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Abstract:
This Article provides context for the ongoing debate on opportunistic licensing (or patent troll) litigation by pointing out that the same phenomenon occurred in the nineteenth century with respect to design patents on farm tools. This previously unexplored episode shows that trolls (or sharks, as they were called then) explode when patents are extended to inventions that: (1) are cheap to acquire; (2) are hard for a defendant to substitute away from; and (3) evolve incrementally. Modern information technology and basic farm tools share these traits, albeit for different reasons. The Article then compares the remedies proposed in each era and concludes that curbing trolls through a comprehensive reform is bound to fail. A better approach would seek either to abolish software and business method patents or reduce the arbitrage spread by raising the maintenance fees charged to retain patents.

Abstract:
This Essay argues that those seeking constitutional change ought to take a closer look at using the Article Five procedure by which state legislatures can petition Congress for a new constitutional convention. While the chances that such a conclave will occur are slim and none, the process for calling together such a body is a useful tool for getting voters to the polls and influencing the Supreme Court. After looking at some historical examples, the Essay points out that both parties are using state ballot initiatives to increase turnout at election time and that doing the same with Article Five petitions would increase the quality and quantity of citizen participation. Furthermore, a series of such petitions would constitute persuasive authority of contemporary constitutional values no different from the state legislation that the Justices look to in cases under the Eighth Amendment and the Due Process Clause.

Abstract:
This Article provides a comprehensive analysis of dilution and explores the relationship between that theory and traditional infringement. After elaborating this unified approach, the paper concludes that dilution is the transitional law of trademark. The breadth of dilution allows court to extend protection during periods where infringement cannot due to changes in technology or conditions that leave its doctrine outmoded. Once infringement adjusts, however, courts rein in dilution to prevent the creation of in gross property rights for marks. This cycle occurred twice in the last century (once in the 1920s-50s, and then again in the 1990s) and shows that dilution has almost no role as an independent action.

Abstract:
This Essay examines whether children born here to illegal immigrants are citizens of the United States. Though longstanding practice supports citizenship under these circumstances, critics like Peter Schuck, Rogers Smith, and Richard Posner argue that the subject to the jurisdiction language in the Fourteenth Amendment can be construed to exclude these children. For the most part, this claim draws on the debates surrounding the exclusion of the Native American Tribes from birthright citizenship, which was the primary object of subject to the jurisdiction language.

In reviewing (and rejecting) this revisionist argument, the Essay makes two significant points. First, the Framers of the Fourteenth Amendment excluded the Tribes from equal citizenship because that was inconsistent with the autonomy they were promised in Worcester v. Georgia. Consequently, the Citizenship Clause in this respect was a necessary evil that should not be extended by construction to cover illegal immigrants. Second, the appropriate analogy for this problem is not the Tribes, but the traditional common-law exception from birthright citizenship for enemy aliens in hostile occupation. The operative question for establishing jurisdiction in a constitutional sense when foreign invaders are involved is whether we can exercise a minimal level of enforcement of its authority. With respect to illegal immigrants and their kids, the answer is yes.

Abstract:
This Article examines the failure of the incorporation doctrine following the ratification of the Fourteenth Amendment and draws some lessons from that experience for the live issue of whether the Second Amendment should apply to the States.

The analysis reaches three main conclusions. First, the Slaughter-House opinion did not foreclose the application of the Bill of Rights to the States. A careful review of the cases and commentary interpreting Slaughter-House from 1873 until 1900 shows that almost nobody thought that the case spoke to the issue. Second, courts reviewing incorporation litigation in this era distinguished between procedural claims, where there was little support for the concept, and substantive claims, where there was support. Unfortunately for advocates of incorporation, virtually all of these initial cases were about procedural issues, which created negative momentum for the whole concept. Third, enthusiasm for applying substantive provisions (e.g., free speech, free exercise of religion, freedom from unreasonable searches and seizures, or cruel and unusual punishment) to the States disappeared in the mid-1890s because of fear created by a surge in protests from Populist activists and labor leaders. Just as civil liberties have traditionally retreat in wartime, the same dynamic retarded the expansion of the Bill of Rights in a period of domestic discord. Based on these conclusions, the analysis holds that the historical evidence supports the incorporation of the right to bear arms.

