Rethinking Ableman v. Booth and States’ Rights in Wisconsin

Ableman v. Booth occupies a significant place in constitutional history for upholding the Fugitive Slave Act of 1850 and presenting the antebellum Supreme Court’s theory of federalism. This Note presents a new interpretation of the states’ rights movement in Wisconsin that necessitated the Supreme Court’s ruling in Ableman and argues that, viewed in this historical context, the decision was a complete failure. When a fugitive slave was captured in Milwaukee, Wisconsonites wished to reject the principles of the Fugitive Slave Act in response to the Kansas-Nebraska Act but were not yet willing to violate the law. The Supreme Court of Wisconsin enabled social change by providing the people with states’ rights as a legal basis to reject the Fugitive Slave Act. Federal attempts to vindicate the Fugitive Slave Act, culminating in Ableman, created a backlash that transformed states’ rights into a popular movement. Party politics exacerbated this backlash, as Republicans opportunistically used states’ rights against the more moderate Democrats. As a result, states’ rights controlled every major election in Wisconsin and nearly precipitated a civil war. Moreover, Ableman nearly pushed other states to use states’ rights to challenge the federal government, as national antislavery leaders hoped to use the theory for their own goals. Conflict was averted only because the theory became inconvenient for Republicans in the 1860 presidential election, not because of federal coercion resulting from Ableman.

Extraterritorial Patent Enforcement and Multinational Patent Litigation: Proposed Guidelines for U.S. Courts

Patent law is traditionally territorial in scope. With recent additions to the Patent Act, Congress, however, has taken action to expand the effective territorial scope of U.S. patents. Moreover, courts, in interpreting this recent legislation, have exhibited a willingness to expand further the reach of U.S. patent law. Concurrent with Congress’s and the judiciary’s struggle to resolve these questions regarding the territoriality of U.S. patents, the United States Court of Appeals for the Federal Circuit recently faced the question of whether U.S. courts should adjudicate claims based on foreign patents. The reluctance of U.S. courts to adjudicate foreign patent claims is inconsistent with recent decisions that seek to stretch U.S. patent law even further and with foreign courts that have adjudicated foreign patent claims. Given that an increasing number of entities hold patents on the same inventions in multiple jurisdictions, multinational patent litigation inevitably will continue to be a crucial issue in international patent law. This Note fills a gap in the academic literature by undertaking an examination of both extraterritorial patent enforcement and multinational patent litigation. This Note brings together divergent strands of research by examining both extraterritorial patent enforcement and multinational patent litigation. Ultimately, this Note suggests that courts should consider enforcing foreign patents in certain situations instead of trying to apply U.S. patents extraterritorially.

Anticipated Judicial Vacancies and the Power to Nominate

In July 2005, Justice Sandra Day O’Connor retired, but her retirement was expressly effective only upon the nomination and confirmation of her successor. As such, Justice O’Connor served on the Court for more than six additional months while the President nominated three different individuals to her seat and secured the confirmation of Justice Samuel A. Alito. 

This Note addresses a simple, but unaddressed question: what triggers the President’s constitutional power to nominate under the Appointments Clause? The Note argues that there is a vacancy prerequisite to the operation of the Appointments Clause that requires either an actual vacancy in the office to be filled, or a sufficiently definite and irrevocable anticipated vacancy in such an office. 

After briefly discussing the relatively recent development of the judicial retirement option, this Note turns to unique issues presented when life-tenured, Article III justices and judges retire. When an irremovable federal judge announces the intention to retire on some future date, that mere announcement does not create a sufficiently definite and irrevocable vacancy to trigger the operation of the Appointments Clause. Instead, the nomination and confirmation of successors upon anticipated judicial vacancies generate tension with the intended operation of the appointments process as well as underlying constitutional norms of judicial independence. Triggering the appointments process on a justice or judge’s intention to retire in the future may allow an “incumbent’s veto” over nominated successors, skew the advice and consent role of the Senate, delegate a removal-like power to the political branches, and establish a kind of “holdover judge” where vacancies would otherwise allow for the operation of the Recess Appointments Clause. 

This Note concludes that due to the considerable constitutional difficulties that are presented, the Executive should not assume the power to nominate is constitutionally triggered by anticipated judicial vacancies.