FEATURED DEBATE
by Jason Rantanen & Lee Petherbridge & Jay P. Kesan
In September 2011, President Obama signed the most significant patent law overhaul in decades, the America Invents Act. The central change of the Act is to shift patent rights from the first to invent to the first to file, but the act also provides immunity for claims that an inventor deceived the Patent Office if the invention is not patentable. Professor Petherbridge and Professor Rantanen take on these changes, arguing that despite the stated goal of the Act, to stimulate innovation and job creation in the American economy, the Act may well do just the opposite. In response, Professor Kesan examines other sections of the Act, arguing that they provide more reason to be optimistic, and questioning whether the reasons Professors Petherbridge and Rantanen are pessimistic truly can be evaluated without better empirical evidence.
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FEATURED RESPONSE
by Luis Fuentes-Rohwer
Section 2 of the Voting Rights Act is a doctrinal mess. Through a totality of circumstances inquiry, Section 2 has evolved from its modest beginnings as a codification of the Fifteenth Amendment into a “mysterious judicial inquiry" that places the Supreme Court in the enviable position of policing the contours of the politics of race... Professor Elmendorf’s article is a welcome response to this state of affairs. He offers an understanding of Section 2 “as a delegation of authority to the courts to develop a common law of racially fair elections, guided by certain substantive and evidentiary norms, as well as norms about legal change.” This is a thoughtful and intriguing proposal...That said, I part company with Professor Elmendorf, if modestly so, in one crucial respect. His proposal requires much greater faith in the conservative Justices on the Court than the existing evidence allows me to endorse.
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by Guy-Uriel E. Charles
Voting rights law is in the midst of an existential crisis. The Voting Rights Act (VRA) is probably the most celebrated civil rights statute ever enacted by Congress. By most accounts, the central concern that gave rise to the VRA—racial animus against black voters and black candidates by white state and private actors—has, blessedly, retreated into the annals of history since the Act’s passage...Though isolated instances of racial animus in voting persist, and may be with us always, the VRA has replaced the systematic, state-sponsored racial exclusion that affected the rights of millions of American citizens seeking to participate in the political process with a new reality. Literacy tests are no more, at least as a feature of the electoral process; grandfather clauses are buried with the grandfathers; retaliation by private employers against black voters who dared to register to vote exists only in our memories, if at all; and few twenty-first century Americans could imagine that anyone would assault a voter or group of voters for exercising their right to vote, much less that the state would fail to prosecute such an attacker. The question then is what steps remain for voting rights policy.
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FEATURED ARTICLE
by Christopher S. Elmendorf
This Article develops a fresh account of the meaning and constitutional function of the Voting Rights Act’s core provision of nationwide application, Section 2, which has long been portrayed as conceptually opaque, counterproductive in effect, and quite possibly unconstitutional. I argue that Section 2 delegates authority to the courts to develop a common law of racially fair elections, anchored by certain substantive and evidentiary norms, as well as norms about legal change. The central substantive norm is that injuries within the meaning of Section 2 arise only when electoral inequalities owe to race-biased decisionmaking by majority-group actors, whether public or private. As an evidentiary matter, however, plaintiffs need only show a “significant likelihood” of race-biased decisionmaking, rather than proving it more likely than not. So cast (and with a few more details worked out), Section 2 emerges as a constitutionally permissible response to, inter alia, the largely unrecognized problem of election outcomes that are unconstitutional because of the racial basis for the electorate’s verdict—a problem that generally cannot be remedied through constitutional litigation. My account of Section 2 has numerous practical implications. Most importantly, it suggests that electoral arrangements that induce or sustain race-biased voting are vulnerable under Section 2, irrespective of their potentially dilutive effect on minority representation. My account also clears the ground for overruling the many Section 2 precedents that rest on the constitutional avoidance canon, and it helps to resolve a number of prominent circuit splits.
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