Causation and Harm in a Multicomponent World

On September 17, 2015, the Federal Circuit issued another decision in the epic Apple v. Samsung smartphone war. This was the fourth court decision in the ongoing saga to deal with injunctions. Apple IV explained the level of proof necessary to satisfy the "causal nexus" requirement. This requirement had emerged as a response to patent litigations involving products with thousands of features, the vast majority of which are unrelated to the asserted patent. To prove a causal nexus, patentees seeking an injunction have to do more than just show that the infringing product caused the patentee irreparable harm. The harm must be specifically attributable to the infringing feature. In Apple IV, the Federal Circuit noted that proving causation was "nearly impossible" in these multicomponent cases. So it decided to water down the causal nexus requirement saying that it was enough for Apple to show that the infringing features were "important"and customer sought these particular features. This lower standard is an ill-advised mistake that leaves multicomponent product manufacturers more susceptible to patent holdup. My critique takes two parts. First, I argue that a single infringing feature rarely, if ever, "causes" consumers to buy the infringer’s multicomponent products. The minor features at issue in Apple IV illustrate this point vividly. Thus, the new causal nexus standard does not accurately reflect how causation and harm operate in a multicomponent world. Second, I explain why the court was so willing to accept such little evidence of real injury. It improperly applied notions of traditional property law to patents. Specifically, the court viewed patent infringement as harmful regardless of any concrete consequences. This view may resonate for other forms of property where an owner's rights are paramount and a trespass is considered offensive in and of itself. But the same concepts do not apply to patent law where the Supreme Court has consistently said that private interests must take a back seat to the public good. Based on these principles, the courts should restore the "causal nexus" requirement and not presume causation.

High Value Lies, Ugly Truths, and the First Amendment

Lying has a complicated relationship with the First Amendment. It is beyond question that some lies – such as perjury or pretending to be a police officer – are not covered by the First Amendment. But it is equally clear that some lies, even intentionally lying about military honors, are entitled to First Amendment protection. U.S. v. Alvarez, 132 S. Ct. 2537 (2012). To date, however, both Supreme Court doctrine and academic commentary has taken for granted that any constitutional protection for lies is purely prophylactic – it protects the liar to avoid chilling truthful speech. This Article is the first to argue, contrary to conventional wisdom, that certain types of lies paradoxically advance the values underlying the First Amendment. Our framework is descriptively novel and doctrinally important insofar as we provide the first comprehensive post-Alvarez look at the wide range of lies that may raise First Amendment issues. Because there was no majority opinion in Alvarez, there is uncertainty about which standard of constitutional scrutiny should apply to protected lies, an issue we examine at length. Moreover, our normative claim is straightforward: when a lie has intrinsic or instrumental value it should be treated differently from other types of lies and warrant the greatest constitutional protection. Specifically, we argue that investigative deceptions – lies used to secure truthful factual information about matters of public concern – deserve the utmost constitutional protection because they advance the underling purposes of free speech: they enhance political discourse, help reveal the truth, and promote individual autonomy. A prototypical investigative deception is the sort of misrepresentation required in order for an undercover journalist, investigator, or activist to gain access to information or images of great political significance that would not be available if the investigator disclosed her reporting or political objectives. Tactical use of such lies have a long history in American journalism and activism, from Upton Sinclair to his modern day heirs. Using the proliferation of anti-whistleblower statutes like Ag Gag laws as an illustrative example, we argue that investigative deceptions are a category of high value lies that ought to receive rigorous protection under the First Amendment. At the same time, we recognize that not all lies are alike and that in other areas, the government regulation of lies serves legitimate interests. We therefore conclude the Article by drawing some limiting principles to our theory.

Opinions filed by the commissioners acting under the VII. article of the Treaty of Amity Commerce and Navigation between Great Britain and the United States of America : manuscript, 1797-1799

Opinions concerning the 7th article of the treaty.

Letter from Daniel Upton to James Savage, 1799 September 29

Daniel Upton wrote this letter from Machias, Maine on September 29, 1799; it is addressed to James Savage, who was then a freshman at Harvard College. In the letter, Upton advises Savage to study ardently, avoiding the temptation to procrastinate. He thanks Savage for having sent him a copy of "Mr. Lowell's oration" and sends greetings to a Mr. Holbrook and Mr. Jones. He also passes along the fond wishes of those in Machias who know Savage, including John Cooper and his wife, Phineas Bruce and his wife, and Hannah Bruce (Upton's future wife). Upton explains that he is writing the letter in a hurry because he is sending it on board with Captain Merryman, who is about to set sail, presumably for Boston.

Letters to George Simpson, 1796, 1806

Two letters to the cashier of the Bank of the United States requesting that funds be transferred to Andrew Bayard in Philadelphia, so that Paterson could receive his salary as associate justice of the U.S. Supreme Court.

Papers of Theophilus Parsons, 1778-1811

Bill to Timothy T. Ford for legal services performed from September 1778 to June 1779; letter to Judge Thomas Dawes regarding a probate case (1802); Parsons' report and opinion in the case of the proprietors of the Kennebec Purchase v. Boulton, et al. (1807); a statement of facts in the case of Brooks v. Dorr (1807); a note to Joseph Allen regarding a case (1810); and a letter to Foster regarding the Massachusetts Circuit Court of Common Pleas (1811).

Correspondence with Judge George Thatcher, 1789-1815

Correspondence from Tyng, who resided in Newburyport and Boston, to Congressman George Thacher of Maine, touching on a variety of political topics such as the judiciary act of 1789, the make-up of the United States Supreme Court, and the judges of the Massachusetts court system.

Read's Delaware cases, 1793-1794

Contains legal cases transcribed by George Read containing accounts of cases before the Delaware Supreme Court.

Letter to John Kean, 8 December 1787

Letter to Kean, member of the Continental Congress, regarding the filing of a bill.

Notice of trial in the case of Jonathan Fish [et al.] v. William Betts, 12 April 1774

Document addressed to Thomas Hicks (attorney for the defendant) informing him that Scott (attorney for the plaintiff) intends to bring the case to trial "at the next Supreme Court of Judicature to be held for the Province of New York." Signed by Scott.

Lawyer's case book containing notes of cases adjudged and determined in the courts of Delaware, 1793-1796

Lawyer's case book containing notes on cases before the Delaware Supreme Court and Delaware Court of Common Pleas. Contains information on the cases and judgements.

Letter to Samuel Dexter, 13 November 1796

Letter regarding a bankruptcy case, later heard by the U.S. Supreme Court in 1797 (3 Dallas 369; Emory v. Greenough) and the upcoming national election.

Deed to Joseph Woodward, 29 November 1786

Deed for a parcel of land in Braintree, Massachusetts.

Letters and legal opinion, 1798-1823

Legal opinion on an equity case (1798). Four letters to an unnamed correspondent (1801) regarding a shipment of papers; Joseph Hopkinson, member of Congress (1817) regarding a judiciary bill; a note (1818) to the cashier of the Bank of Columbia; and to Charles T. Mercer (1823) regarding property in Loudoun County, Virginia. Folder also contains newspaper clippings (ca. 1830-1842) regarding Washington's life and career, including one taken from the Journal of Law.

Notes on cases in Lennox and Worcester, 1789

Contains notes on cases before the Supreme Court in Lennox and Worcester, Massachusetts relating to counterfeiting, libel, and fraud.