Tag: Constitutional Law

Supreme Court Should Avoid Overhaul of Patent Protections


In the newest installment of my column for the Hoover Institution’s Defining Ideas, I look at Alice Corporation vs. CLS Bank International, a case that went before the Supreme Court for oral argument yesterday.

The case turns on the question of whether a computing method used in electronic funds transfers is patentable, a query ripe for a clear answer, given that a 10-judge panel on the Federal Circuit produced seven different opinions on the matter. Critics such as Professor Robin Feldman and the New York Times editorial board have argued that the practice is too abstract to deserve intellectual property protection. I have a different take, as I note in the piece:

Do Owners of a Corporation Waive Their Free Exercise Right? Hobby Lobby and the Right — and Duty — of Conscience


The United States Government suggests that, by adopting the corporate form, the Green family — owners of Hobby Lobby — waived their rights of conscience. The Government betrays a deep misunderstanding of its subject.

Conscience insists on rights, which our Constitution affords. Those rights are not guaranteed for any low purpose, to do merely as we please. Conscience connects us with the divine as each finds it. And through that connection, it imposes duties. What is commonly called the “right” of conscience, then, is merely the space to discharge those duties. Because those duties are undeniable, the corresponding rights are unalienable. As James Madison said in his Memorial and Remonstrance Against Religious Assessments, the right of conscience “is unalienable…because what is here a right towards men, is a duty towards the Creator.”

The Libertarian Podcast: Hobby Lobby, ObamaCare, and Religious Liberty


On this week’s installment of The Libertarian Podcast, I lead Professor Epstein through a discussion of the challenges to Obamacare’s contraception mandate currently before the Supreme Court. Is the right to religious liberty different (or non-existent) for corporations as opposed to individuals? Would allowing non-participation in the mandate create a slippery slope towards opt-out government? Is the Obama Administration’s case actually weakened by the fact that it’s already granted exemptions to explicitly religious organizations? Those are just a few of the questions Richard answers in this week’s episode

The Libertarian Podcast: Understanding Property Rights


In the latest installment of The Libertarian podcast, Professor Epstein takes us through a thorough consideration of the issue of property rights: how the Founders thought about them, when the courts started distorting them, and what can be done to restore them to reasonable strength. Take a listen:

Can California Make Laws For the Rest of the Nation?


That’s the question I examine in the newest installment of my column for Hoover’s Defining Ideas. California has recently enacted a series of carbon regulations so sweeping that they have the practical effect of regulating behavior throughout the nation. As I note in the column, it is, in my judgment, time for this issue to be heard by the Supreme Court.

The reason this case is so important is that California’s regulations essentially usurp the powers of the federal legislative branch. As I argue: