50 U. Mich. J. L. Reform Caveat 1 (pdf)
On March 20, 2015, Robert Kastenmeier, who represented Wisconsin’s Second Congressional District from 1959 to 1991, passed away at his home in Arlington, Virginia. Though Kastenmeier may not have been well known outside of legislative circles and his home state of Wisconsin, he was in fact one of the most prolific policy makers—if not the most prolific policy maker—in the field of intellectual property law in the 20th century. He is impressively credited with authoring more than forty-eight laws dealing with intellectual property matters during his legislative tenure, including the Copyright Act of 1976, which remains the primary legal framework for copyright law in the United States.
One of the last bills that Kastenmeier introduced in the House of Representatives was a major piece of patent reform legislation dubbed the Patent Competitiveness and Technological Innovation Act of 1990 (PCTIA). Kastenmeier introduced the bill on September 20, 1990, but left office less than four months later on January 3, 1991, after losing an election to Scott Klug. The PCTIA contained five separate titles, and dealt with subjects as varied as the patentability of inventions made in outer space to the repeal of state sovereign immunity from infringement liability. One of those titles, Title IV, garnered little attention at the time, but addressed a subject of tremendous importance today: the need to codify and strengthen the long-standing common law research exemption in American patent law.
I have written elsewhere about the political economy of the research exemption in American patent law from 1970 to the present day, with an emphasis on analyzing the political coalitions that have historically argued in favor of or against such exemptions, and the economic arguments they often invoke. The purpose of this article, in contrast, is to carry forward the torch that Kastenmeier lit, and argue in favor of codifying a robust research exemption. To that end, section two briefly explains how the law pertaining to research exemptions has developed since 1970, with an eye towards understanding what these developments mean for policy makers. Section three summarizes the findings of relevant survey evidence and statistical studies. Section four critiques several scholarly proposals for a research exemption or proposals that attempt to accomplish similar ends through different means, like the proposal for creating a “fair use” exception in patent law, or for modifying the Bayh-Dole Act to give federal funding agencies more discretion when determining whether the results of publicly-funded research should be patented. Section five concludes by summarizing the basic argument in favor of the Robert Kastenmeier Memorial Act, a new bill to codify a robust research exemption in American patent law.
Sherman J. Clark*
49 U. Mich. J. L. Reform Caveat 63 (pdf)
In this essay, I argue that law schools should continue to encourage and support wide-ranging legal scholarship, even if much of it does not seem to be of immediate use to the legal profession. I do not emphasize the relatively obvious point that scholarship is a process through which we study the law so that we can ultimately make useful contributions. Here, rather, I make two more-subtle points. First, legal academics ought to question the priorities of the legal profession, rather than merely take those priorities as given. We ought to serve as Socratic gadflies—challenging rather than merely mirroring regnant assumptions about what ought to matter in and to the law. Second, the freedom to serve this role is a large part of what attracts people capable of doing so to academic life. If we were to insist that legal scholars think about only those things that already matter to the legal profession, we would not attract the people we most need—people willing and able to help us rethink our assumptions about what ought to matter.
Sherman J. Clark*
49 U. Mich. J. L. Reform Caveat 52 (pdf)
Law teachers use the phrase “Socratic method” loosely to refer to various methods of questioning students in class rather than merely lecturing to them. The merits of such teaching have been the subject of spirited and even bitter debate. It can be perceived as not only inefficient but also unnecessarily combative—even potentially abusive. Although it is clear that some critics are excoriating the least defensible versions of what has been called the Socratic method, I do not attempt to canvas or adjudicate that debate in this brief essay. Rather, I hope to add to the conversation by looking to a document that describes the origin and original aim of this method. If our teaching practices have indeed been abased or abused such that they too-often resemble the most pejorative caricatures, perhaps we can recover a better and more appealing vision of our tradition by looking to its purported roots.
Andrew J. Clopton*
49 U. Mich. J. L. Reform Caveat 16 (pdf)
Current federal law allows companies to exclude their youngest workers from participating in 401(k) and other pension plans. Public policy should encourage young workers to contribute to retirement as early as practicable, rather than impose obstacles to saving. Workers who begin saving even a few years earlier improve their retirement security and reduce the likelihood they will be dependent on the government later in life. While “age discrimination” is conventionally thought of as the mistreatment of older workers, this concept applies equally to employees who are differentiated based solely on their young age. Thus, Congress should amend the Internal Revenue Code to prohibit retirement savings discrimination on the basis of (young) age.
Kyle Anne Piasecki*
49 U. Mich. J. L. Reform Caveat 32 (pdf)
The Clean Air Act imposes a federal regulatory regime on a number of sources of air pollution. It does not, however, provide a ready means of relief to individuals harmed by air polluters. Nevertheless, many courts have held that the Clean Air Act preempts state common law tort claims that do provide a means to such relief. The disparate benefits of the Clean Air Act and common law tort claims may indicate different purposes and make court-imposed preemption of common law tort claims improper. This Comment argues that the Savings Clause in the Clean Air Act and in parallel state statutes should be clarified so as to explicitly preserve an injured party’s ability to seek relief through state common law.