Abstract:
This Article contends that the assassination of Huey P. Long (The Kingfish) of Louisiana was a major turning point in the development of New Deal constitutionalism. Following his election as Governor in 1928, Long built one of the most formidable political machines ever seen in the United States. Indeed, he amassed so much power that contemporary observers routinely called his regime the first dictatorship in our history. For instance, Long abolished minority rights in the legislature, curtailed judicial review, took over the vote counting system, established a State Board of Censors to regulate political speech, and declared martial law against his opponents. Moving rapidly on to the national stage with his election to the Senate - he was Senator and Governor at the same time - Long established a national Share Our Wealth movement with the goal of challenging Franklin D. Roosevelt for the Democratic nomination in 1936.

The abuses in Louisiana triggered a broad national debate about whether the State still had a republican form of government as required by the Guarantee Clause of Article Four. Eventually, this outbreak of popular constitutionalism reached the President, who was desperate to find a way to stop Long. Not only did the President discuss the issue in press conferences, but he asked the Justice Department to examine the question in a lengthy memorandum. In August 1935, the House of Representatives took the first step to invoke the Guarantee Clause by forming a Select Committee to examine the question. A few weeks later, however, Long was killed and the inquiry was abandoned.

By cutting this confrontation short, Long's assassin unintentionally revised the institutional and substantive outcomes that emerged from the New Deal. But for this shocking event, the Special Committee would have almost certainly issued a report defining: (1) which rights being infringed in Louisiana were fundamental; and (2) which institutional practices there were so abusive that they struck at the heart of self-government. Such a report, coming in the midst of the collapse in Lochnerian doctrine, would have been an authoritative act of constitutional interpretation on major issues such as incorporation, voting rights, and the status of political minorities that would have exerted a powerful influence on subsequent judicial decisions. From a structural standpoint, this heightened congressional involvement at the dawn of the New Deal would have set a critical precedent in support of a more cooperative system of constitutional development and weakened the claims of judicial exclusivity in interpretation. On the substantive side, congressional action or litigation challenging Long's dictatorship would have probably accelerated federal protection of voting rights and the incorporation of the Bill of Rights by nearly three decades while also creating new constitutional claims against state action.

Accordingly, this Article makes three significant contributions. First, it provides the first detailed treatment (in a law review context) of Huey Long's dictatorship. Second, it documents the last serious effort to use the Guarantee Clause, which disappeared from serious legal discourse after 1935. Third, it provides a window into a fascinating counter factual world that was only closed off by a highly improbable act.

Abstract:
This Essay explores the possibility that George W. Bush's political failure was the result of structural tensions created by the September 11, 2001 attacks that no president could have overcome. Drawing on the recent work of Stephen Skowronek and Keith Whittington, the paper observes that the Bush Administration was hopelessly split between its desire to maintain continuity with existing ideological commitments and the destabilizing thrust of its policies in the areas of foreign policy and domestic security. As a result, the transformative energy that propelled the invasion of Iraq and the reorganization of practices regarding the detention of enemy combatants and their interrogation probably spilled over into areas where the President had less freedom of action, most notably with his Social Security and comprehensive immigration reform proposals that ended up dividing his party.

Abstract:
This Essay argues that 35 U.S.C. s. 101 should be reinterpreted with respect to process patents by asking whether an "ordinary person skilled in the art" would consider the class of processes at issue patentable. After reviewing the debate over business method patents, the Essay concludes that the all-or-nothing approach advocated by most commentators (either reinstate the business method exception or let almost all of them in unless Congress creates a specific exemption) are flawed because they ignore the substantial costs that these patents are imposing and cannot overcome the inability to define a business method.

