Helen A. Anderson*
Ask any lawyer what an “amicus curiae” is, and you will be told that the term means “friend of the court.” The term has positive, even warm, connotations. Amicus briefs provide additional information or perspectives to assist courts in deciding issues of public importance. Interest groups, law professors, and politically engaged lawyers are happy to participate in important cases through such briefs. Amicus curiae participation is defended as democratic input into what is otherwise not a democratic branch of government.
*Professor of Law, University of Washington School of Law. The author wishes to thank her colleagues at the University of Washington School of Law who attended a presentation of this article, and especially Thomas Cobb, Lisa Manheim, Kate O’Neill, Kathy McGinnis, Zahr Said, and David Ziff for their excellent suggestions. Elizabeth Porter read a draft and provided much expertise and encouragement. The author also wishes to thank the participants at the West Coast Rhetoric Workshop at the William S. Boyd School of Law (2012), and, in particular, Linda Edwards and Jeanne Moreno for their helpful comments on an earlier draft.
. See Black’s Law Dictionary 98 (9th ed. 2009) (defining “amicus curiae” and also noting “friend of the court” as an alternative term).
. See, e.g., Ruben J. Garcia, A Democratic Theory of Amicus Advocacy, 35 Fla. St. U. L. Rev. 315, 319–20 (2008); Ryan Salzman, Christopher J. Williams & Bryan T. Calvin, The Determinants of the Number of Amicus Briefs Filed Before the U.S. Supreme Court, 1953–2001, 32 Just. Sys. J. 293, 294–95 (2011); Omari Scott Simmons, Picking Friends from the Crowd: Amicus Participation as Political Symbolism, 42 Conn. L. Rev. 185, 190 (2009).
Jeremy W. Bock*
“We don’t know exactly how often the presumption makes a difference to a case outcome.”
In patent law, the presumption of validity exerts a profound influence on litigation strategy. It has attracted criticism—not only from academics but also from at least one federal judge—for making weak patents difficult to invalidate. When mentioned to the jury, the presumption is perceived by litigants as exerting a powerful pro-patentee influence that overshadows its nominal procedural function of assigning the burden of proving invalidity.
* © 2015 Jeremy W. Bock. Assistant Professor of Law, University of Memphis Cecil C. Humphreys School of Law. The author thanks Bernard Chao, John Golden, Richard Gruner, Parisa Jorjani, Mark Lemley, Su Li, Evelyn Mak, Shawn Miller, Lisa Larrimore Ouellette, Efthimios Parasidis, Greg Reilly, David Schwartz, Ryan Vacca, Michelle Yang, his colleagues at Memphis Law, and the participants at the June 2013 Workshop on Research Design for Causal Inference at Northwestern University School of Law, the Fifth Annual Legal Scholars Conference at Arizona State University College of Law, PatCon4 at University of San Diego School of Law, the 2014 SEALS Conference, and the 14th Annual Intellectual Property Scholars Conference at Berkeley Law for helpful discussions and feedback. The author thanks the University of Memphis Cecil C. Humphreys School of Law for supporting this research. The survey experiment reported in this article was conducted pursuant to a protocol approved by the Institutional Review Board at the University of Memphis.
. Doug Lichtman & Mark A. Lemley, Rethinking Patent Law’s Presumption of Validity, 60 Stan. L. Rev. 45, 70 (2007).
. 35 U.S.C. § 282(a) (2012) (“A patent shall be presumed valid.”).
. For example, accused infringers may prioritize noninfringement defenses over invalidity defenses because of the heightened burden associated with proving invalidity. See, e.g., Roger Allan Ford, Patent Invalidity Versus Noninfringement, 99 Cornell L. Rev. 71, 118 (2013) (observing that “the elevated burden of proof that applies to invalidity, . . . which stems from the statutory presumption that a patent is valid unless proved otherwise, makes it relatively more difficult to win an invalidity defense than a noninfringement defense even if the two defenses would otherwise have similar merits”).
. See, e.g., F. Scott Kieff, The Case for Preferring Patent-Validity Litigation Over Second-Window Review and Gold-Plated Patents: When One Size Doesn’t Fit All, How Could Two Do the Trick?, 157 U. Pa. L. Rev. 1937, 1955 (2009) (“[A] weakening of the presumption of validity would be particularly good for the ‘Davids’ of the system who face off against the ‘Goliaths.’ It directly protects them from the in terrorem effect of junk patents . . . .”); Lichtman & Lemley, supra note 1, at 47 (“[T]he law makes [patent] issuance mistakes hard to reverse. The culprit is a legal doctrine known as the presumption of validity.”).
