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Holning Lau, Comparative Perspectives on Strategic Remedial Delays, 91 Tul. L. Rev. 259 (2016).

The issue of same-sex marriage offers illustrative examples of judicial actions triggering backlash. Consider the 1993 Hawaii Supreme Court case of Baehr v. Lewin.  The court ruled that same-sex couples’ inability to marry warranted strict scrutiny, one of the most stringent forms of constitutional review, and the court remanded the case.  By requiring strict scrutiny, the court positioned Hawaii to become the first jurisdiction in the world to legalize same-sex marriage.  On remand, the trial court held that Hawaii’s ban on same-sex marriage failed strict scrutiny.  The state appealed, but the unpopularity of Hawaii’s judicial decisions pushed the political process to outpace litigation.  While the state’s appeal was pending, opponents of same-sex marriage mobilized to pass a constitutional amendment that stripped the courts of power to decide the constitutionality of same-sex marriage bans.

Holning Lau, Comparative Perspectives on Strategic Remedial Delays, 91 Tul. L. Rev. 259, 268 (2016) (citing Michael D. Sant’Ambrogio & Sylvia A. Law, Baehr v. Lewin and the Long Road to Marriage Equality, 33 U. Haw. L. Rev. 705, 716-18 (2011)) (internal citations omitted).

Alexandra K. Langton, Comment, The Inconsistent Limits of the Commerce and Import-Export Clauses on Territorial Governments’ Taxing Ability, 69 Tax Law. 883 (2016).

Unlike the other unincorporated territories, American Samoa lacks federal judicial presence; thus, it is not under the jurisdiction of any federal district court.  See Adam C. Clanton, How to Transfer Venue When You Only Have One: The Problem of High Profile Criminal Jury Trials in American Samoa, 29 U. Haw. L. Rev. 325, 326 (2007).

Alexandra K. Langton, Comment, The Inconsistent Limits of the Commerce and Import-Export Clauses on Territorial Governments’ Taxing Ability, 69 Tax Law. 883 (2016).

Mark A. Lemley, The Surprising Resilience of the Patent System, 95 Tex. L. Rev. 1 (2016).

Jeremy Bock has documented the proliferation of patents resulting from corporate patent-generating practices, including what he calls “patent harvesting,” which “creates an artificial incentive to patent among employee-inventors,” and portfolio management strategies that reward agents for increasing their patent yield every year.

Mark A. Lemley, The Surprising Resilience of the Patent System, 95 Tex. L. Rev. 1, 41, 41 n.196 (2016) (citing Jeremy W. Bock, Patent Quantity, 38 U. Haw. L. Rev. 287 (2016)).