49 U. Mich. J. L. Reform Caveat 1 (pdf)
“Money now, terms later” agreements, or rolling contracts, are commonplace in consumer transactions. Courts frequently allow these agreements to stand. But problems arise when product manufacturers disclaim a warranty that protects consumers, such as the implied warranty of merchantability, without disclosing the disclaimer upfront—effectively rendering the warranty useless. Suppose, for example, a consumer purchases a refrigerator or computer where the implied warranty of merchantability disclaimer is printed on the last page of a thick instruction booklet. The booklet is hidden deep inside the box, buried in a morass of cords and paperwork. The consumer has no way of knowing about the disclaimer until after she purchases and opens the product. Even then, the disclaimer is quite difficult to find. These “hidden disclaimers” appear to conflict with § 2-316 of the Uniform Commercial Code (UCC), which requires that disclaimers be conspicuous. Nevertheless, some courts have upheld hidden disclaimers under a narrow reading of § 2-316.
4 U. Mich. J.L. Reform 28A (pdf)
Marriage equality has come to much of the nation. Over 2014, many district court rulings invalidated state proscriptions on same- sex marriage, while four appeals courts upheld these decisions. However, the Sixth Circuit reversed district judgments which struck down bans in Kentucky, Michigan, Ohio, and Tennessee. Because that appellate opinion created a patchwork of differing legal regimes across the country, this Paper urges the Supreme Court to clarify marriage equality by reviewing that determination this Term.
W. Patrick Conlon*
4 U. Mich. J.L. Reform 20A (pdf)
In June 2012, the United States Supreme Court found mandatory life-without-parole sentences against juvenile offenders unconstitutional in Miller v. Alabama.1 The Court determined that because children possess “immaturity, impetuosity, and [fail] to appreciate risks and consequences,” they are fundamentally different than adults.2 Although Miller invalidated every juvenile mandatory life-without-parole (JMLWOP) statute across the United States, there is no clear indication regarding whether Miller retroactively applies to juveniles sentenced to mandatory life-without-parole before the Court’s ruling.3 As a result, states are split on whether to apply Miller retroactively.4
Fifteen states have yet to decide whether Miller applies retroactively, while several other states have either (1) declined to give Miller a retroactive effect or (2) passed legislation that does not apply Miller retroactively or provide for resentencing for JMLWOP.5 This Comment evaluates why the States should apply Miller retroactively.
4 U. Mich. J.L. Reform 11A (pdf)
First love is only a little foolishness and a lot of curiosity.
-George Bernard Shaw
Teenagers will explore their sexuality; this is no new phenomenon. However, the ways that teens are exploring their curiosity is changing with technology. This trend has serious repercussions for teens, society, and the law. ‘Sexting’—defined as the act of sending sexually explicit photographs or messages via cell phone1—is one recently-developed means of sexual exploration. The practice overlaps with the production, distribution, and possession of child pornography that is banned by both state and federal law.2 Due to the overlap, minors have been prosecuted under child pornography statutes for producing or sending images of themselves or other minors.3 This is not the proper use of child pornography prosecution, nor is it a solution to the problem of minors sexting. This Comment argues that minors should be a protected class against which child pornography charges cannot be brought. The solution to the sexting problem does not lie in prosecution. Instead, states should incorporate sexting education into state sexual education and health curricula. Education will help ensure that minors are aware of the risks associated with sexting, without being harmed under a statute that is meant to protect them.
4 U. Mich. J.L. Reform 1A (pdf)
This football season, millions of Americans enjoying their favorite pastime might feel pangs of a guilty conscience. Years of scientific research into the long-term neurological effects of tackle football and a recent settlement between the National Football League (NFL) and thousands of retired NFL players1 have made football-related traumatic brain injuries (TBI) a topic of national conversation. Current and former NFL players2 and even President Obama3 have participated in the conversation, saying that they would hesitate to let their sons play the game for fear of possible brain injury. Because research has uncovered signs of permanent brain damage in players as young as eighteen-years-old, and has suggested that everyday subconcussive blows4 during football practice could be the cause of such brain damage,5 one scientist has called for a ban on tackle football at the youth level.6 In light of these findings, current state laws are inadequate to address the very real risks associated with youth tackle football. In general, these laws do not attempt to prevent concussions, but rather address treatment for concussions following the injury. Furthermore, state laws entirely fail to address the daily, subconcussive blows suffered by youth players. To fully protect their youngest football players from the devastating effects of football-related TBIs, state legislators should ban tackle football for children under fourteen-years-old.