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Volume 73, Issue 7 (April 2024)

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The Past as a Colonialist Resource

Deepa Das Acevedo | PDF

Originalism’s critics have failed to block its rise. For many jurists and legal scholars, the question is no longer whether to espouse originalism but how to espouse it. This Article argues that critics have ceded too much ground by focusing on discrediting originalism as either bad history or shoddy linguistics. To disrupt the cycle of endless “methodological” refinements and effectively address originalism’s continued popularity, critics must do two things: identify a better disciplinary analogue for originalist interpretation and advance an argument that moves beyond methods.

Anthropology can assist with both tasks. Both anthropological analysis and originalist interpretation are premised on the goal of cultural translation—that is, on rendering holistic worldviews from another time-place intelligible to the translator’s own context. Likewise, both anthropology and originalism often rely on a particular interpretive device—the Reasonable Man (or Reader)—to achieve their translational goals. This Article is the first to recognize the true goal of originalism as applied cultural translation.

But analogizing to anthropology also reveals that originalism’s greatest weakness is political and ethical rather than methodological. Pressing cultural translation into the service of state power is an inextricably colonialist endeavor: it does violence to those against whom translational insights are applied by taming and supplanting their worldviews based on racialized and gendered disparities of power. Nineteenth- and twentieth-century colonizing powers often literally used anthropological research to buttress their authority over colonized peoples. Today, originalist jurisprudence intentionally reinforces the political oppression of historically marginalized groups within the United States by magnifying the views of their historical oppressors. But whereas anthropology can exist independent of its use by political powers, originalism is inseparable from statecraft. By drawing on lessons learned in anthropology, this Article demonstrates that originalist analysis—however methodologically sound—is problematic because it uses the past as a colonialist resource.

Uncreative Designs

Sarah Burstein | PDF

It is often said that the standards for patent protection are higher than the standards for copyright protection. Specifically, commentators assert that the copyright requirement of originality is easier to satisfy than the patent requirements of novelty and nonobviousness. And yet, the USPTO regularly grants patents for designs that fall below the low standard of copyright originality set by the Supreme Court in Feist v. Rural. Some may suggest that the existence of these “sub-Feist” design patents is a result of the USPTO abandoning its duty to scrutinize design patent applications. Or they may suggest that it is a result of the Federal Circuit making it more difficult to invalidate designs as anticipated or obvious. This Article argues that sub-Feist designs exist because the standard for “originality” (at least, in the sense of “minimal creativity”) is not really “lower” than novelty or nonobviousness—it’s just different. This has implications for how we think about the law and theory of copyright and patents as well as specific implications for design patent law and practice. Importantly, this suggests that we should take the word “original”—which is also an explicit statutory requirement for design patents—seriously. We should not assume that a design that qualifies, under the Patent Act, as “novel” and “nonobvious” is also “original” under the Feist standard. And if, as the Supreme Court has held, the Feist originality standard is a requirement of the Progress Clause, we should not let applicants use design patents to evade that requirement.


Stare Decisis and Remedy

Melissa Murray | PDF

Much ink has been spilled on the Roberts Court’s approach to stare decisis and precedent. Such commentary is hardly surprising. In just the last five years, the Court has overruled extant precedents on issues that range from abortion and jury convictions to property rights and public unions. It has also substantially narrowed and limited existing precedents, curbing the reach of earlier decisions in ways that disrupt and distort the jurisprudential landscape.

Some view the Court’s uneven approach to precedent as ideologically determined. As these critics maintain, the Court adheres to precedents that are consistent with the views of its six-member conservative supermajority while jettisoning or narrowing those precedents that do not accord with those ideological priors.

This Essay takes a different tack. Specifically, it argues for reading the Roberts Court’s approach to precedent and stare decisis through the lens of remedy. That is, the Court’s treatment of precedent might be understood, whether in whole or in part, as animated by a desire to rectify an earlier error or injustice. To be sure, this impulse is not merely corrective—the Court’s approach to stare decisis goes beyond correcting what it views as jurisprudential errors. Instead, the Court’s approach seems marked by an interest in identifying and righting a past wrong. Recent cases like Dobbs v. Jackson Women’s Health Organization, New York State Rifle & Pistol Association, Inc. v. Bruen, and Ramos v. Louisiana accord with this interpretive frame. In these cases, the Court departed from—or overruled—earlier decisions in part to remedy past racial injustices. Likewise, in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, the Court dismissed the extant precedent upholding the limited use of race-conscious admissions policies on the view that “[e]liminating racial discrimination means eliminating all of it.”

Viewing the Roberts Court’s approach to stare decisis through a remedial lens is clarifying. It helps us to understand—and better anticipate—the Court’s treatment of earlier decisions. Understanding the Court’s approach to stare decisis as a form of remedy renders more legible the Court’s conception of legal injuries—and, in particular, racialized injuries. As this Essay explains, the Roberts Court’s remedial approach to stare decisis is often deployed to correct what a majority of the Court views as a racial injustice. In some cases, like Ramos v. Louisiana, this remedial impulse focuses on correcting historic injustices wrought by white supremacy and historic acts of racism.

But critically, a remedial lens may also render visible a reparative logic that unites a series of recent cases involving religious freedom, gun rights, and affirmative action. Although these cases focus on distinct doctrinal questions, they share a unifying impulse: the Court’s apparent desire to remedy injuries done to Christian conservatives, working-class whites, and, more generally, white people. In this regard, viewing the Court’s decisions through a remedial lens may provide a more coherent account—across legal doctrines—of the Roberts Court’s understanding of discrimination, the injuries it produces, and its apparent victims.


The Return of Three-Judge Constitutional Courts

Matt Queen | PDF

State courts wield the authority to elevate state constitutional protections above those afforded by the U.S. Constitution. That power is great—so great that some legislatures have intervened in constitutional adjudication, purportedly to undermine forum shopping and check a single judge’s influence. Accordingly, North Carolina and Tennessee require that three-judge trial courts hear constitutional challenges to state laws. These courts echo twentieth-century congressional efforts to trim federal courts’ equitable jurisdiction. They also present new and familiar drawbacks spawned by their federal ancestors.

This Note examines these new constitutional courts through several lenses: their historical context, political development, advantages, and drawbacks. Although both current forms of the three-judge state constitutional court are flawed, this Note argues that safeguarding state constitutional adjudication is a worthy endeavor. Indeed, several reforms to current three-judge courts—including random selection and efficiency measures—could maximize these courts’ advantages and mitigate their shortcomings. But, overall, these courts present a legitimate opportunity to balance the interests of legislatures and litigants in constitutional adjudication.