New Student Scholarship Discusses Conditional Resignations by Federal Judges and Patentability of Genes

Allison Luczak has published a new student comment in the Law Review on conditional resignations by federal judges. According to Luczak, conditional resignations – resignations of judges that are expressly conditioned upon certain terms or events such as the appointment of a successor by the President then in office – reflect the increased politicization of the appointments process. Although the power to submit a conditional resignation can be viewed as an aspect of life tenure, which in turn preserves judicial independence, Luczak points out that it may also subvert separation of powers because certain conditions may encroach upon the Executive and Legislative Branches’ powers of nomination and confirmation. Her comment discusses both the possibility of unconstitutional conditions and potential regulatory mechanisms to curb abuses.

The new issue of the Law Review also features a note by Ying Pan on the patentability of genes. Pan argues that although tens of thousands of gene patents have been granted over the past two decades, the Supreme Court’s 2007 decision in KSR Int’l Co. v. Teleflex, Inc. should have the effect of limiting the future patentability of genes based on the requirement of nonobviousness. The note concludes with a set of proposed criteria that would bring the USPTO’s examination guidelines for gene patents into compliance with KSR.

Both of these pieces can be accessed at the Law Review’s website.

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Bad Omens for Wisconsin in the Race to the Top

The U.S. Department of Education is expected to announce by the end of this week the finalists for the Race to the Top grants that have been dominating national talk about education lately. Forty states, plus the District of Columbia, put in proposals to get some of the huge pie of $4.35 billion to be awarded for the what federal officials conclude are the most potent proposals for raising achievement in schools and cities where results until now have been poor.

Don’t expect Wisconsin to be among those tapped to move into the next stage of the first round of grants.  

At least two national bloggers who keep eyes on the process made predictions this week on who will stay in the running, and neither picked Wisconsin. Bloggers on the widely-read Education Week Web page picked Florida, Louisiana, Massachusetts, Illinois, Tennessee, Rhode Island, Delaware, Indiana, Minnesota, and Colorado as finalists, and projected Florida, Louisiana, Massachusetts, Illinois, and Tennessee, as the states that would get first round grants that could run to $100 million or more.

Thomas W. Carroll, who blogs for the City Journal Web site, picked seven states as the most likely to win shares of the Race to the Top money. They are Florida, Louisiana, Tennessee, Colorado, Georgia, Delaware and Michigan.

There will be a second round of grants later this year, but Wisconsin is not likely to be in the center of contention then either, unless something happens that makes the state’s proposal appear like it’s going to change the status quo in more dramatic ways than the current proposal suggests.

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Federalism, Free Markets, and Free Speech

2not even-handed justiceThe Supreme Court decision in Citizens United v. FEC strikes down as unconstitutional a federal law that prohibits corporations and unions from using general treasury funds to make independent expenditures that expressly advocate the election or defeat of candidates for office.  The majority opinion, written by Justice Kennedy, ignores hundreds of years of Supreme Court history in interpreting the subjects of federalism, free markets, and free speech.  In its place, Justice Kennedy presents a textualist interpretation of the First Amendment that is divorced from any history or context.  Justice Kennedy engages in the sort of “faux originalism” (syn. “fake,” “artificial,” “false”) that has been criticized by Judge Richard Posner.  Kennedy places a historical glaze on his own personal values and policy preferences, and calls the result the “original understanding” of the First Amendment.

As such, Citizens United v. FEC stands with District of Columbia v. Heller, the Second Amendment case decided in 2008, as an example of the Justices slapping the “originalist” label on a profoundly un-originalist interpretation of the Bill of Rights.  It is appropriate to view the two cases together.  Both are exercises in raw political power employed in order to accomplish conservative objectives.  Both ignore hundreds of years of understanding about the meaning of the relevant constitutional provisions, in favor of a meaning derived by taking the words of the Amendment out of context.  And both embrace interpretations of the constitutional Amendment at issue that are inconsistent with the meaning ascribed to that same language by the intellectual father of originalism, Robert Bork.  In the same way that modern scholars deride the “Lochner era” as a misguided period in American Constitutional Law, I believe that future scholars and judges will recognize and reject the intellectual dishonesty of the “Heller era.”

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