Nabisco, Inc. v. The European Community. The case arose in the 2nd Circuit. The European Community, now the European Union, alleged that RJR participated in a scheme to launder illegal drug sale proceeds in Europe and attempted to sue in the United States' courts. The Court held that they could not sue under RICO, the Racketeer Influenced and Corrupt Organizations Act, because irrespective of any extraterritoriality of the law's substantive provisions, a private right of action does not overcome the presumption against extraterritoriality and thus a private plaintiff must allege and prove a domestic injury.

Featuring:

  • Cory L. Andrews, Senior Litigation Counsel, Washington Legal Foundation