Furthermore, the imposition of patents on professions or communities that are hostile to them yields no real benefits and is actually harmful because it undermines sharing norms and gives defectors more leverage. Consequently, I propose expanding the "ordinary person" test of 35 U.S.C. s 103 to cover subject matter under s 101 and require claimants to show that a norm exists within the given business in support of process patents. The Essay concludes by considering the advantages and objections to this change with a particular eye towards how it would affect software patents.

Abstract:
This Article compares the evolution of unfair competition law following the Industrial Revolution with the development of copyright in the wake of the Information Revolution. In each period, reformers frustrated with the inability of courts and legislatures to adapt quickly to the new reality proposed more radical solutions. These "satellite doctrines" do not ultimately displace traditional principles, but they can develop a life of their own.

In the early twentieth century, orthodox trademark law was unable to provide protection necessitated by the growth of advertising. During those years, some scholars and judges proposed broad property rights for marks through misappropriation, dilution, and the right of publicity, which are still with exerting an influence on the law. In the current era, some are proposing theories of copyright that would dramatically reduce protection in response to the ability of digital technology to reduce publication and distribution costs. The Article concludes by assessing how these byproducts of the current transition in copyright might develop in the near term.

Abstract:
While Barack Obama's victory in 2008 was a watershed in the history of race relations, in all other respects his election was an unremarkable reaffirmation of a pattern that dates back to the dawn of the Republic. Every thirty years or so, a new political movement rises up against constitutional abuses that they blame on a prior generation of leadership that is out-of-touch with the concerns of ordinary Americans and precipitates a realignment of the party system.

This Essay examines the forces that shape this cycle and explores what it can tell us about how the Obama Administration will function in the coming years. Drawing on the literature about "generational cohorts," Part One explores the parallel between the rise of the Reagan Revolution in response to the big government malaise of the 1970s and the Obama movement, which was a response to state inaction in the 2000s. In each case, a series of crises shattered the prior ideological consensus and established new first principles about the role of government.

Part Two examines the obstacles that previous constitutional movements faced in their initial stage and applies those lessons to President Obama. (Update -- I'm in the process of revising this section in light of the ongoing health care debate.)

Abstract:
This Article examines how the failure of a broad and robust movement for constitutional change can displace the law in the opposite direction. The possibility of this legal false positive is a crucial missing link that explains why doctrine shifted so dramatically in the 1890s during the Populist Party's doomed attempt to achieve power. With its sharp attack on established principles and impressive popular support, the Populists triggered equally strong resistance from conservatives in the White House and the Supreme Court. That resistance was so intense that it warped the fabric of the law on issues including the role of the Commerce Clause, the meaning of the Fourteenth Amendment, and the incorporation of the Bill of Rights against the States. With this background, many of the great landmarks from this era and the modern interpretive assumptions drawn from them appear in a new light.

Abstract:
This Article proposes a new doctrinal test for assesing the scope of Congress's authority under the Commerce Clause and Section 5 of the Fourteenth Amendment. To clarify the muddled state of the law following the Supreme Court's decision in Gonzales v. Raich, the analysis reviews the precedents and shows that the operative standard in implied power disputes comes from the three Legal Tender Cases and not, as is commonly supposed, from McCulloch v. Maryland. Two of these cases on the validity of paper money set forth approaches that are invoked by the Court today. One says that the Justices should defer to congressional judgments about the affirmative scope of its power absent extraordinary circumstances. The other says the Court should balance the importance of a federal interest in regulation against any countervailing state interests.

The third framework discussed in the Legal Tender Cases, however, is not part of the current debate. That test holds that an exercise of federal power outside the core of an enumerated end should receive heightened scrutiny only when it is in the vicinity of a specific constitutional prohibition (i.e., when there is a colorable claim that a concrete right is affected). As the Article explains, this test offers a compromise that can protect important structural and textual principles without giving the Court unbounded discretion to displace national action.

