Is the Constitution failing? In what ways and how should we respond? Is it time to rewrite the Constitution?
On November 7, 2014, scholars from across the country met at the University of Wisconsin Law School to consider these crucial questions during a Symposium hosted by the Wisconsin Center for the Study of Liberal Democracy. Participants were invited to submit pieces on the topic, and Wisconsin Law Review is publishing the essays in its first-ever WLR Online Symposium. WLR Online is publishing the articles throughout the Spring 2015 semester, so please continue to check back for new additions.
Michael A. Carrier
In Limelight Networks, Inc. v. Akamai Technologies, Inc., the Supreme Court addressed the relationship between direct infringement under § 271(a) of the Patent Act and induced infringement under § 271(b). The Court held that a defendant could be liable for inducing infringement of a patented process only if a single party would have been liable for performing all of the steps constituting direct infringement. In this short article, I provide the background to the opinion, discuss the ruling, and offer four lessons.
Michael A. Carrier is a Distinguished Professor at Rutgers School of Law.
From a Scream to a Whisper: The Supreme Court Does Little to Fix Its Bankruptcy Court Mess (Executive Benefits Insurance Agency v. Arkison (In re Bellingham))
Jonathan C. Lipson
Say what you will about Justice Clarence Thomas: unlike the protagonist in Elvis Costello’s paean to libidinal frustration, his unanimous opinion in Executive Benefits Insurance Agency v. Arkison (In re Bellingham), certainly resists many temptations left by its predecessor, Stern v. Marshall, to define what bankruptcy courts can and cannot do. Rather than take on Stern’s grand systemic concerns—the nature of the Article III “judicial power” —Bellingham whimpers out on a technicality, concluding that problems created by Stern can be statutorily “severed” and thus resolved with the slice of a judicial knife. [. . .] This essay briefly summarizes the problems created by Stern and five ways in which Bellingham failed to fix them.
Jonathan C. Lipson is the Harold E. Kohn Professor of Law at Temple University, Beasley School of Law.
Brian J. Levy
In January 2014, the Court of Appeals for the Third Circuit became the fifth circuit court to hold that a habeas corpus procedural rule — exhaustion — bars habeas petitioners from advancing all cumulative error arguments when they failed to raise cumulative error in their state court proceedings. Only one circuit — the Fifth Circuit — allows petitioners to raise cumulative error for the first time in his or her habeas appeal. This Essay argues that the plurality has erred.
Matthew L.M. Fletcher & Nicholas J. Reo
This is a reply to Jason Sanders’s student comment, Wolves, Lone and Pack: Ojibwe Treaty Rights and the Wisconsin Wolf Hunt, 2013 Wis. L. Rev. 1263.
Professor Matthew L.M. Fletcher is Professor of Law, Michigan State University College of Law, and Director of the Indigenous Law and Policy Center, and an Enrolled Member of the Grand Traverse Band of Ottawa and Chippewa Indians. Professor Nicholas J. Reo is Assistant Professor at Dartmouth College in the Native American and Environmental Studies Departments. Professor Reo is also an Enrolled Member of the Sault Ste. Marie Tribe of Chippewa Indians.