. See William Alsup, Memo to Congress, A District Judge’s Proposal for Patent Reform: Revisiting the Clear and Convincing Standard and Calibrating Deference to the Strength of the Examination, 24 Berkeley Tech. L.J. 1647, 1648 (2009) (“A central reason for the litigation boom is the presumption of validity and the ‘clear and convincing’ standard. . . . This presumption of validity applies equally to all patents—even those that are almost certainly invalid. This is a huge advantage for the patent holder—and it is often an unfair advantage . . . .”).
. See, e.g., William G. Childs, The Implementation of FDA Determinations in Litigation: Why Do We Defer to the PTO but Not to the FDA?, 5 Minn. Intell. Prop. Rev. 155, 172 (2004) (“The psychological impact of this presumption of validity is difficult to measure. However, it is not insignificant that a jury is instructed by the one nominally neutral person in the courtroom that it must begin deliberations with the belief that the patent is valid.” (emphasis omitted)).
Margot E. Kaminski*
Intellectual inquiry has long been a private activity, protected by norms, laws, and physical constraints. Librarians have shielded readers’ records; states have passed reader privacy laws; and printed books do not track your favorite passages unless you underline them. But the advent of the search engine, public video platforms, and the e-book have resulted in a drastic reduction in the normative and structural constraints that once protected the privacy of our intellectual endeavors.
*Assistant Professor of Law, Ohio State University Moritz College of Law. J.D., Yale University; B.A., Harvard University.
**Practicing attorney in California. J.D., U.C. Berkeley School of Law; B.A., Stanford University; M.S., Stanford University. The authors wish to thank Chris Wolf of Hogan Lovells for workshopping a draft of this paper at the Privacy Law Scholars Conference. Many thanks also go to Marc J. Blitz, Yan Fang, Anne Klinefelter, Ron Lee, William McGeveran, Neil Richards, Lior Strahilevitz, and other participants at PLSC. Thank you also to Matthew Cushing, Mike Frank, and Rachel Mackenzie.
. BJ Ard, Confidentiality and the Problem of Third Parties: Protecting Reader Privacy in the Age of Intermediaries, 16 Yale J.L. & Tech. 1, 3 (2013); see Harry Surden, Structural Rights in Privacy, 60 SMU L. Rev. 1605, 1617 (2007).
A revolution has happened in prenatal testing. Ushering in this change is a new prenatal test that relies on a simple blood sample collected from a pregnant woman. From the beginning of pregnancy, cell-free fetal DNA travels across the placental lining into the mother’s bloodstream, increasing in quantity as the pregnancy progresses. Potential parents can test that DNA for chromosomal abnormalities and for fetal sex after ten weeks of gestation, which is several weeks before a reliable ultrasound and seven weeks before an amniocentesis can be performed. As numerous newspaper and popular media articles report, what women can discover during their pregnancies will continue to evolve dramatically over the next ten years. This new non-invasive prenatal test (“NIPT”), coupled with advances in gene sequencing, could give parents information about all manner of traits, disorders, and propensities—from susceptibility to serious diseases, such as cancer and heart disease, to superficial traits, such as hair and eye color. The test is easy to perform, close to 100% accurate for fetal sex, and currently in clinical and commercial use.
*Associate Professor of Law, Temple University Beasley School of Law. Many thanks to Jane Baron, Nancy Dowd, Mark Fenster, Paul Gugliuzza, Janet Halley, Meredith Harbach, Dave Hoffman, Prabha Kotiswaran, Tom Lin, Laura Little, Greg Mandel, Muriel Morisey, Danielle Piñol, Mark Rahdert, Brishen Rogers, Hila Shamir, and Chantal Thomas for their comments. This article benefited from the remarks of participants at the Emory Law Workshop on Reproduction and Sexuality, Northeastern Law Workshop on Sexuality and Reproduction, Emerging Family Law Scholars Workshop, Harvard Institute on Global Law and Policy, Wisconsin Law Class Crits Conference, Tel Aviv University Governance Without a State Conference, Case Western Law & Medicine Conference, and Temple Law 10/10 Workshop.
. See Henry T. Greely, Get Ready for the Flood of Fetal Gene Screening, 469 Nature 289, 289 (2011).
. Id. at 290.
