This Article suggests a conceptual reorientation of the modern doctrine. The proposal flows naturally from the Court’s rejection of its former view that one who accepts a government job has no constitutional right to complain about its conditions. As a result of that rejection, the bare fact of government employment is insufficient to undermine a citizen’s right to free speech. The baseline norm is instead one of parity between government workers and other citizens. To justify a deviation from the default of parity, there must be a meaningful reason beyond the employment relationship itself for viewing government officials as situated differently from their peers among the general public.

In reframing the jurisprudence around the legitimate bases for differential treatment of public employees and other citizens, parity theory outfits the modern doctrine with a firmer conceptual grounding. The theory also provides a method for addressing flaws that plague the existing law in its practical application. Perhaps most importantly, parity theory highlights a critical factor that has played an unduly limited role in the cases to date: the institutional mission of government instrumentalities.

This Article critically evaluates each of these theories. It argues first that business courts do not serve to attract companies from other states because business expansion decisions in the United States are rarely driven by the high quality of the courts in a particular jurisdiction. It next argues that business courts are unlikely to attract incorporation business because their core attributes are such that they are unlikely to compete successfully with the Delaware Court of Chancery. The Article goes on to argue that while the creation of a business court may in some cases serve to divert litigation business to local lawyers, the opportunities for diversion are relatively limited.

The Article then draws upon these insights to offer a number of suggestions as to how future business courts should be designed. It suggests that states seeking to attract technology companies should think twice before creating a business and technology court. It notes that major institutional reforms will be required if states wish to use business courts to attract incorporation business away from Delaware. It also identifies additional steps that states might take to more effectively attract litigation business. The Article concludes by evaluating the viability of several non-competition-based rationales for establishing business courts.

There are two concepts of invention currently in play in patent decisions. The first is an “external invention” definition, in which courts define the invention by the detailed technology discussion in the patent specification’s descriptions and drawings. Other decisions invoke a “claim-centered invention” definition, which relies almost exclusively on the claim, a single sentence at the end of the patent. Judging these two definitions against common patent theories can help to determine which best fits the theories’ narratives. This Article concludes that the external invention is more favorable because it grounds exclusivity in what the inventor has actually done or plans to do and, accordingly, is more likely to comport with common patent theories.

Put simply, the problem is this: there are three different remedial schemes for an Eighth Amendment violation, based on both the type of Eighth Amendment violation challenged and the timing of the violation. When a prisoner challenges a sentence prior to its imposition through proportionality analysis, courts have the power to strike the sentence down and order the release of an offender. When a prisoner challenges conditions of confinement that are ongoing in nature, the court has the power to order the cessation of those conditions or, in extreme cases, to order the release of prisoners. But when a prisoner challenges the infliction of past punishment, the prisoner may obtain only monetary damages.

This Article argues that if discrete instances of abuse are considered punishment and the Eighth Amendment prohibits the imposition of disproportionate or inhumane punishment, then there is no logical or doctrinal reason to limit the remedy for past violations to damages only. Some punishments, even if inflicted on only one occasion, can be so horrific so as to themselves amount to unconstitutional punishment. To continue to incarcerate an offender in that instance is to subject the prisoner to a total amount of punishment that is unconstitutional. When the State has no legitimate authority to impose additional punishment on the prisoner, the remedy of release, or a commensurate reduction in total length of imprisonment, should be considered.

This Essay draws on macroeconomic theory and the New Deal experience to examine the relationship between section 2 standards and macroeconomic stability. In particular, this Essay evaluates the claim that more aggressive section 2 enforcement focused on maximizing the welfare of consumers who purchase from monopolists would help forestall and ameliorate economic downturns. While empirical evidence confirms the Obama Administration’s claims that New Deal efforts to cartelize prices and wages exacerbated the Depression, this Essay argues that substitution of this novel and more intrusive “consumer welfare effects” test for the Bush Administration’s “disproportionality” standard would not stimulate aggregate demand, and may even reduce national output at the margins. Given the ambiguity in the aggregate impact of such enforcement, this Essay concludes that antitrust regulation should abandon any pretensions of being a tool for macroeconomic stabilization, and focus solely on identifying and condemning conduct that on balance results in a misallocation of resources and a reduction in total economic surplus. By keeping its microeconomic focus, antitrust regulation can help maximize the potential value of the gross domestic product, while monetary and fiscal policy produce sufficient aggregate demand to ensure full employment of society’s resources and to achieve that potential value.