Abstract:
This Article sheds new light on the original understanding of the Fourteenth Amendment by explaining how its drafters were influenced by the events surrounding President Andrew Jackson's removal of the Cherokees from Georgia. Few now know that this tragedy was a catalyst for the rise of the modern abolitionist movement and helped shape its ideology on questions ranging from the free exercise of religion to the meaning of equality. Indeed, when the Fourteenth Amendment was under consideration its authors expressly invoked both the Removal and the Supreme Court's opinion in Worcester v. Georgia as guideposts for construing the new constitutional text. After reviewing the historical evidence supporting this connection, the Article concludes by exploring how this new understanding might be relevant for contemporary doctrinal questions.

Abstract:
This Article examines Walter Bagehot's classic book on the English Constitution and applies his analysis to some contemporary constitutional issues. Part One focuses on: (1) Bagehot's distinction between 'dignified' or ceremonial institutions (such as the Crown) that legitimate government action and efficient bodies (like the House of Commons) that exercise that authority; and (2) the role of Lords-packing in conferring special authority on certain Acts of Parliament. Part Two explores his thoughts on our Constitution and his criticisms of separation of powers, federalism, and bicameralism. Part Three argues: (1) that our constitutional text is the dignified equivalent of the Crown, which sheds new light on the debate over originalism; (2) that the White House staff is the efficient counterpart to the President's Cabinet, which suggests that the White House staff should be subjected to Senate confirmation and frequent congressional testimony; and (3) that the British practice of treating certain statutes as part of their fundamental law can be sensibly incorporated into our discourse.

UPDATE: I am revising this to focus more attention on the legal fiction issue (Part III.1)

Abstract:
This Article examines how the law treats aesthetic product designs and other creative improvements that are incremental. Since the benefits of extending property rights to these improvements are matched by the costs of enforcing and monitoring such protection, policymakers have a hard time establishing a stable framework in this area. Thus, the paper considers other alternatives to encouraging this cumulative activity and concludes that the default solution for industrial design - importing cleverly designed products from abroad - is the best one.

Abstract:
This Article explores the debate over the presidential veto power during the 1830s and 1840s. Prior to this period, James Madison and other legal luminaries held that legislative precedent constrained the president's discretion in using this authority. Andrew Jackson repudiated this view, most famously with his veto of the Bank of the United States, and in so doing transformed the veto power into its modern form. That change was vigorously contested by the Great Triumvirate of Clay, Webster, and Calhoun and was not resolved until John Tyler faced down his own party on the issue in the early 1840s.

Furthermore, the Article shows how the veto debate fit into the broader legal struggle that accompanied the rise of Jacksonian Democracy. This generation represents an important missing link in our constitutional tradition, and recognizing the creativity of that period opens the door to many new insights about the foundations of our Republic.

Abstract:
This Article presents new material on Franklin D. Roosevelt's Court-packing plan and its relationship to the Child Labor Amendment (CLA), which was passed by Congress in 1924 but never ratified by the States.

While modern lawyers assume that state ratification of a constitutional amendment is incredibly difficult, my analysis shows that this interpretation only emerged in 1937 and was the deliberate product of FDR's campaign to discredit Article Five in favor of judicial "reform." When the CLA was passed, there was a consensus that state legislatures were little more than a rubber stamp for amendments. Indeed, foes of the CLA sought to block the proposal in Congress by seeking to require ratification by state conventions. Even after the CLA was blocked in the States during the 1920s and 1930s, that did not alter the basic premise that state legislative ratification was generally easy.

President Roosevelt changed all of this in 1937 by making the CLA into the paradigmatic case for Article Five instead of the exception that it actually was. He did this in two steps. First, he gave a high-profile endorsement to the proposal even though he knew that it was not going to be ratified anytime soon. Then he used that failure as a leading argument for Court-packing in his public statements about that proposal. This provoked a unorthodox response in Congress and a deep inquiry into Article Five that ended abruptly when the Supreme Court executed its switch-in-time on March 29, 1937.

By demonstrating that the view of state legislatures as a massive obstacle to constitutional change is largely a self-fulfilling construction, this Article hopes to provoke a new discussion about the merits of using the amendment process.