Patent Infringement as Criminal Conduct
Criminal and civil law differ greatly in their use of the element of intent. The purposes of intent in each legal system are tailored to effectuate very different goals. The Supreme Court’s recent decision in Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011), however, imported a criminal concept of intent — willful blindness — into the statute for patent infringement, a civil offense, despite these differences. This importation of a criminal law concept of intent into the patent statute is novel and calls for examination. This Article compares the purposes behind intent in criminal law with the purposes behind intent in patent law to demonstrate that this importation does not achieve the policy goals of the patent regime. Criminal law jurisprudence requires an intent element for three reasons: to ascribe a level of moral blameworthiness to an act, to separate criminal from civil liability, and to shield otherwise innocently acting defendants from criminal punishment. Patent infringement actions, by contrast, lack an intent element because they almost exclusively seek to remedy economic harms. The importation of criminal concepts of knowledge into the patent infringement statute may therefore lead to unwanted consequences, particularly, higher-than-warranted burdens of proof for patent holders. To this end, equating criminal mental states to civil ones risks treating patent infringement as criminal conduct. This Article concludes by proposing that courts should examine the purposes of mental state requirements on a statute-by-statute basis.
Straddling the Civil-Criminal Divide: A Bifurcated Approach to Understanding the Nature of Immigration Removal Proceedings
This article argues that the Supreme Court's designation of immigration removal proceedings as civil, rather than criminal, and the body of scholarship critiquing that civil designation both suffer from a common fatal flaw. Both treat immigration removal proceedings as a monolith, a single entity. In fact, packed within the term "immigration removal proceedings" are two distinct entities, "expulsion proceedings" and "exclusion proceedings," which each require independent analysis to ascertain their civil or criminal nature. Expulsion proceedings, as I define them, involve the decision whether to cast out a noncitizen whom the United States has previously invited into the national community as a lawful permanent resident. Exclusion proceedings, in contrast, involve the decision whether to admit a noncitizen into the physical territory of the United States and/or into the American political community. By bifurcating the analysis of immigration removal into independent analyses of expulsion and exclusion proceedings we are able to resolve otherwise contradictory guidance from both doctrine and history. A detailed analysis of the historical treatment of expulsion and exclusion proceedings and application of the modern Supreme Court jurisprudence delineating the civil-criminal divide provide compelling evidence that exclusion proceedings are civil but that expulsion can only be imposed as a criminal punishment. The redesignation of expulsion proceedings as criminal would represent a sea change in the conception of immigration removal proceedings; however, this article will demonstrate that criminal protections can be applied in expulsion proceedings without fundamentally undermining the government's interest in those proceedings.
Changing one's prejudiced ways: Awareness, affect, and self-regulation
In this chapter, we review and integrate efforts related to the internal conflict people experience over their often automatic prejudiced tendencies. We first describe the Should-Would Discrepancy questionnaire, which assesses people's awareness of responding with greater prejudice than their standards prescribe. Results from numerous studies showing awareness of prejudice-related discrepancies and examining validity issues are summarised. Studies examining the affective consequences of discrepant responses are then reviewed. The development and testing of a model concerning the self-regulation of prejudiced responses are described. The model explains how people establish cues for control, which facilitate the inhibition of prejudiced responses. Finally, acknowledging that people sometimes fail to self-regulate their prejudiced responses, we review recent investigations concerning the effects of confrontation by others on the subsequent control of prejudiced responses.