. Stephanie A. Devaney et al., Non-Invasive Fetal Sex Determination Using Cell-Free Fetal DNA, 306 J. Am. Med. Ass’n 627, 634 (2011) (stating that fetal DNA can be tested accurately between seven and twelve weeks of gestation while ultrasound is unreliable before eleven weeks); 105 Am. Jur. 3d, Proof of Facts § 3 (3d ed. 2009) (indicating that amniocentesis is performed at about sixteen weeks gestation). In amniocentesis, a long spinal needle is inserted through the abdomen and the wall of the uterus into the amniotic sac surrounding the fetus. Id. Another form of prenatal testing is Chorionic Villus Sampling (“CVS”), in which a thin catheter, inserted through the cervix, gathers cells from the placenta. Id. CVS can occur earlier than amniocentesis, at ten to twelve weeks. Id. However, CVS has a slightly higher risk of causing miscarriages than amniocentesis. Lynn B. Jorde et al., Medical Genetics 269 (4th ed. 2010).
. See, e.g., Lindsay Abrams, Prenatal Testing: Earlier and More Accurate Than Ever, Atlantic (Nov. 5, 2012, 9:30 AM), http://www.theatlantic.com/health/archive/2012/11 /prenatal-testing-earlier-and-more-accurate-than-ever/264472/2/; Erin Biba, This Simple Blood Test Reveals Birth Defects—And the Future of Pregnancy, Wired (Dec. 24, 2012, 6:30 AM), http://www.wired.com/2012/12/ff-prenatal-testing/all/; Carolyn Y. Johnson, DNA Blood Test Can Detect Prenatal Problems, Bos. Globe (Feb. 26, 2014), http://www.bos tonglobe.com/lifestyle/health-wellness/2014/02/26/new-study-suggests-prenatal-genetic-tes ts-could-offered-all-pregnant-women/V1GQuRL4jkr1M6Oe1XcQCK/story.html; Jonathan Lapook, New DNA Test Could Revolutionize Prenatal Screening, CBS News (Feb. 26, 2014, 7:20 PM), http://www.cbsnews.com/news/new-dna-test-could-revolutionize-pre-natal-screening/; Marilynn Marchione, The Big Story: DNA Blood Tests Show Prenatal Screening Promise, Associated Press (Feb. 26, 2014, 6:07 PM), http://bigstory.ap.org/article/ dna-blood-tests-show-prenatal-screening-promise; Steven Salzberg, A DNA Sequencing Breakthrough That Many Expectant Moms Will Want, Forbes (Mar. 9, 2014, 8:00 AM), http://www.forbes.com/sites/stevensalzberg/2014/03/09/a-dna-sequencing-breathrough-th at-many-expectant-moms-will-want/; Michael Specter, The Gene Factory, New Yorker Jan. 6, 2014, at 34, 40, available at http://www.newyorker.com/magazine/2014/01/06/the-gene-factory; Rob Stein, Blood Test Provides More Accurate Prenatal Testing for Down Syndrome, Nat’l Pub. Radio (Feb. 26, 2014, 5:01 PM), http://www.npr.org/blogs/health /2014/02/26/282095202/blood-test-provides-more-accurate-prenatal-testing-for-down-syndr ome; Christopher Weaver, Tough Calls on Prenatal Tests: Companies Race to Promote New Genetic Screen for Down Syndrome; Worries About Patient Confusion, Wall St. J., Apr. 4, 2013, at B1, available at http://online.wsj.com/news/articles/SB1000142412788732 4883604578398791568615644.
. See Bernard M. Dickens, Ethical and Legal Aspects of Non-Invasive Prenatal Genetic Diagnosis, 124 Int’l J. Gynecology & Obstetrics 181, 181–82 (2014) (“What was once a cavernous divide between the outer reaches of imaginative science fiction and the reality of the limited capacity of prevailing biotechnology is becoming progressively narrowed, making it foreseeable to achieve complete gene sequencing of an early fetus in utero by resort to cffDNA testing.”); Jaime S. King, And Genetic Testing for All . . . The Coming Revolution in Non-Invasive Prenatal Genetic Testing, 42 Rutgers L.J. 599, 599–600, 656 (2011) (noting that non-invasive prenatal tests relying on cffDNA can detect Down syndrome, trisomy 13, fetal sex, and other genetic characteristics); John A. Robertson, Abortion and Technology: Sonograms, Fetal Pain, Viability, and Early Prenatal Diagnosis, 14 U. Pa. J. Const. L. 327, 370–73 (2011) [hereinafter Robertson, Abortion and Technology].
