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Volume 62, Issue 1
Can the CEO Learn from the Condemned? The Application of Capital Mitigation Strategies to White Collar Cases

By Todd Haugh | 62 Am. U. L. Rev. 1 (2012)

Ted Kaczynski and Bernie Madoff share much in common.  Both are well-educated, extremely intelligent, charismatic figures.  Both rose to the height of their chosen professions—mathematics and finance.  And both will die in federal prison, Kaczynski for committing a twenty-year mail-bombing spree that killed three people and seriously injured dozens more and Madoff for committing the largest Ponzi scheme in history, bilking thousands of people out of almost $65 billion.  But that last similarity—Kaczynski’s and Madoff’s plight at sentencing—may not have had to be.  While Kaczynski’s attorneys tirelessly investigated and argued every aspect of their client’s personal history, mental state, motivations, and sentencing options, Madoff’s attorneys offered almost nothing to mitigate his conduct, simply accepting his fate at sentencing.  In the end, Kaczynski’s attorneys were able to convince the government, the court, and their client that a life sentence was appropriate despite that he committed one of the most heinous and well-publicized death penalty-eligible crimes in recent history.  Madoff, on the other hand, with almost unlimited resources at his disposal, received effectively the same sentence—150 years in prison—for a nonviolent offense.  Why were these two men ultimately given the same sentence?  And what can Madoff, the financier with unimaginable wealth, learn from Kaczynski, the reclusive and remorseless killer, when it comes to federal sentencing?

No "Direction" Home: An Alternative Approach to Joint Infringement

By W. Keith Robinson | 62 Am. U. L. Rev. 59 (2012)


Software startups in the United States continue to create new technologies that provide a high degree of interactivity among consumer devices such as mobile phones. To protect their innovations, many companies acquire patents that contain method claims covering interactive technology.  These claims may require more than a single party to perform all the required steps.  To successfully enforce a patent when more than one party performs all of the steps of a claimed method, the Federal Circuit recently held that the patentee must show that one of the alleged infringers induced the infringement of the other party.  As a result, where inducement is not present, parties can use and benefit from new interactive technologies without liability for patent infringement.  Several commentators have suggested that patentees can avoid this fate by drafting better claims.  Unfortunately, given today’s advances in technology, even expert claim drafting cannot protect patentees from an unauthorized use of their innovative method.  Accordingly, this loophole in the law should be closed.


COMMENT: Outfoxing Alaska Hunters: How Arbitrary and Capricious Review of Changing Regulatory Interpretations Can More Efficiently Police Agency Discretion

By Brian J. Shearer | 62 Am. U. L. Rev. 167 (2012)

The Supreme Court’s 2009 decision in FCC v. Fox Television Stations, Inc. undermined the controversial Alaska Hunters doctrine by stating that the Administrative Procedure Act (APA) treats initial and subsequent agency actions in the same way.  Applied to rulemaking, Fox would have the APA treat initial regulatory interpretations and subsequent revisions of those interpretations in the same way, in direct conflict with the Alaska Hunters doctrine’s requirement of notice and comment for certain revisions.

COMMENT: Why Can't We Be Friends? The Banning of Teacher-Student Communication Via Social Media and the Freedom of Speech

By Giulia M. di Marzo | 62 Am. U. L. Rev. 123 (2012)

Undoubtedly, the sexual abuse of children by authority figures, particularly teachers and coaches, has been an issue of national concern for years.  Recently, there have been several high-profile child sexual abuse scandals in the news, such as the ordeal involving Jerry Sandusky, a former Pennsylvania State University football coach, who was convicted of forty-five child sexual abuse counts for sexually abusing ten male children over the course of fifteen years.  In an effort to prevent these tragic occurrences, state and school district officials have targeted social media as the culprit.