. Ashwin Agarwal et al., Commercial Landscape of Non-Invasive Prenatal Testing in the United States, 33 Prenatal Diagnosis 521, 521–23 (2013) (“Several applications of NIPT . . . are already in use, and testing for common chromosomal aneuploidies such as trisomies 13, 18, and 21 became commercially available in 2011.”); Antina de Jong et al., Non-Invasive Prenatal Testing: Ethical Issues Explored, 18 Eur. J. Hum. Genetics 272, 272 (2010) (noting that testing can be easy and safe); Abrams, supra note 4 (noting that the test can be completed with 99.92% accuracy).
The Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution provide that the federal and state governments shall not deprive persons of life, liberty, or property without due process of law. More than a guarantee of procedural due process, it is now well settled that a “substantive component” of the clauses protects “individual liberty against ‘certain government actions regardless of the fairness of the procedures used to implement them.’” Government cannot “infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” Substantive due process law and doctrine are thus established (but, for some, controversial) features of constitutional law. In a recent ruling, the Sixth Circuit rejected a challenge to anti-same-sex marriage laws and held, among other things, that the Due Process Clause did not provide or protect a fundamental right to marry a person of the same sex.
*Alumnae Law Center Professor of Law, University of Houston Law Center. J.D., 1984, University of Pennsylvania Law School; B.A., 1980, Wilberforce University. The author acknowledges and is thankful for the research support provided by the Alumnae Law Center donors and the University of Houston Law Foundation.
. See U.S. Const. amend. V (“No person shall . . . be deprived of life, liberty, or property, without due process of law.”); id., amend. XIV § 1 (“No State shall . . . deprive any person of life, liberty, or property, without due process of law”).
. Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)).
. Reno v. Flores, 507 U.S. 292, 302 (1993).
. “Substantive due process” is a phrase “that borders on oxymoron.” Akhil Reed Amar, America’s Unwritten Constitution: The Precedents And Principles We Live By 119 (2012); see also John Hart Ely, Democracy And Distrust: A Theory of Judicial Review 18 (1980) (“‘[S]ubstantive due process’ is a contradiction in terms—sort of like ‘green pastel redness.’”).
. See McDonald v. City of Chicago, 561 U.S. 742, 811, 130 S. Ct. 3020, 3062 (2010) (Thomas, J., concurring in part and concurring in the judgment) (“The notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.”); see also Philip Bobbitt, Constitutional Fate: Theory of the Constitution 147 (1982) (“Substantive due process is not a function of politically aggressive judges who have lost their heads and are acting as would-be legislators, abandoning any sense of judicial self-restraint. Rather, the doctrine is the necessary product of the superimposition onto a state system of plenary authority, of a federal court system committed to preserving those individual liberties that animated the limited federal Constitution.”).
. Deboer v. Snyder, 2014 U.S. App. LEXIS 21191, at *55 (6th Cir. Nov. 6, 2014).
In 1998 Congress enacted the Digital Millennium Copyright Act (“DMCA”) in order to “provide certainty for copyright owners and Internet service providers with respect to copyright infringement liability online.” The DMCA safe harbors protect Internet and online service providers such as YouTube from secondary copyright infringement liability. The DMCA, however, does not provide full protection as certain caveats greatly reduce the safe harbor protection, disqualifying a service provider from protection if it is “aware of facts or circumstances from which infringing activity is apparent.” Courts and commentators refer to this level of awareness as “red flag” knowledge. If the service provider obtains red flag knowledge of infringing activity, it must act “expeditiously to remove, or disable access to, the material,” or be subject to liability. As the DMCA currently stands, the red flag knowledge provision constricts safe harbor protection to the point where online service providers are being held liable when they have actively attempted to comply with the statute. Because compliance with the law in its current form is so difficult, the open accessibility of video-sharing websites is in jeopardy.
*J.D. Candidate 2015, University of Richmond School of Law; B.A. 2012, University of Virginia. I am highly grateful to my parents for their never-ending support. I would like to thank Morgan Ackerman, Alex Fisher, and Caroline Lamberti for their valuable revisions and suggestions throughout the writing process. I would also like to thank the editors and staff of the University of Richmond Law Review who sacrificed many hours to make this publication possible.
. S. Rep. No. 105-190, at 2 (1998).
. See 17 U.S.C. § 512 (2012).
. Id. § 512(c)(1)(A)(ii).
. See, e.g., Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19, 31 (2d Cir. 2012) (defining “red flag” knowledge).
. § 512(c)(1)(A)(iii).